Smt. Rajbala Tonk vs Additional District & Sessions Judge, 1st F.T.C., Haridwar & Another

Sudhanshu Dhulia, J.

Mr. Arvind Vashishta, Senior Advocate assisted by Mr. Bharat Singh Mehra, Advocate, present for the petitioner.

Ms. Seema Shah, Brief Holder, present for the State/respondent no. 1.

Mr. Rakesh Thapliyal, Advocate with Mr. Xitij Kaushik, Advocate, present for respondent no. 2.

It is an extremely old matter pertaining to the year 2004. This is a landlord writ petition pertaining to the Rent Control Act. The writ petition itself is of the year 2004. The matter was initiated on an application moved by the landlord under Section 21(1)(a) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (from hereinafter referred to as the "Act"). The tenant contested the application denying that the petitioner is his landlord and that there exists a landlord-tenant relationship between them.

The Prescribed Authority after hearing both the parties came to the conclusion that there was a landlord-tenant relationship on the fact that earlier the petitioner had filed a suit for rent and eviction against the tenant, in which the tenant had sought time under sub-section (4) of Section 20 of the Act, whereby he deposited the entire rent claimed by the landlord before the first date of hearing. Since he did that, in effect, he accepted the landlord-tenant relationship between the two by depositing the rent and the Prescribed Authority accepted that the applicant/petitioner is the landlord. Therefore, it is no more open for the tenant/defendant to raise the plea that the petitioner is not his landlord.

Thereafter, the Prescribed Authority came to the conclusion that the property was purchased by the petitioner in the year 1992 from one Virendra who has given the power of attorney to one Subodh Kumar whom admittedly the tenant was giving the rent earlier. Subsequently, after the sale deed being executed in favour of the petitioner, the respondent no. 2 became the tenant of the petitioner. Thereafter, the petitioner moved a release application before the Prescribed Authority on the ground of bona fide need. There was also a discussion on the comparative hardship. Subsequently, the property was released in favour of the petitioner vide order dated 17.02.1999. The order of the Prescribed Authority was challenged by the tenant/respondent no. 2 under Section 12 of the Act before the Additional District and Sessions Judge, 1st F.T.C., Haridwar, who has remanded back the matter to the Prescribed Authority on the plea taken by the tenant in the appeal, during the pendency of the appeal, that the land on which the building was being constructed is a "Nazul" land and has been declared as "freehold" in favour of the tenant, and therefore, the petitioner is no more the landlord of the property. This order was challenged by the petitioner before this Court by means of the present writ petition, which is pending before this Court since 2004.

Learned Senior Counsel for the petitioner Mr. Arvind Vashishta would argue that the appellate court has committed a patent error by remanding the matter back to the Prescribed Authority that too on ground that during the pendency of the appeal, the land has been made freehold in favour of the tenant.

The contention of the learned Senior Counsel for the petitioner appears to be correct as what the Prescribed Authority and the Appellate Court primarily had to see was as to whether firstly there was a landlord-tenant relationship between the two and secondly in case there is a landlord-tenant relationship between the two, whether the landlord had a bona fide need and the application admittedly was filed under Section 21(1)(a) of the Act and thereafter examine the comparative hardship. The Appellate Court had not discussed either the bona fide need of the landlord or the comparative hardship and has straightaway remanded the matter back on ground which has no direct relationship to the issue. What was required by the Appellate Court was to give a finding on the relationship between the landlord and the tenant which is the central issue in the matter, which has not been done.

Learned Senior Counsel for the petitioner as well as learned counsel for respondent no. 2 have thereafter pleaded that the Appellate Court has to give a finding on this, which in the opinion of the Court is the correct way to examine the matter.

Consequently, the writ petition is allowed. The order dated 15.12.2003 passed by the Appellate Court is hereby set aside. The matter is remanded back to the Appellate Court for fresh adjudication of the matter in the light of the above observations.

Since the matter is extremely old, it is hereby directed that it shall be taken up on a priority basis on a day-to-day hearing, without granting any undue adjournments to any of the parties so that a decision is taken at the earliest.