Sardar Dalip Singh vs Rakesh Kumar

Rakesh Tiwari, J.—Heard counsel for the parties and perused the record.

The matrix of the case is that Respondent-landlord filed release application registered as P.A. Case No. 6 of 1999 u/s 21(1)(a) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as "U.P. Act No. XIII of 1972") before the Prescribed Authority, Najababad, on the ground of need for himself.

The release application was contested by the Petitioner-tenant denying the plaint allegation.

The Prescribed Authority after hearing the counsels for the parties and on appreciation of evidence, allowed the release application vide decree dated 24.9.2000. The order was challenged by the Petitioner in Rent Control Appeal No. 6 of 2003 before the District Judge, Bijnor and transferred to the Court of Additional District Judge, Court No. 6, Bijnor. The appeal too was dismissed vide judgment dated 6.9.2006. Aggrieved the Petitioners have challenged the orders of Prescribed Authority and appellate court in the instant writ petition.

Contention of counsel for the Petitioner is that the appellate court has dismissed the appeal without following the procedure laid down in Section 22 read with Section 34 of U.P. Act No. XIII of 1972. In support of his contention, he placed reliance on the decisions in Smt. Balqis Jehan Begum v. Mohd. Khalil Khan and Ors. 1987 (1) ARC 59; Surendra Kumar Sharma v.XII Ith Additional District Judge, Kanpur and Ors. 1986 (1) ARC 204 and Hori Lal v.X Ith Additional District Judge Lucknow and Anr. 1995 (1) ARC 483, wherein it has been held that judgment of appellate court should be based on reasons and discussions on question of dispute. He submits that in the instant case, neither the appellate court has recorded a finding on bona fide need nor considered the arguments raised by the Petitioner as is apparent from paragraph 8 of the judgment of the appellate court.

He also submits that the landlord is required to prove his bona fide need even if alternate accommodation is available to the tenant as Explanation (i) to Section 21(1)(a) of U.P. Act No. XIII of 1972 does not raise any presumption with regard to bona fide need, which is in regard to the residential accommodation. In the present case, dispute is with regard to the shop, as such, landlord is required to prove his bona fide need but he failed to prove so as he is already engaged in the business of sale of ''ghee''. In support of his contention, he placed reliance upon the decisions in Sudha Agrawal v. Xth Additional District Judge, Varanasi and Ors. 1999 (2) ARC 440 : 1999 (4) AWC 2825 ; Nathu Ram v. Special Judge (D.A.A.) Jhansi and Ors 1993 (1) ARC 171 : 1993 (1) AWC 294 and Yogendra Nath Agarwal v. District Judge, Moradabad and Ors. 1993 (1) ARC 553 wherein it has been held that requirement of landlord has to be proved as bona fide even if case falls under Explanation (1) to proviso (i). Landlord is not exempted from proving his bona fide need. There is no presumption in his favour that when case falls under Explanation (i) to proviso fourth of Section 21(1). In the present case, the averment of the Petitioner in the rejoinder-affidavit was that the Respondent had carried on the business of sale of ''ghee'' till 1998 and since the said shop of ''ghee'' came to the share of his brother, without disclosing the details of partition, the release application was filed. He vehemently urged that the alleged theory of partition is not proved by any cogent evidence. In support of his contention, he relied upon the decisions in Raj Pal (since dead) v. Special Judge (E.C. Act), Etah and Anr. 1999 (2) ARC 640 ; Mrs.H. William (since deceased) through Legal Representatives v. 1st Additional District Judge, Jhansi and Anr. 1999 (2) ARC 620 ; Vinod Kumar Arora Vs. Surjit Kaur, and Sobaran Singh and Anr. v. Shyam Singh 2004 (2) AWC 1994, wherein it has been held that parties cannot be permitted to travel beyond their pleading. No evidence can be looked into with regard to which there is no pleading.

He further urged that the courts below have failed to consider the provisions of Rule 16 (2) (a) which is mandatory while the Petitioner is doing the business of sale of mobile oil and light diesel since 1971 from the shop in dispute. In support of this contention, he placed reliance on the decision Natthu v. Amar Nath Agarwal and Ors. 1996 (1) ARC 494, wherein it has been held that provisions of proviso fourth as inserted by U.P. Act No. 28 of 1976 are mandatory. This proviso contains a command from Legislature to prescribed authority to read it with Rule 16 (2) (a) while considering release application. Failure to comply with such mandatory command vitiates the decision.

Relying upon the decision in Ram Bali Misra and Anr. v. Dr. Rajendra Kumar Gurudev and Anr. 1978 ARC 377, holding that the word ''bona fide'' indicates the need should be an honest one and not for purpose of satisfying his whim or fancy, he contended that in the instant case, need of the landlord is wholly fabricated as he is already carrying on the business of sale of ''ghee'' and his one more shop is lying vacant.

He next argued that the courts below failed to consider the second proviso of Section 21(1) of U.P. Act No. XIII of 1972 as tenant is entitled for two years'' rent as compensation. In support of his contention, he placed reliance on the decisions in Atul Agrawal v. Prescribed Authority/Vth Additional Civil Judge, Meerut and Ors. 1995 (2) ARC 515 and Kanak Singh v.VI Ith A.D.J., Saharanpur and Ors. 2000 (1) ARC 376, wherein it has been held that compensation provided in second proviso to Section 21(1)(a) of U.P. Act No. XIII of 1972 is mandatory.

Counsel for the Petitioner submitted that the shop in question belongs to one Sri Prem Chand Jain who is no more in this world and the same has been inherited by his two sons and wife, as such, the Respondent is only co-owner but he filed the release application claiming himself as exclusive owner. The release application is not at all maintainable on this ground alone. In support of this contention, he drew the attention of the Court towards paragraphs 8, 10 and 12 of the decision inSurdayal Saran Prasad v. District Judge Dehradun and Ors. 1997 (2) ARC 535. Paragraphs 8, 10 and 12 of the aforesaid decision are quoted below:

Where a word or expression has been defined in a statute, the Courts have to read and accept its meaning as contained in the definition itself. It cannot add or subtract any word to or from the meaning nor can it assign a meaning different from the one used in the definition on the ground of general understanding of the term.

....

Under Clause (g) of Section 3 of the present Act it is not essential for a person in order to be landlord of a building that rent must actually be paid to him. What is required is that the rent must be payable to him. In the present case even as per the own admission of the Plaintiff and his brothers the death of his mother, rent became payable to the Plaintiff and his brothers and sisters and Plaintiff also realized rent for himself and on behalf of his brothers and sisters. He alongwith his brothers and sisters thus became ''landlords'' as per the definition contained u/s 3(g) of the Act and not the Plaintiff alone.

....

A plain reading of Section 106 of the Transfer of Property Act makes it clear that every notice under the section must be in writing signed by or on behalf of the person giving it. It would be a different situation where a notice of termination is sent on behalf of all co-lessors by one co-lessor under his signatures, such a notice could be treated to be a notice on behalf of all co-lessors but where the notice is given by only one person claiming himself to be the sole landlord but the evidence proved that even as per the admission of the landlord there were co-landlords and they have not joined the Plaintiff in the notice or in the suit, the notice of ejectment and of demand under the Rent Control Act would be invalid.

Lastly, the contention of counsel for the Petitioner is that new plea or relevant fact in the rejoinder-affidavit has been deprecated in Lakshmi Narain Sharma Vs. District Board, Gazipur, wherein it has been held that it is the duty of the Petitioner to state fully the facts upon which he relies. In the affidavit or affidavits accompanying the Petitioner and the practice of disclosing facts which the Petitioner deems to be relevant only in the rejoinder-affidavit is one which the High Court will discourage. He, therefore, urged that the impugned orders may be quashed by this Court.

Per contra, counsel for the Respondent urged that the judgment and orders passed by the courts below are strictly in accordance of law and since they are concurrent findings of fact, this Court should not interfere with the same in the writ jurisdiction.

I have patiently heard the arguments advanced by learned Counsels for the parties and have also perused the record. There is no two opinion about the law laid down in the aforesaid cases but a perusal of impugned judgments clearly shows a different picture. The Prescribed Authority has recorded the following finding of fact:

In view of the aforesaid finding of fact, which has been affirmed by the appellate court, as well as the law laid down by Hon''ble the Apex Court in a catena of cases has held that Act No. XIII of 1972 applied with full force to residential as well as commercial buildings, since admittedly, the tenant has got alternate accommodation, Explanation (i) to Section 21(1) of the Act automatically applies to the facts of the instant case, which is as under:

Explanation.-In the case of a residential building:

(i) where the tenant or any member of his family who has been normally residing with him or is wholly dependent on his has built or has otherwise acquired in a vacant state or has got vacated after acquisition a residential building in the same city, municipality, notified area or town area, no objection by the tenant against an application under this Sub-section shall be entertained.

The Petitioner tenant having acquired alternate accommodations, he has no legal right to continue in possession of the disputed accommodation.

There is no illegality or infirmity in the orders impugned warranting interference in the writ jurisdiction.

Accordingly, the writ petition fails and is dismissed. The Petitioner shall vacate the disputed accommodation within three months from today and will make payment of entire arrears of rent to the Respondent-landlord within the same period. If the accommodation is not vacated and arrears of rent are not paid within the aforesaid period, the Petitioner shall be evicted from the disputed accommodation by coercive process in accordance with law with the aid of local police and the arrears of rent shall be recoverable as arrears of land revenue.