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1989 DIGILAW 760 (ALL)

Parwati Devi v. 4th Addl. District Judge, Lucknow

1989-10-26

S.N.SAHAY, U.C.SRIVASTAVA

body1989
JUDGMENT S.N. Sahay, J. - A learned single judge of this court being of the view that the question raised in the writ petition was involved in large number of cases and as such it was desirable that the same may be decided by a Division Bench, it not being necessary to refer it to a Full Bench as this question did not directly arise in Mangi Lal v. Additional District Judge (1980 ARC 55) to which reference has been made on behalf of opposite parties in support of their plea. The following question has been referred: Whether Explanation (i) read with the Note thereto, to Section 21(1) of U.P. Act No. XIII of 1972 would be attracted in a case where the public building allotted to a member of the tenant's family is not available for residence by the tenant and other members of the tenant's family by virtue of the terms and conditions of the allotment which preclude the allottee from allowing them to share that building with himself for purposes of residence. 2. The original landlord, now represented by his heirs and legal representatives Smt. Parvati Devi, filed an application for release of his premises agamst the tenant. The application was dismissed by the prescribed authority. Thereafter an appeal was filed. During the pendency of appeal, one son of opposite party was allotted accommodation by the Lucknow University in teacher's quarters. The petitioners amended the grounds of appeal and it was pleaded that opposite party was barred from raising any objection to the petitioner's application in view of Explanation (i) to Section 21 of U.P. Act XIII of 1972. The Addilional District Judge hearing the appeal held that the said Explanation could not apply inasmuch as the other accommodation acquired by the tenant's son was not adequate for the tenant's need. It was contended that he was the owner and landlord of House No. 71/83, Terhi, Bazar, Rakabganj, Lucknow in which he resided and carried on Ayurvedic Medical Practice, and a portion of which comprising of one room, verandah, latrine and water tap on the first floor and a kitchen and store in the second floor is still in the tenancy of opposite party No. 3. The disputed house which is the landlord's house has got a big roof on the ground floor which was in possession of the landlord. 3. The disputed house which is the landlord's house has got a big roof on the ground floor which was in possession of the landlord. 3. The plea of tenant in respect of other house was that because of enlargement of family, the additional accommodation has been used in which the children carry on their studies. The learned judge who referred the matter was of the view that the University will come within the meaning of 'Public Sector Corporation' within Section 3(p) of the Act. The tenant's plea was that the house which has been allotted to one son of the tenant who was a Lecturer in the university, which was not available to all members of the family, at least the allottee's father and sisters, as they were not members of family in view of terms of agreement between the tenant and the university. The learned judge was of the opinion that the same was irrelevant. 4. Section 3(p) defines 'Public Sector Corporation' while Section 3(q) defines 'institutions' which also include any university. The 'Public Sector Corporation' has been defined to mean vide Section 3(p) any corporation owned or controlled by the Government, and includes any company as defined in Section 3 of the Companies Act, 1956, in which not less than fifty percent of the paid up share capital is held by the Government. 5. Undoubtedly the University is not a company. It can also not be a corporation owned or controlled by the Government. The corporation has to be owned and controlled by the Government. The Universities are governed by State Universities Act and they are neither owned nor controlled by the State Government and the State Government can exercise only those powers in the matters of university which have been conferred upon it under the 'Act' itself. The State Government has got no share in the university and merely because the State Government gives grant or financial assistance and exercises some statutory powers, that could not make the University a 'Corporation' muchless a public Sector Corporation as has been held by the learned Judge. A university is an educational institution as defined in Section 2(q) of the Act extracted above. 6. A university is an educational institution as defined in Section 2(q) of the Act extracted above. 6. The reference made by the learned Single Judge has been occasioned by the fact that the allotment of the residential flat was made to the tenant's son B.K. Nigam by Lucknow University on the condition that it will be used his own residence including his wife or husband, children and parents dependent on him. Since the same was not available to the tenant and his family members according to the terms of allotment, the question has arisen whether in such a case the tenant should be debarred under Explanation (i) read with the Note thereto to Section 21(1) of U.P. Act No. XIII of 1972 from raising an objection against the application made under Section 21(1). The Explanation reads 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 or is wholly dependent on him) 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 subsection shall be entertained. Note: For the purposes of this clause a person shall be deemed to have otherwise acquired a building, if he is occupying a public building for residential purposes as a tenant, allottee or licensee. 7. The provisions of Explanation (i) read with the Note thereto will show that the conditions which are necessary to be satisfied for the applicability of the said provisions are (1) that the tenant or any member of his family who has been normally residing with him or who is wholly dependent on him either (a) has built a residential building or, (b) has otherwise acquired a residential building in a vacant state or (c) has otherwise acquired a residential building and has got it vacated after acquisition or (d) is occupying a public building for residential purposes as a tenant, allottee or licensee, and (2) that such residential building or public building is in the same city, municipality, notified area or town area. There is no provision that the public building which is being occupied by the tenant or member of his family should be available for use and occupation by the tenant and all his family members. The language of Explanation (i) and the Note is explicit, clear and unambiguous and it is not warranted by the express language that equitable consideration of the public building being available for use and occupation by the tenant and all his family members under the terms of the allottment, lease or licence should be invoked. As stated earlier, the only requisite condition is that the public building in question is in occupation of the tenant or a member of his family who has been normally residing with him or who is wholly dependent on him. 8. The object of the provisions of subsection (1) is to provide relief to the landlord in case the building is bonafide required by him for the purpose mentioned in Clauses (a) and (b) of that subsection. It is in this connection that the bar contained in Explanation (i) has been created on the right of the tenant to raise any objection against the application made under subsection (1). Since it is a bar on the right of the tenant it is proper that it should be strictly construed, but at the same time it should not be stretched to such an extent that the provision becomes illusory and the landlord is not able to get its benefit even in cases which can be brought within the ambit of the Explanation and the Note. Having regard to the object of the provisions of the enactment there appears to be no justification for introducing the condition for the applicability of provisions of Explanation and the Note that the residential building acquired by tenant or any member of his family is available for all the family members of the tenant including himself. The apprehension voiced before the learned Single Judge cannot be said to be unreasonable that if such a condition is permitted to be introduced it will give a handle to the tenant to evade the terms of the Explanation and the Note by manipulating the terms of the lease, allotment or licence subject to which the residential building is acquired. 9. In Sri Ram Mohan Bajpai v, Vth Addl. 9. In Sri Ram Mohan Bajpai v, Vth Addl. District Judge, Kanpur and others, 1980 Allahabad Rent Cases, 279, it was found that the mother of the tenant had built a house and that she was residing with the tenant. The plea taken by the tenant was that his relations with the mother were not cordial and as he had separated he could not occupy the house built by her. The plea of the tenant was not accepted and it was held that Explanation (i) to Section 21(1) was clearly applicable. 10. In Full Bench case of Smt. Ram Devi Shakhya v. Ist Addl. District Judge, Luckhow, 1981 Allahabad Rent Cases, 305 it was held that Explanation (i) to Section 21(1) will be attracted even if a house has been acquired as a tenant. This view has been reiterated in Smt. Naththi Bai v. District Judge, Kanpur, 1981 Allahabad Rent Cases, 575. 11. In Ahmad Ali v. IV Addl. District Judge, Kanpur, 1985 (2) Allahabad Rent Cases, 250, it was held that since the tenant's son had acquired another accommodation in the same city, the tenant was precluded by the Explanation (i) to Section 21(1) from contesting the application. 12. In Devi Prasad Misra v. II Addl. District Judge, Bareilly and others, 1986(1) Allahabad Rent Cases, 247, it was urged that Explanation (i) to Section 21(1) would not apply to a case where a member of the family of the tenant had taken the property on rent and that it would apply only to a case where the property is purchased or built by such member. This contention was rejected relying upon the decision of Smt. Naththi Bai cited above. 13. The trend of the decided case is also that it is enough for the applicability of the provisions of Explanation (i) of Section 21(1) that the tenant or any member of his family as described therein has acquired a residential building in the same city etc. 13. The trend of the decided case is also that it is enough for the applicability of the provisions of Explanation (i) of Section 21(1) that the tenant or any member of his family as described therein has acquired a residential building in the same city etc. Having regard to the language of the provisions, the object of enactment and the trend of the decided cases, it appears to me that there is no occasion to invoke the equitable doctrine and construe the provisions of Explanation (1) and the Note to Section 21(1) in such a manner that the same would be applicable only to those cases where the residential building acquired by the tenant or any of his family member is also available for occupation of all the family members of the tenant. This will be to introduce a further condition in the statute which is not warranted. For the above reasons the question referred to the Division Bench is answered in negative as under: The Explanation (i) read with the Note thereto, to subsection (1) of Section 21 would be attracted, whether or not the public building occupied by the tenant or any such member of his family, as is referred to in the said Explanation is available for residence by the tenant and other members of the tenant's family by virtue of the terms and conditions of the allotment in respect of such public building. 14. Let the case be sent back to the learned Single Judge for disposal according to law with the above answer to the question referred. Reference answered.