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2009 DIGILAW 1874 (ALL)

SHANTI DEVI v. ARUN KUMAR GUPTA

2009-04-30

PRAKASH KRISHNA

body2009
JUDGMENT Hon’ble Prakash Krishna, J.—Premises No. 113/119, Swaroop Nagar, Kanpur Nagar is the subject matter of dispute which is presently in occupation of the petitioner being the tenant. The contesting respondent No. 1 is its landlord. He was serving in the Steel Plant at Durgapur (State of West Bengal) on the post of senior manager and was provided with Category-VI Type House No. 1/10, Vivekanand Road, Durgapur. He was due to retire on 31st of May, 2000 on attaining the age of superannuation. Sensing his retirement, he filed an application under Sections 21(1)(a) and 21(1-A) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act No. 13 of 1972 against the petitioner for release of the accommodation in question on the pleas inter alia that he requires the said accommodation for use of his family on the ground that he is to retire in near future and will settle at Kanpur in his own house and that presently he is in occupation of a public building in connection with his employment in Durgapur Steel Plant. Notice of the application was issued to the petitioner by the Prescribed Authority but no objection or written statement was filed and the matter proceeded ex parte. The Prescribed Authority by the order dated 3.7.1998 dismissed the said release application on the ground that presently the landlord and his family are not residing at Kanpur and as such, there is no immediate need for getting the tenanted accommodation released. The release application, according to the prescribed authority, was filed on the ground of expected need, there being not immediate need. 2. The above order was challenged by way of appeal which was marked as rent appeal No. 124 of 1998. The Court below by the impugned order dated 18th of April, 2003 has allowed the appeal and set aside the order passed by the Prescribed Authority and released the disputed accommodation in favour of the contesting respondent No. 2. 3. During the pendency of the appeal, the respondent landlord moved an application for amendment and brought on record that he has taken voluntary retirement and he has retired w.e.f. 31st August, 1998. The said amendment application was allowed by the order dated 12th of October, 1998 and the notices in the appeal were issued by the appellate Court to the petitioner thereafter. The said amendment application was allowed by the order dated 12th of October, 1998 and the notices in the appeal were issued by the appellate Court to the petitioner thereafter. In response to the notice, the petitioner filed objection as well as the application for recall of the order dated 12th December, 1998 whereby the amendment application was allowed ex parte. The appellate Court vide its order dated 17th of September, 2002 heard the counsel for the parties and allowed the amendment application again. The landlord also filed documents supporting the plea of voluntary retirement, to which time was granted to the petitioner tenant to file evidence in rebuttal vide order dated 31st of January, 2003. 4. During the pendency of the appeal, the petitioner also prayed that the matter be restored back to the Prescribed Authority after allowing the appeal. The said application was rejected by the Court below on the finding that it is not required to remand the case to Prescribed Authority for recording fresh finding. The appellate Court has jurisdiction to record a fresh finding itself if so required in view of the law laid down by this Court in Durga Prasad Jain and another v. XIIIth Addl. District and Sessions Judge, Agra, 1996 (2) ARC 592 as also in Sukh Lal v. IXth Addl. District Judge, Kanpur and others, 1983 ARC 198. Thereafter, the appeal was heard. The petitioner filed written arguments and the impugned order allowing the appeal was passed. 5. Shri M.B. Saxena, learned counsel appearing on behalf of the petitioner, submits that no notice was served on the petitioner by the Prescribed Authority and the release application was decided ex parte though in his favour. He further submits that during the pendency of the appeal itself, the landlord himself filed an application that the matter be remanded back to the Prescribed Authority for fresh consideration after giving an opportunity to the parties to lead evidence in support of their respective cases and the said application remained pending. In any case, no opportunity for hearing was afforded to the petitioner by the trial Court and as such the impugned order is liable to be quashed. In any case, no opportunity for hearing was afforded to the petitioner by the trial Court and as such the impugned order is liable to be quashed. Shri Ravi Kant, the learned senior counsel for the contesting respondent, on the other hand, submits that the release application was filed under Section 21(1-A) of the Act wherein only two requirements are to be established for getting the tenanted accommodation released. Firstly, that the landlord of the building was in occupation of public building for residential purposes. Secondly, that he had to vacate on account of cessation of his employment. There being no dispute that the landlord was in occupation of public buildings for residential purposes and that he has vacated it due to his retirement, no interference in the present writ petition is called for. 6. The first and foremost point urged by the learned counsel for the petitioner is that the matter should be remanded to the Prescribed Authority with the direction to decide the case afresh after giving an opportunity to the parties to lead evidence on merit. It was urged that, admittedly, the petitioner tenant was not served personally. The release application was decided ex parte. The petitioner tenant came to know about the proceedings when she was served with notice by the appellate Court. Although a written statement was filed before the appellate Court but no proper opportunity to lead the evidence was granted, therefore, this Court should restore back the matter to the Prescribed Authority. It was also argued that during the pendency of the appeal, before issuing any notice on the appeal, the release application was got amended by the respondent landlord on the plea that he has now retired as has obtained voluntary retirement. 7. I have given careful consideration to the aforesaid submissions of the learned counsel for the petitioner. No doubt, the proceedings were conducted ex parte by the Prescribed Authority. But at the same time, it is also true the notices were issued through the process server by the Prescribed Authority which was returned with an endorsement of ‘not met’. The report dated 21.1.1998 of the process server filed as Annexure-2 to the writ petition clearly shows that the house was found locked. But at the same time, it is also true the notices were issued through the process server by the Prescribed Authority which was returned with an endorsement of ‘not met’. The report dated 21.1.1998 of the process server filed as Annexure-2 to the writ petition clearly shows that the house was found locked. Thereafter, notices were issued by the registered post with A.D. The postman tried to contact the addressee on various dates such as 13th January, 1998, 14th January, 1998, 19th January, 1998, 20th January, 1998 and 21st January, 1998, but failed. The registered notice was returned with endorsement of ‘not met’. The Prescribed Authority by the order dated 7th of February, 1998 held that the petitioner tenant is sufficiently served. The release application was ultimately rejected on 3rd of July, 1998. Thus, the effort to serve the petitioner tenant was made by the Prescribed Authority by all possible means. When the matter reached before the appellate Court, admittedly, the petitioner was served and she filed her written statement. A copy of the said written statement has been filed as Annexure-10 to the writ petition. 8. In the written statement, it has been denied that the petitioner has started living with her son at NOIDA or she has sublet the disputed accommodation to her married daughter and son in law. The said written statement is a long document and contains about 37 paragraphs. Interestingly, it may be noted that it is not disputed therein that the respondent landlord was not residing at Durgapur or was not employed in Durgapur Steel Plant as stated by him. In para 18 of the written statement it is stated that “It is strange and very funny that the petitioner (landlord) has manoeuvred evidence for premature retirement in order to seek release of the accommodation in occupation of the answering opposite party and actually he did not retire on 31st of August, 1998. It shows that he has got no bonafide and genuine need for accommodation in question. It is stated in the written statement that no prudent man will take voluntary retirement in order to seek eviction of his tenant. Release cannot be allowed on such flimsy grounds. Further, it has been stated that Dr. It shows that he has got no bonafide and genuine need for accommodation in question. It is stated in the written statement that no prudent man will take voluntary retirement in order to seek eviction of his tenant. Release cannot be allowed on such flimsy grounds. Further, it has been stated that Dr. T.C. Gupta has in order to seek eviction of the answering respondent and other tenants invented a novel device of fake and malafide partition of the house against himself, his wife and three sons. In the written statement, it has been accepted that the petitioner tenant started paying rent in the name of the respondent tenant after she was told about the partition by the father of the respondent landlord. In para 26 of the written statement it has been accepted that the landlord was due to retire on 31st of May, 2000 but the present petition was filed on 23rd of September, 1997. 9. A bare perusal of the written statement would show that there is no denial from the side of the petitioner tenant that the landlord was not in occupation of a public building for residential purposes. The case of the respondent landlord is that at the time when he sought the release of the disputed accommodation he was serving as Senior Manager posted in Production, Planning and Control Department of the Durgapur Steel Plant and was provided category VI type residential accommodation at 1/10 Vivekanand Road, Durgapur. In absence of any denial by the petitioner in the written statement, the said fact stands proved. 10. When the above writ petition came up for hearing before me and an argument that no opportunity of hearing was afforded to the petitioner by the Court below was reiterated, the matter was adjourned by the order dated 8.4.2009 to enable the learned counsel for the petitioner to find out as to whether there is any such plea in the written statement that the landlord has got any other house except the disputed one. In pursuance of the aforesaid order, a supplementary affidavit dated 15.4.2009 of the petitioner has been filed wherein it has been stated that four big rooms are in possession of the respondent and his parents are of old age heavily dependent on the respondent landlord. In support of the said plea some photographs have been annexed. In pursuance of the aforesaid order, a supplementary affidavit dated 15.4.2009 of the petitioner has been filed wherein it has been stated that four big rooms are in possession of the respondent and his parents are of old age heavily dependent on the respondent landlord. In support of the said plea some photographs have been annexed. In reply, the respondent landlord has stated that the premises No. 113/119 was a big accommodation. On partition it was divided into four independent flats. The premises No. 113/119 fell into the lot of respondent whose name is Arun Kumar Gupta. He is three brothers and initials of all the three brothers is A.K. Gupta. Names are as follows : (1) Arun Kumar Gupta (respondent) (2) Anil Kumar Gupta (3) Ashok Kumar Gupta. 11. The flat No. 113/119-A came into the share of father and mother of the respondent, flat No. 113/119-B was allotted to Shri Anil Kumar Gupta and flat No. 113/119-C was allotted to Shri Ashok Kumar Gupta. The aforesaid partition has been duly acted upon and implemented and are in the respective possessions of the father and brothers of the landlord. Copy of the order of assessment dated 8.4.1993 of the Nagar Mahapalika, Kanpur accepting the partition has been filed as Annexure-SCA 1. The said partition is of the year 1993. The release application giving rise to the present writ petition was filed much thereafter in the year 1997. It is also the case of the petitioner that she started paying rent to the respondent landlord after partition. There is no denial of relationship of landlord and tenant between the parties. Thus, the partition in the family of the respondent landlord is fully proved and has been acted upon. The petitioner tenant has attorned the respondent as landlord and consequently, after the partition, by tendering the rent to him as a result of partition has become the exclusive owner and landlord of the disputed accommodation. Similarly, the other brothers and father of the petitioner are exclusive owners of the respective accommodation allotted in their share to the exclusion of others. 12. Photographs etc. filed along with the supplementary affidavit show only this much that there is a signboard of Shri A.K. Gupta put on the gate which does not necessarily refers to the respondent. The said board refers to the respondent’s brother. 12. Photographs etc. filed along with the supplementary affidavit show only this much that there is a signboard of Shri A.K. Gupta put on the gate which does not necessarily refers to the respondent. The said board refers to the respondent’s brother. A deliberate attempt was made in supplementary affidavit to mislead the Court. 13. Apart from the above, there is no whisper from the side of petitioner either in the pleadings or in the supplementary affidavit that the respondent landlord has got any accommodation either in district Kanpur or anywhere else in the country. The partition among the family members of the landlord having been proved and acted upon, the accommodation possessed by the parents of the respondent cannot be said as that of the respondent. 14. The above fact is further fortified from the fact that the respondent landlord himself is residing in a tenanted accommodation at Q-217, Sector 21, Noida in the house of Shri T. Sri Nagesh on a monthly rent of Rs. 9,500/-. Lease agreement with the lessor (T. Shri Nagesh), copy of the rent receipt dated 4th of March, 2008, dated 18th of March, 2009, electricity bills, domestic gas connection etc., telephone bills etc. have been filed to show that the respondent is presently residing in the aforestated tenanted accommodation. It boils down to this that the presently landlord respondent is himself a tenant in another accommodation at Noida and no other accommodation, except the disputed one owned by him, is available to him. 15. In the above background, the question of remand of the case to the Prescribed Authority for fresh consideration, argued vehemently by the learned counsel for the petitioner needs examination. On the facts of the present case, it cannot be said that the petitioner was deprived of opportunity of hearing. Every effort was made by the Prescribed Authority and the appellate Court as well, to hear the petitioner on merits of the case but she insisted that the matter be restored back to the trial stage to give a new lease of life to the litigation. It has been demonstrated that the respondent landlord who by now is retired has got no accommodation except the disputed one and is residing in a tenanted accommodation at NOIDA. It has been demonstrated that the respondent landlord who by now is retired has got no accommodation except the disputed one and is residing in a tenanted accommodation at NOIDA. To provide immediate relief to such a landlord, an exception has been carved out even by the legislature by enacting under Section 21 (1-A) of the Act. In addition to the above, this Court while hearing the writ petition again afforded opportunity to the petitioner to point out any accommodation which may be available to the respondent landlord but she failed. Assuming for the sake of argument that there is some infraction of the principles of natural justice, there can be certain situations in which an order passed in violation of the principles of natural justice need not be set aside under Article 226 of the Constitution of India as held by the Apex Court in M.C. Mehta v. Union of India, AIR 1999 SC 2583 . One of the exceptions is where no prejudice is caused to the person concerned. In such cases, it has been laid down that interference under Article 226 of the Constitution of India is not necessary. Similarly, if quashing of the order which is breach of natural justice is likely to result in revival of another order which is in itself legal as held in Gaddi Venkateshwar Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 . It is not necessary to quash the order merely because of violation of Principles of Natural Justice. In Aligarh Muslim University v. Mansoor Ali Khan, AIR 2000 SC 2783 , the Apex Court has examined such matters in great depth and laid down the theory of “useless formality”. If upon admitted or indisputable facts, only one conclusion is possible, then, in such a case, the principle with breach of natural justice was in itself breach, would not apply. If no useful purpose is going to be served by restoring the matter back or giving an opportunity of hearing to the party concerned, in the present case the petitioner, the impugned order should not interfered with. Applying the above principle of law on the facts of the present case, it would not be in the interest of justice to set aside the impugned orders as it is not going to serve any useful purpose and it would be “useless formalities”. 16. Applying the above principle of law on the facts of the present case, it would not be in the interest of justice to set aside the impugned orders as it is not going to serve any useful purpose and it would be “useless formalities”. 16. It was also argued that during the pendency of the appeal before the notices could be served on the petitioner, the amendment application filed by the respondent that he has sought voluntary retirement and has been retired prematurely, was allowed without hearing the petitioner tenant. It appears that during the pendency of the appeal, an application No. 9 Kha was filed for amendment in the release application to add paragraphs 18 and 19 therein to the effect that the respondent landlord who was appellant in the appeal has to retire on 31st of May, 2000 and he has to vacate and surrender actual physical possession of the accommodation in his possession of premises bearing No. 1/10, Vivekanand Road, Durgapur on or before two months from the date of retirement. The said amendment application was allowed by the order dated 17th of September, 2002 again, after hearing the petitioner as well. By the order dated 31st of January, 2003 the Court below admitted the additional evidence supporting the plea of voluntary retirement raised by the landlord and it by the said order granted 10 days time to the present petitioner to file evidence in rebuttal. She did not file any evidence in rebuttal. The order dated 17th of September, 2002 was passed after hearing the counsel for the present petitioner also. The said fact finds mention in the order dated 17th of September, 2002 itself. In this view of the matter, the amendment of the release application was allowed after giving an opportunity of hearing to the petitioner. It may be noted that in the present petition, quashing of the order dated 17th of September, 2002 allowing the amendment application has not been sought for. Nor it was argued that no such amendment could have been allowed by the appellate Court. It has also not been pleaded in the writ petition nor argued that no opportunity was given to the petitioner to file the evidence in rebuttal of the amended pleas. 17. The argument that the petitioner was not heard on application is, therefore, baseless and it is rejected accordingly. 18. It has also not been pleaded in the writ petition nor argued that no opportunity was given to the petitioner to file the evidence in rebuttal of the amended pleas. 17. The argument that the petitioner was not heard on application is, therefore, baseless and it is rejected accordingly. 18. Then, it was urged that the petitioner was not heard by the Court below in appeal before passing of the impugned order. The said allegation has been refuted by the learned senior counsel for the respondent landlord. The impugned order shows that the petitioner preferred not to advance the oral argument which was concluded on 10th of April, 2003 and preferred to file the written argument on 16th of April, 2003 and the judgment was delivered thereafter. If the petitioner has chosen not to advance the oral arguments on merits, she should thank herself. The complaint that proper opportunity of hearing was not given has got no merit. The fact that the written arguments were filed, is not disputed by the petitioner. 19. In view of the above discussion, the argument of the learned counsel for the petitioner that proper opportunity of hearing was not afforded is without any substance and is therefore, rejected. Successive opportunities at every stage of litigation were afforded to the petitioner. She could not show prejudice, if any, caused to her. The fault, if any, lies with her. The landlord was in occupation of public building and has now retired and is presently living in a tenanted accommodation and does not possess any other property, is not disputed. The applicability of Section 21(1)(a) of the Act cannot be disputed. 20. Then, it was submitted that it was the respondent himself who at one stage filed the application before the appellate Court that the matter be restored back to the Prescribed Authority by allowing the appeal. The said application remained undisposed off. A copy of the said application dated 30th of October, 2000 has been filed as Annexure-11 to the writ petition. To the same effect an application was also filed by the petitioner herein, subsequently. The said application was dismissed by the order dated 22nd of March, 2003 (Annexure-20 to the writ petition) with the observation that it would be proper for the appellate Court to decide the controversy by itself and fixed 31st of March, 2003 for arguments. To the same effect an application was also filed by the petitioner herein, subsequently. The said application was dismissed by the order dated 22nd of March, 2003 (Annexure-20 to the writ petition) with the observation that it would be proper for the appellate Court to decide the controversy by itself and fixed 31st of March, 2003 for arguments. In this view of the matter, the application for the same prayer which was filed way back in the year 2000 by the respondent also stands disposed off accordingly. Even if, the said application is treated to have been left undecided, the grievance in this regard could be raised by the respondent landlord and not by the petitioner. 21. There is another reason not to interfere in the present writ petition yet. The order of the Prescribed Authority dismissing the release application shows that it was passed in a very arbitrary manner. The Prescribed Authority rejected the release application simply on the ground that the landlord is not presently residing at Kanpur and has not yet retired. The release application has been filed simply on the ground that he is going to retire shortly. He has no need to occupy the disputed accommodation and therefore his need is not bonafide. The said approach of the Prescribed Authority is totally illegal. The date of retirement of a person is certain and in the present case it was 31st of May, 2000 while the order of the Prescribed Authority is dated 3rd of July, 1998. A judicial notice can be taken that such matters remain pending in Courts at various stages of litigation for years together. To obviate the difficulty of such landlord, it has been provided that an application for release by a landlord who is in occupation of a public building for residential purposes which he has to vacate on account cessation of his employment may file a release application at any time within a period of one year before the expected date of cessation of the employment but order of eviction on such application shall take effect only on the date of his actual cessation. 22. It was also urged by Shri Mool Behari Saxena, learned counsel for the petitioner, that the application was not maintainable as it was filed prior to the period of more than two years of the expected date of retirement. 22. It was also urged by Shri Mool Behari Saxena, learned counsel for the petitioner, that the application was not maintainable as it was filed prior to the period of more than two years of the expected date of retirement. The release petition was filed on or about 21st of September, 1997. The landlord was due to retire on 31st of May, 2000. The said argument has got no substance. The release was sought for both under Section 21 (1)(a) and 21 (1-A) of the Act. In any case, the release application as framed was maintainable under Section 21(1) (a) of the Act. During the pendency of the appeal, the respondent took the voluntary retirement and retired prematurely. This subsequent event will make the application maintainable under Section 21 (1-A) of the Act. It is well settled law that subsequent events can be taken into consideration by the appellate Court to shorten the litigation and provide the effective relief to the parties. 23. Before parting with the case, it may be noted that in the present writ petition written argument has been filed by the learned counsel for the petitioner wherein remand of the case to the trial Court to decide the case on merits has been prayed for. Strikingly, in the entire written argument there is not even a single averment that the respondent landlord has got any accommodation except the disputed one, or he was not in occupation of a public building for residential purposes and/or is not retired from the service. The plea that petitioner has been deprived of her statutory right of appeal under Section 22 of the Act raised in the written argument, cannot be a ground to set aside an order which is otherwise legally justified, equitable, justice oriented and has caused no prejudice to the petitioner. 24. At the end, the learned counsel for the petitioner prayed for time to vacate the accommodation in dispute to which the learned counsel appearing for the respondent has no serious objection. He fairly accepts that some reasonable time may be granted to the petitioner. 24. At the end, the learned counsel for the petitioner prayed for time to vacate the accommodation in dispute to which the learned counsel appearing for the respondent has no serious objection. He fairly accepts that some reasonable time may be granted to the petitioner. The petitioner is permitted to remain in the disputed accommodation till 31st of August, 2009 provided she files an undertaking on affidavit within a period of one month before the Prescribed Authority that she will vacate the disputed accommodation and will hand over the peaceful vacant possession to the respondent No. 1 on or before 31st of August, 2009. The petitioner shall also deposit the arrears of rent including future rent up to 31st of August, 2009 within a period of one month. 25. In case of default of either of the conditions as stipulated above, the time granted by this Court shall stand vacated automatically and it shall be open to the landlord to apply for execution of the release order. 26. If the petitioner fails to vacate the accommodation in dispute on or before 31st of August, 2009, the executing Court shall issue a writ for delivery of possession as soon as it is applied for and the petitioner would also be liable to pay damages for the use and occupation of the disputed house @ Rs.10,000/- per month henceforth May, 2009 to the date of actual delivery of possession to the landlord. In view of the above discussion, the writ petition lacks merit. It is, therefore, dismissed with cost of Rs. 5,000/-. ————