( 1 ) WHETHER an owner and a landlord?who is also one the directors and a share holder in a private company?can get a shop vacated for the need of the company under section 21-1 (a) of the UP Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (the Act)? This is the main point involved in this writ petition. ( 2 ) THE contesting respondent is owner and landlord of the shop in question and the petitioner is the tenant. The contesting respondent filed an application under section 21-1 (a) of the Act for release of the shop on the ground that he along with his brother are the co-sharers in a private limited company by the name of Dalpati Cement Factory Pvt Ltd. (the company) and the shop is required for the sale point of the factory established by the company. This application was contested by the petitioner. The Prescribed Authority by the order dated 28. 5. 1991 allowed the application of the contesting respondent holding that the need of the contesting respondent is bona fide and greater hardship will occasion to him in case his application is rejected. The petitioner filed an appeal which was dismissed on 29. 7. 2000. Hence the present writ petition. ( 3 ) I have heard Sri VM Zadi, counsel for the petitioner and Sri MK Gupta counsel for the contesting respondent. Following points arise for consideration in this case. (i) The petitioner had not raised the plea before the courts below that the application filed by the contesting respondent was not maintainable as the shop was required by the company and not by the contesting respondent. Can he raise this plea for the first time in the writ petition? (ii) In case the petitioner is entitled to raise the aforesaid plea then whether the application filed by the contesting respondent was maintainable or not ? (iii) Whether the finding regarding bona fide need recorded by the court below is illegal as relevant factors are not considered? ( 4 ) IT is correct that the plea?that the application filed by the contesting respondent is not maintainable as the need is of the company and not of the contesting respondent?was not raised by the petitioner before the court below, but facts are admitted. The law in this regard has summed up in Shorter Constitution of India by Dr. ( 4 ) IT is correct that the plea?that the application filed by the contesting respondent is not maintainable as the need is of the company and not of the contesting respondent?was not raised by the petitioner before the court below, but facts are admitted. The law in this regard has summed up in Shorter Constitution of India by Dr. Durga Das Basu 13th edition (page 856) as follows: The High Court would not, generally, entertain a point, which was not taken before the inferior tribunal or court. But if the plea, though not specifically raised before a subordinate tribunal, is raised before the High Court in the writ proceedings for the first time, and it goes to the root of the question and is based on admitted and uncontroverted facts such plea should be allowed to be raised. It is desirable that a litigant is not shut out from raising such plea which goes to the root of the lis involved. ( 5 ) THE case of the contesting respondent himself is that he is owner and landlord of the shop in question. It is further his case that the shop is required for the sale point for the cement factory of the company. The petitioner is raising question regarding maintainability of the application. It is jurisdictional question. Facts are admitted; they are based on the case of the contesting respondent. There is no justification for not permitting the petitioner to raise this plea. ( 6 ) COUNSEL for the contesting respondent submitted that prejudice has been caused to the contesting respondent and as such the petitioner should not be permitted to raise this plea. According to him in case this plea had been raised before the courts below then, the petitioner would have withdrawn his application; transferred the property in favour the company; thereafter would have filed the application on behalf of the Company. ( 7 ) THIS is no prejudice; in case the plea of the petitioner is upheld then the contesting respondent can still do the same. In case it so happens then the courts would be at liberty to consider it in accordance with law considering the need of the company. This point is decided against the contesting respondent and in favour of the petitioner. In case it so happens then the courts would be at liberty to consider it in accordance with law considering the need of the company. This point is decided against the contesting respondent and in favour of the petitioner. ( 8 ) COUNSEL for the contesting respondent submitted that the company is a private company in which there are only two share holders and as the contesting respondent is also one of them, the need of the company is the need of the landlord. ( 9 ) SECTIONS 3 (iii) and 3 (iv) of the Companies Act define private company as well as public company. Section 12 of the Companies Act explains the mode of forming an incorporated company. In a private company right to transfer share is restricted; number of its members are limited; invitation to public to subscribe its shares and deposit from public is prohibited. Public company is a company which is not a private company. Only two persons are required to form a private company whereas at least seven persons are required to form a public company. Shares of the public company are listed and can be purchased by any one. ( 10 ) THE contesting respondent has filed memorandum of articles of Association of the Company. The contesting respondent has 3/7 shares and his brother has 4/7 shares of the company. Clause 3, and 6 to 8 of the Articles Association indicate that the company is a private company. This fact is also not disputed by the petitioner. However, he disputes that need of the company even though a private company is not the need of the contesting respondent. According to the petitioner, the company has separate identity than that of the contesting respondent. ( 11 ) A company is an artificial person. It has separate legal identity than its share holders. More than a century ago, House of the Lords in Salomon Vs. Salomon 1897 AC 22 at page 51 and 53 (the Salomon case) observed that: The company is at law a different person altogether from the subscribers to the memorandum; and, though it may be that after incorporation the business is precisely the same as it was before, and the same persons are managers, and the same hands receive the profits, the company is not in law the agent of the subscribers or trustee for them. Nor are the subscribers as members liable, in any shape or form, except to the extent and in the manner provided by the Act. That is, I think, the declared intention of the enactment. . . . It has become the fashion to call companies of this class "one man companies". That is taking a nickname, but it does not help one much in the way or argument. If it is intended to convey the meaning that a company which is under the absolute control of one person is not a company legally incorporated, although the requirements of the Act of 1862 may have been complied with, it is inaccurate and misleading. ( 12 ) THIS is also the law in our country and the Salomon case still holds the field. The Supreme court in Shubhra Mukharjee Vs. Bharat Cocking Coal Ltd; AIR 2000 SC 1203 = 202 (3) SCC 312 (the Shubhra case) observed as follows: The principle laid down in Salomon case more than a century ago in 1897 by the House of Lords that the company is at law a different person altogether from the subscribers who have limited liability, is the foundation of joint stock company and basic incidence of incorporation both under English law and Indian Law. ( 13 ) IN England there is an Act similar to the Act. It is known as the Landlord and Tenant Act 1954 (the UK Act ). Tenancy of a tenant of a shop was terminated and the tenant applied for grant of new tenancy under the UK Act. This was opposed by the landlady on the ground that the shop was required for carrying on business of a company of which she had complete control. This application of the tenancy was allowed by the country judge. However, appeal against the same was allowed in Tunstall Vs. Steigmann; 1962 (2) All ER 24 = 1962 (2) WLR 1045 (the Tunstall case ). The court held that, the fact that she holds virtually the whole of the shares in the limited company and has complete control of its affairs makes no difference to this proposition. The object of a limited liability company is that the shareholders shall have some protection and some limit to the liability which they may incur in the event of the company being unsuccessful. The object of a limited liability company is that the shareholders shall have some protection and some limit to the liability which they may incur in the event of the company being unsuccessful. It is to be assumed that the landlord in this case assigned her business to the limited company for some good reason which she considered to be of an advantage to her. She can not say that in a case of this kind she is entitled to take the benefit of any advantages that the formation of a company gave to her, without at the same time accepting the liabilities arising therefrom. She cannot say that she is carrying on the business or intends to carry on the business in the sense intended by paragraph (g) of the sub-section and at the same time say that her liability is limited as provided by the Companies Act. ( 14 ) THE case here is similar. The contesting respondent has set up and proved the case that the company intends to carry on business in the shop. He can not say that the need of the company is his personal need. The case reported in Sevenarb Ltd Vs. Busvine 1969 (1) All ER 392 under the UK Act is distinguishable. In this case the court had held that the landlady held the premises in trust for the company. It is in this light that the court held that: A landlady of business premises who holds the premises on trust is entitled to oppose tenants application for a new tenancy if either the landlord himself or his cestui que trust intends to occupy the premises for the purpose of a business to be carried on there either by the landlord or by his cestui que trust. ( 15 ) HERE the Company was incorporated on 8. 11. 1995. The shop in question was let out many years before that by the father of the contesting respondent. It was inherited by the contesting respondent and his brothers on their fathers death. It came to the share of the contesting respondent on partition. He is not holding it in trust for the company. ( 16 ) THE counsel for the contesting respondent submitted that: Principles laid down in the Salomon case are neither absolute nor written on stone. The courts have been lifting corporate veil to see the correct facts. It came to the share of the contesting respondent on partition. He is not holding it in trust for the company. ( 16 ) THE counsel for the contesting respondent submitted that: Principles laid down in the Salomon case are neither absolute nor written on stone. The courts have been lifting corporate veil to see the correct facts. In case corporate veil is lifted then it would be clear that the need of the company is nothing but the need of the contesting respondent and he can not be non-suited on this ground. ( 17 ) IT is correct that the courts have been lifting corporate veil to see the facade behind it. The Supreme Court in the Shubhra case further held that, Lifting the veil of incorporation under statutes and decisions of the courts is an equally settled position of law. This is more readily done under American law, to look at the realities of the situation and to know the real state of affairs behind the facade of the principle of the corporate personality, the courts have pierced the veil of incorporation. ( 18 ) THE court have lifted corporate veil to see if it is used for tax evasions or to circumvent tax obligations. {cit Vs Sri Meenakshi Mills Ltd ( AIR 1967 SC 819 )} or if the purpose is to commit illegality and defraud others {dda VS. Skipper Constructions 1996 (4) SCC 622 } but not in a case of this kind where a company requires a shop for its need. ( 19 ) THE court in the Tunstall case observed: while it may be argued that the courts have departed form a strict observance of the principle laid down in Salmon Vs. Salomon and Co. Ltd. It is true to say that any departure, if indeed any of the instances given can be treated as a departure, has been made to deal with special circumstances when a limited company might well be a facade concealing the real facts. Counsel was unable to point to any special circumstances in this case other than that the landlord has complete control of the company. In my judgment that is not enough. I see no reason to depart from well established principles and I would allow the appeal. ( 20 ) SO is the case here. Counsel was unable to point to any special circumstances in this case other than that the landlord has complete control of the company. In my judgment that is not enough. I see no reason to depart from well established principles and I would allow the appeal. ( 20 ) SO is the case here. There are no special circumstances and the contesting respondent does not even have complete control over the company. The majority shares are held by his brother. The need of the company can not be treated as the need of the contesting respondent and the application is not maintainable. ( 21 ) IN view of the finding recorded on point no. 2, there is no necessity to record any finding on point no. 3. ( 22 ) MY conclusions are as follows: (a) A point of law regarding jurisdiction?that is not taken before the courts below?can be taken for the first time in the writ petition provided it arises on the admitted or facts found by the courts below. (b) The need of a private or public company can not be equated with the personal need of its shareholders. In view of this the writ petition is allowed. The judgments of the courts below dated 29. 72000 and 28. 5. 1999 are quashed and the application of the contesting respondent under section 21 (1) (a) is dismissed. In the circumstances of the case the parties shall bear their cost throughout. . .