Shri Kishan v. District Judge — 1992 DIGILAW 1062 (ALL)

JUDGMENT : S.P. Srivastava, J. This writ petitions arises out of the proceedings initiated by Jagannath Prasad, Respondent no 3 since deceased u/s 21(1)(a) of the Uttar Pradesh Urban Buildings (Regulations of Letting Rent and Eviction), Act, 1972 (U.P. Act no XIII of 1972) seeking release of an accommodation which constituted a part of a three storeyed building and had been let out to the Petitioner. The prescribed Authority vide its judgment and order dated 15-2-84 had allowed the aforesaid release application in part leaving a room situated in the ground floor of the building in possession of the Petitioner which room was being utilised by him for business purposes. The prescribed Authority had recorded a finding after appraisal of evidence on record that the need set up by the landlord could be satisfied by releasing the portion except the ground floor portion which was in the occupation of the Petitioner tenant and that the landlord had successfully established his bonafide need in respect of the same on the question of relative hardships, the finding recorded by the Prescribed Authority was in favour of the landlord, 2. Feeling aggrieved by the order granting release the Petitioner-tenant preferred an appeal before the Respondent No. 1. The landlord also felt aggrieved by that portion of the order of the prescribed Authority where under the application for the release had been rejected to far as the ground floor portion in the occupation of the Petitioner-tenant was concerned and challenged the same by a separate appeal. Both these appeals were heard and disposed off by the Respondent No. 1 by the common judgment dated 8-10-86 where under while dismissing the appeal of the tenant, the appeal of the landlord was allowed with the result that the application for release stood granted in its entirety and the ground floor portion in dispute was also released. 3. Feeling aggrieved the tenant-Petitioner has approached this Court and has sought for the quashing of the order passed by the prescribed Authority as well as the appellate authority, Respondent no 1. 4. I have heard Sri B.N. Misra. learned Counsel for the Petitioner and Sri B.D. Mandhyan, learned Counsel who has appeared for the heirs and legal representatives of the deceased Respondent No. 3 who have been brought on record in his place. 5. 4. I have heard Sri B.N. Misra. learned Counsel for the Petitioner and Sri B.D. Mandhyan, learned Counsel who has appeared for the heirs and legal representatives of the deceased Respondent No. 3 who have been brought on record in his place. 5. Learned Counsel for the Petitioner has tried to assail the findings recorded by the Prescribed Authority and affirmed by the Respondent No. 1 in appeal so far as they relate to the Questions regarding bonafide need and relative hardships. The concurrent findings recorded by the prescribed Authority and the Respondent No. 1 upholding the claim of the landlord for the release for the portion of the accommodation in dispute excepting the ground floor portion are based on appraisal of evidence and the materials on the record, 6. Learned Counsel for the Petitioner has asserted that the findings recorded by the authorities below stand vitiated on account of omission to get the premises in dispute inspected in order to ascertain the total extent of the accommodation available to the landlord and the tenant it has been urged that the reports submitted by the Commissioner were contradictory and in this view of the matter it was incumbent on the prescribed Authority as well as the Appellate Authority to inspect the budding in question which they had failed to do. 7. It appears that in view of the inconsistency in the reports submitted by the Commissioner appointed by the prescribed Authority the course adopted by the prescribed Authority was that it discarded both the reports and having come to the conclusion that parties had led sufficient evidence on the question relating to the extent of the accommodation there was no necessity to either issue a fresh commission or to have a local inspection, it considered the various affidavits filed by the parties and determined the question relating to the bonafide requirement set up by the landlord and the relative hardship on the appraisal of the evidence led by the parties which had been brought on the record. 8. No such error much less manifest error of law has been pointed out which could justify any interference in the concurrent findings recorded by the prescribed Authority as well as the Respondent No. 1 so far as they relate to the release of the accommodation in dispute except the ground floor portion is concerned. 8. No such error much less manifest error of law has been pointed out which could justify any interference in the concurrent findings recorded by the prescribed Authority as well as the Respondent No. 1 so far as they relate to the release of the accommodation in dispute except the ground floor portion is concerned. However, so far as the release of the ground floor portion of the accommodation in dispute which is admittedly being utilised by the tenant for business purpose is concerned, the learned Counsel for the Petitioner has pointed out that the findings recorded by the Respondent No. 1 while reversing the judgment and order passed by the prescribed Authority in that regard are manifestly erroneous and proceed on a misconception of law. The only ground for granting the release of the premises in dispute situate on the ground floor as indicated in the impugned order is that the partial grant of the release will result in the splitting up of the tenancy and there will be difficulty in the payment of the rent of the portion of the ground floor. The Respondent No. 1 further appears to have been swayed away by the fact that the parties had not pleaded about the splitting up of the tenancy of any portion of the disputed house and as observed by the Respondent No. 1 it was due to this legal position that the order passed by the prescribed Authority required modification. 9. Learned Counsel for the Petitioner has urged that, taking into consideration the specific provisions contained in Section 21 of the Uttar Pradesh Act No. XIII of 1972 as well as the provisions contained in Rule 16(1)(d) of the rules framed there under there could be no impediment in granting the release of a part of the tenanted accommodation and such grant could not be deemed to result in the splitting up of the tenancy. It has further been asserted that even if there was no pleading, it was incumbent upon the authorities below to consider as to whether release of the part of accommodation only could satisfy the alleged need of the landlord and no pleading is this connection was required it has further asserted that the consideration of difficulty about the payment of rent could not be a valid consideration for reversing the order passed by the trial court. 10. 10. A perusal of the judgment passed by the Respondent No. 1 shows that a clear cut finding has been recorded therein holding that the need set up by the landlord would be met by releasing the accommodation situate in the second and third storey of the building in question which was in the occupation of the Petitioner tenant in face of this finding there could be absolutely no justification for granting release of the ground floor portion of the accommodation in dispute which was being utilised by the tenant for business purpose for a long period. 11. In its decision in the case of Smt. Raj Rani Mehrotra v. II Additional District Judge 1980 ARC 311, the Apex court while considering the implications arising under Rule 16(1)(d) of the Rules framed under Uttar Pradesh Act no XIII of 1972 has observed that even if no plea regarding partial release is raised by the tenant, it is a duty of the court to take into account that aspect while considering the requirements of personal occupation of the landlord. The Hon'ble Supreme Court has clearly observed that the aforesaid rule had the effect of casting such duty on the rent control authorities and non-raising of the plea had no effect. 12. So far as the question of splitting up of the tenancy is concerned it may be noticed that Section 108(c) of the Transfer of Property Act embodies the principle of quiet enjoyment of the leased premises and ensures that there must not be on the part of the landlord any act of interruption and the lessor has to secure the lessee possession of the demised property with reference to its intended user. It contemplates that the lessee shall not be unlawfully evicted from the property leased and that his possession of the property shall not be otherwise disturbed. It contemplates that the lessee shall not be unlawfully evicted from the property leased and that his possession of the property shall not be otherwise disturbed. Normally the contract of tenancy is a single and indivisible contract and the unity of such contract cannot be broken or in other words splitting up of the tenancy is not permissible except under the conditions contemplated either u/s 108, Transfer of Property Act or where the lessor and the lessee agree to it as observed by the Division Bench of this Court in the case of Suresh Kumar Saxena v. Rajendra Agarwal 1975 ALJ 153, or there is any specific provision incorporated in the statute empowering the court to do so as indicated by the Hon'ble Supreme Court in the decision in the case of Miss S. Sanyal v. Gian Chand where it was observed that in the absence of a specific provision incorporated in the Statute the Court has no power to break up the unity of the contract of letting. 13. Under the scheme of the Uttar Pradesh Act No. 13 of 1972 there has been a noticeable departure from the scheme of the old Act (U.P. Act, No. 3 of 1947). Now the present Act specifically provides that the Prescribed Authority may evict the tenant either from the entire building under tenancy or from a part thereof depending upon the need of the landlord. The old Act did not provide for the splitting up of the tenancy which is made permissible under the new Act (U.P. Act No. 13 of 1972). It may further be noticed that Section 38 of the Uttar Pradesh Act No. 13 of 1972 provides that the provisions of the said Act shall effect notwithstanding anything inconsistent therewith contained in the Transfer of Property Act, 1882. The object of this section is to ensure that the provisions in the Act will prevail and will override any provision in the Transfer of Property Act to the extent of inconsistency. Sections 21(1), 21(2), 21(5) of the Uttar Pradesh Act No. 13 of 1972 clearly contemplate splitting of tenancy and the statute specifically empowers the Prescribed Authority or the Appellate Authority to break up or split up the tenancy if the pre-requisite conditions as contemplated under the Act are satisfied. The view to the contrary taken by the Respondent no 1 is manifestly erroneous and, therefore, cannot be upheld. The view to the contrary taken by the Respondent no 1 is manifestly erroneous and, therefore, cannot be upheld. 14. The order granting release in respect of a part of the accommodation only will, however, result in the eviction of the lessee by the lessor from a portion of the premises let out and if a lessee is evicted from a portion of demised premises inspite of the rent being a lump-sum rent, the lessee should not be held liable to pay the entire rent and will be entitled to an apportionment which can be done in accordance with law and the proper rent for the particular portion which he is allowed to retain can be determined 15. In the circumstances of the case, therefore, sufficient ground has been made out for interference by this Court so far as the release of the ground floor portion in dispute granted under the impugned order is concerned. 16. In the result, the writ petition succeeds in part. The judgment and order passed by the Respondent No. 1 in P.A. No. 40/84 preferred by landlord Jagannath Prasad against the tenant Sri Krishna is quashed. 17. There shall be no order as to costs.