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2008 DIGILAW 1684 (ALL)

SUNITA RANI v. Vth ADDITIONAL DISTRICT JUDGE, SAHARANPUR

2008-08-19

S.U.KHAN

body2008
JUDGMENT S.U. KHAN, J. First writ petition has been filed by the tenants and other two writ petitions have been filed by landlord. Property in dispute consists of a go down a shop and a kothari (room). Landlord is same and tenants are also same. It appears that three portions were let out at different times hence landlord initiated three eviction/release proceedings against the tenants on the ground of bona fide need under section 21 of U.P. Urban Buildings (Letting, Rent and Eviction) Act, 1972. Total rent is Rs. 100/- per month, Rs. 50/- per month for go down, Rs. 35/- per month for the shop and Rs. 15/- per month for the kothari. The first release application was registered as P.A. Case No. 10 of 1981 and related to the go down. Second release application was registered as P.A. Case No. 11 of 2008 and related to the shop. While the third release application was registered as P.A. Case No. 12 of 1981 unrelated to the kothari. The tenanted portions and the adjoining portions in occupation of the, landlord were shown in the map annexed along with release application, copy of which is Annexure-l to each writ petition. Adjacent to the tenanted go down, there is another go down belonging to and in possession of the landlord. All the three tenanted accommodations are almost adjacent except that in between go down on the one hand and tenanted shop on the other hand, there is a kothari in possession of the landlord. All the three release applications were consolidated and jointly decided by prescribed authority/Munsif, Devband, Saharanpur. All the release applications were dismissed through judgment and order dated 8.11.1983. Against the said judgments and orders, appeals were filed being R.C. Appeals No. 444, 445 and 446, all of 1983, by the landlord. Vth A.D.J., Saharanpur allowed R.C. Appeal No. 444 of 1983, which related to the go down and dismissed the other two appeals through judgment and order dated 30.5.1989 hence these writ petitions by both the parties. 2. Need set up in the release applications were for expanding business of manufacturing copies etc. Landlord was doing business under the name and style of Ma Lakshmi Traders and Book Seller". He also had an agency of paper etc. Landlord was doing business of manufacturing the copies in a shop in the main bazar. 2. Need set up in the release applications were for expanding business of manufacturing copies etc. Landlord was doing business under the name and style of Ma Lakshmi Traders and Book Seller". He also had an agency of paper etc. Landlord was doing business of manufacturing the copies in a shop in the main bazar. Landlord stated that he required the accommodation in dispute for expanding his business and installing a machine for manufacturing copies rolling machine and cutting machine. Landlord stated that he was doing business along with his two sons. Landlord stated that one of his sons had obtained agency of paper and had started working of manufacturing copies. Lower Appellate Court found that it could not be denied that for expansion of the business of the landlord and his son, installation of cutting machine, rolling machine and stitching machine was essential. Appellate Court also found that if these machines were installed and started functioning, one go down will be required for keeping the finished goods and one room for raw materials. A small shop was also available to the landlord in between the accommodations in dispute, which was being used as garage for car. Lower Appellate Court found that one go down was already in possession of the landlord and if tenanted go down was released, his need, which was quite bona fide, would be fulfilled. Lower Appellate Court also found that landlord and his sons had got their industry registered as small' scale industry for the purpose of allotment of quota of paper. 3. It was contended by the tenant that on the first floor of above accommodation in dispute, some accommodation was let out to an advocate by the landlord. The said accommodation was residential and normally heavy machines are not installed on the first floor. 4. In my opinion judgment and order passed by the Lower Appellate Court is eminently just and in accordance with law. Need for commercial accommodation was fully proved by the landlord. Equity has been adjust by leaving kothari and shop in possession of the tenant and releasing the go down in favour of the landlord. Accordingly I do not find least error in the impugned judgment passed by the Lower Appellate Court. All the three writ petitions are therefore dismissed. 5. Need for commercial accommodation was fully proved by the landlord. Equity has been adjust by leaving kothari and shop in possession of the tenant and releasing the go down in favour of the landlord. Accordingly I do not find least error in the impugned judgment passed by the Lower Appellate Court. All the three writ petitions are therefore dismissed. 5. I have held in Khursheeda v. A.D.J.,1 and H.M. Kichlu v. A.D.J.,2 that while granting relief against eviction to the tenant in respect of building covered by Rent Control Act or while maintaining the said relief already granted by the Courts below. Writ Court is empowered to enhance the rent to reasonable extent. 6. In the aforesaid authority of Khursheeda (supra), I placed reliance upon the Supreme Court authority of M.V. Acharya v. State of Maharashtra,,3 where it was held that it was essential to provide for periodical enhancement of rent under the Rent Control Act. The Supreme Court has further held that frozen rents are giving rise to lawlessness and landlords out of frustration are approaching muscle man to get the premises vacated and Courts of law are becoming redundant in this sphere. This authority has recently been followed by the Supreme Court in Satyawati Sharma (dead) by LRs. v. Union of India and another,1 part of Para-29 and Para-34 of which are quoted below: "29. It is trite to say that legislation which may be quite reasonable and rationale at the time of its enactment may with the lapse of time and/or due to change of circumstances become arbitrary, unreasonable and volatile of the doctrine of equity and even if the validity of such legislation may have been upheld at a given point of time, the Court may, in subsequent litigation, strike down the same if it is found that the rationale of classification has become non-existent. 34. In Malpe Vishwanath Acharya and others v. State of Mharashtra and another (supra) the Court found that the criteria for determination and fixation of rent by freezing or by pegging down of rent as on 1.9.1940 or as on first date of letting, had, with the passage of time become irrational and arbitrary but did not strike down the same on the ground that extended period of Bombay Rent Act was coming to an end on 31.3.1998." 7. Under U.P. Rent Control Act, there is no provision of enhancement of rent after October, 1972 [Except where landlord is public charitable or public religious institution (section 9-A) or Government is tenant (section 21 (8)]. In the aforesaid authority of Khursheeda, I have also placed reliance upon the authority of Supreme Court in Shangrila Food Products Ltd. v. Life Insurance Corporation of India,,2 paragraph-11 of which is quoted below: "It is well-settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court, being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priory before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief." 8. Thereafter in Para-8 of the aforesaid authority of Khursheeda, I held as under: "Rent Control Act confers a reasonable advantage upon the tenant of protection against arbitrary eviction. Tenant under the Rent Control Act cannot be evicted except on specific grounds like bona fide need of the landlord, arrears of rent, sub-letting and material alteration etc. This advantage is also coupled with the advantage of immunity from enhancement of rent. The latter advantage cannot be said to be either reasonable or equitable the Supreme Court in the aforesaid authority of S.F.P. v. L.I.C.,3 has laid down that while granting relief to a party the Writ Court can very well ask the said party to shed the unfair advantage which it gained under the impugned order. By slightly extending the said doctrine it may safely be held that while granting the reasonable advantage to the tenant conferred upon him by the Rent Control Act the tenant may be asked to shed the un-reasonable arbitrary advantage conferred upon him by the said Rent Control Act. By slightly extending the said doctrine it may safely be held that while granting the reasonable advantage to the tenant conferred upon him by the Rent Control Act the tenant may be asked to shed the un-reasonable arbitrary advantage conferred upon him by the said Rent Control Act. The Writ Court therefore while granting or maintaining the relief against arbitrary ejectment to the tenant can very well ask the tenant to shed the un-reasonable benefit of the Rent Control Act granted to him in the form of immunity against enhancement of rent however inadequate the rent might be. Tenant will have to shed the undue advantage of immunity from enhancement of rent under the Rent Control Act to barter his protection from arbitrary eviction provided for by the said Act." 9. Thereafter in H.M. Kitchlu v. A.D.J.,1 I have held that the same principle of enhancement of rent to a reasonable extent may be made applicable while dismissing the writ petition of the landlord for the reason that by doing so Writ Court approves the protection of Rent Control Act granted to the tenant by the Courts below. 10. The existing rent of Rs. 50/- per month for two accommodations, kothari and shop left in the occupation of the tenant is extremely inadequate. Accordingly, it is directed that w.e.f. August. 2008 onwards tenants shall pay rent for the portion left in their occupation i.e. kothari and shop at the total rate of Rs. 500/- per month. 11. Tenants are granted six months time to vacate provided that: 1. Within one month from today tenants file an undertaking before the prescribed authority to the effect that on or before the expiry of aforesaid period of six months they will willingly vacate and handover possession of the property in dispute to the landlord-petitioner. 2. For this period of six months, which has been granted to the tenants to vacate, they are required to pay Rs. 2,400/- (at the rate of Rs. 400/- per month) as rent/damages for use and occupation of the godwon. This amount shall also be deposited within one month before the prescribed authority and shall immediately be paid to the landlord-petitioner. 12. In case of default of compliance of any of these conditions tenants shall be evicted through process of Court after one month. It is further directed that in case undertaking is not filed or Rs. This amount shall also be deposited within one month before the prescribed authority and shall immediately be paid to the landlord-petitioner. 12. In case of default of compliance of any of these conditions tenants shall be evicted through process of Court after one month. It is further directed that in case undertaking is not filed or Rs. 2,400/- are not deposited within six weeks then tenants shall be liable to pay damages at the rate of Rs. 600/- per month since after one month till the date of actual vacation. 13. Similarly, if after filing the aforesaid undertaking and depositing Rs.2,400/ - the accommodation in dispute is not vacated on the expiry of six months then damages for use and occupation shall be payable at the rate of Rs. 600/per month since after six months till actual vacation. It is needless to add that this direction is in addition to the right of the landlord to file contempt petition for violation of undertaking and execution application under section 23 of the Act. Writ Petitions Dismissed.