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2009 DIGILAW 3463 (ALL)

CHOTEY LAL v. KAMAL KISHORE

2009-11-11

SHISHIR KUMAR

body2009
JUDGMENT Hon’ble Shishir Kumar, J.—This writ petition has been filed quashing the order dated 10.4.2009 (Annexure 11 to writ petition) and order dated 23.9.2009 (Annexure 14 to writ petition). 2. Brief facts arising out of writ petition are that respondent being landlord filed a suit which was numbered as P.A. Case No. 4 of 2008 for release of the accommodation in dispute under Section 21(1)(a) of the Act No. 13 of 1972. After receipt of notice, petitioner filed an objection stating therein that accommodation in dispute was initially in the form of an open piece of land let out to one Sri Allauddin and at this stage one Sri Dwarika Prasad was its owner. Sri Allauddin with the consent of Sri Dwarika Prasad sub-let the aforesaid accommodation to grandfather of petitioner namely Sri Munna Lal who had been paying rent to Sri Dwarika Prasad through Sri Allauddin @ Rs.12 per month. It has further been stated that Allauddin has collected rent from the predecessor of petitioner and he was not its real owner and rent was being collected on behalf of Dwarika Prasad. Sri Dwarika Prasad died leaving behind two daughters as his only heirs. It was stated that neither Sri Allauddin nor his successor including his son Gyasuddin were the owners of the accommodation in dispute nor they were entitled to execute any sale deed, therefore, sale deed dated 17.12.2004 through which respondent-landlord derives title is not legally and validly executed document and has not conferred any right and title on the respondent Sri Kamal Kishore. Further it was said that Sri Kamal Kishore was also gainfully engaged and did not need this disputed property for his house. It has also been denied by tenant-petitioner that he was not doing anything at the disputed place and he was running parchun shop from his house. In support of their pleadings, parties have filed their respective affidavits and brought on record various evidences. It has further been stated that when accommodation in dispute was let out, it was an open piece of land, therefore, the provision of Act No. 13 of 1972 are not applicable to the accommodation in dispute. Further, respondent is not the owner of the accommodation in dispute, therefore, he is not entitled to get the property released in his favour. Further, respondent is not the owner of the accommodation in dispute, therefore, he is not entitled to get the property released in his favour. Petitioner has also brought on record the affidavits of Ramesh Chand Sharma dated 5.12.2008 and of Babu Lal Sharma dated 7.11.2008 who have supported the claim of petitioner. The entire accommodation in dispute is primarily an open piece of land. Apart whereof is covered by tin-shed supported on wooden pillars on two sides and only pakka construction is towards the front which is a wall to support a gate. 3. It has further been stated that predecessor namely Smt. Afzal bibi claims herself to be the owner of the shop in dispute on the basis of judgement and decree dated 30.5.1988 passed in Original Suit No. 38 of 1988. Petitioner coming to know regarding the aforesaid fact, the actual owner of the property has taken to the satisfaction by making an application for impleadment and has also filed a Suit No. 134 of 2009 for cancellation of the judgement and decree dated 30.5.1988 as well as the sale deed dated 17.12.2004, therefore, Kamal Kishore, the respondent has got no title and interest in the property. The aforesaid application has not been decided instead it was kept pending and it was rejected on 10.4.2009 on the same date when the judgement was passed against petitioner releasing the accommodation in favour of respondent. Petitioner filed an appeal. In the meantime, during pendency of appeal, when proceeding for execution was initiated Sri Mahesh Chandra Singh has filed an objection under Order XXI, Rule 97 stating therein that he was the owner of the shop in dispute and Smt. Afzal Bibi has got no transferable right and title in property in dispute. Therefore, the sale deed executed will not confer the right but Appellate Authority has dismissed the appeal vide its judgement and order dated 23.9.2009. Hence, the present writ petition. 4. Therefore, the sale deed executed will not confer the right but Appellate Authority has dismissed the appeal vide its judgement and order dated 23.9.2009. Hence, the present writ petition. 4. Sri K.K. Arora, learned counsel for petitioner has raised various points and arguments to this effect that if there is any doubt or an objection has been raised that respondent is not landlord and in view of present facts and circumstances, once the application was filed by one Mahesh Chand Singh, who alleged himself to be owner of the property, therefore, by virtue of the sale deed executed by Smt. Afzal Bibi in favour of respondents, no right can be conferred upon respondent-landlord. Further, depositing rent under Section 30 of the Act cannot be inferred that petitioner has admitted the relationship as well as the landlord and owner of the property and he is estopped to raise this point before the Court. He has placed reliance upon the following judgements of the Apex Court. 1. (2005)7 SCC 791 , Harshad Chiman Lal Modi v. DLF Universal Ltd. and another. 2. 2007 JT (1) SC 623, Official Trustee of West Bengal v. Stephen Court Ltd. “19. The Company’s locus to maintain the application was not questioned. True and affidavit in opposition has been filed, but it is equally true that therein certain suggestions were made; one of them being enhancement in the quantum of rent. The High Court passed an order enhancing the quantum of rent, which was beneficial of the Official Trustee. It accepted the same without any demur. Benefit of the order was, thus, taken. It was only at its suggestion, a valuer was appointed. The recommendations of the valuer as regards the quantum of monthly rent which would be payable at the end of the period of lease was not questioned. The High Court also accepted the same. The order of the High Court dated 17.4.1984 must be judged in the aforementioned factual backdrop. The High Court for all intent and purport accepted the suggestions of the Official Trustee.” 3. (1987) 4 SCC 410 Richpal Singh and others v. Dalip. “9. The High Court also accepted the same. The order of the High Court dated 17.4.1984 must be judged in the aforementioned factual backdrop. The High Court for all intent and purport accepted the suggestions of the Official Trustee.” 3. (1987) 4 SCC 410 Richpal Singh and others v. Dalip. “9. Our attention was drawn by Sree Harbans Lal, learned counsel appearing for the appellants to Section 98 of the Act, as to the power of the Revenue Court to refer to the Civil Court a decision by the Revenue Court if it thought proper and also to Section 99, where there is power to refer to High Court question as to jurisdiction. These provisions, in our opinion, do not in any way affect the question whether the decision of the Revenue Court under the Revenue Act can operate as res judicata in certain cases like the present. The limits of the jurisdiction would be apparent by the fact that in all suits by a landlord to eject a tenant, do not encompass suits to decide whether a person is a tenant or not or whether the plaintiff is a landlord or not. The question was answered by this Court in Om Prakash Gupta v. Rattan Singh (1964) 1 SCR 259 where Sinha, C.J. dealing with the Delhi Rent Control Act observed at pages 264 and 265 as follows : “The most important question that arises for determination in this case is whether or not the Rent Control authorities had jurisdiction in the matter in controversy in this case. Ordinarily it is for the Civil Courts to determine whether and, if so, what jural relationship exists between the litigating parties. But the Act has been enacted to provide for the control of rents and evictions of tenants, avowedly for their benefit and, protection. The Act postulates the relationship of landlord and tenant which must be a pre-existing relationship. The Act is directed to control some of the termination incidents of that relationship. Hence there is no express provision in the Act empowering the Controller, or the Tribunal, to determine whether or not there is a relationship of landlord and tenant. In most cases such a question would not arise for determination by the authorities under the Act. A landlord must be very ill-advised to start proceedings under the Act, if there is no such relationship of landlord and tenant. In most cases such a question would not arise for determination by the authorities under the Act. A landlord must be very ill-advised to start proceedings under the Act, if there is no such relationship of landlord and tenant. If a person in possession of the premises is not a tenant, the owner of the premises would be entitled to institute a suit for ejectment in the Civil Courts, untrammelled by the provisions of the Act. It is only when he happens to be the tenant of premises in an urban area that the provisions of the Act are attracted.” 16. In that view of the matter, we are of the opinion that the High Court of Punjab and Haryana was right in holding that there was no res judicata so far as the second suit based on the assertion of the title of the respondent was concerned. The appeals must, therefore, fail and are accordingly dismissed with costs.” 5. In spite of points raised issue was not framed to this effect that whether there is any relationship of respondent and tenant between the parties or not. Taking support of 1996 ARC, (Page 14), it is not necessary that a person who is a landlord may be the owner of the property. In view of the fact that Sri Manoj Chandra has filed an application which is on record on 10.4.2009, for impleadment that the person who has sold the property in favour of respondent is not the person authorised, therefore, in such circumstances, the Court below ought to have decided the issue regarding the relationship of landlord and tenant between the parties. Admittedly, suit is still pending for cancellation of sale deed, no finding has been recorded by the Courts below that whether Act No. 13 of 1972 is applicable or not in view of the construction which is existing on the spot. It was obligatory on the part of the Court to decide it in view of various judgements like— 1. 2003(1) AWC 430 , Majnoo v. Tara Chand. “25. It was obligatory on the part of the Court to decide it in view of various judgements like— 1. 2003(1) AWC 430 , Majnoo v. Tara Chand. “25. It may further be noticed that the Apex Court in its decision in the case of Santosh Hazari v. Purushottam Tewari, 2001(1) AWC 824 (SC) : 2001 (1) JLJ 401 , rendered by a Bench of three Hon’ble Judges had indicated that the phrase ‘substantial question of law’, as occurring in the amended Section 100 of the C.P.C. Is not defined in the Code. However, it was pointed out that the word substantial, as qualifying ‘question of law’ means, ‘of having substance’, ‘essential’, ‘real’, of sound worth’, ‘important’ or ‘considerable’. It was further pointed out that it is to be understood as something in contradistinction with-technical, of no substance or consequence, or academic merely. A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be ‘substantial’, a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, in so far as the rights of the parties before it are concerned.” 2. 1980 AWC 626, M.P.Chhatri v. Madho Prasad Tandon. “10. In regard to the second contention of the learned counsel, an application has been made in this Court with a prayer that this Court may be pleased to determine the enhanced rent of the land for the entire period and permit the appellants to deposit the same with costs. This application has been made on the ground that Section 29-A of U.P. Act No. 13 of 1972 applies to the said building. Section 29-A of the Act applies of a case where only a land has been let out and where the tenant with the landlord’s consent has erected any permanent structure and incurred expenses in execution thereof. In this application there is no averment at all that the appellants had made any permanent constructions with the consent of the landlord after taking the land on lease. No such averment has even been made in the written statement. In this application there is no averment at all that the appellants had made any permanent constructions with the consent of the landlord after taking the land on lease. No such averment has even been made in the written statement. The material ingredient, therefore, namely, the consent of the landlord is absent in the present case and as such Section 29-A of the Act does not apply to the facts of the case at all and the application made under Section 29-A of the Act is accordingly rejected. This submission, therefore, made by the learned counsel for the first time in second appeal is wholly without substance as the factual basis on which the applicability of Section 39-A of the Act is dependant has neither been averred nor proved by the appellants.” 3. 1977 AWC 581, Smt. Shanti Devi v. Dr. Atma Dev Sharma and others. “8. The crucial point that arises for consideration is whether the property for the release of which the application under Section 21 was moved falls within the ambit of the expression ‘building under tenancy’. A perusal of the petitioner’s own application under Section 21 makes it clear that he nowhere described it as a building. In all the paragraphs except paragraph 9 he was inclined to call it as land. Even at the foot of the application where boundaries were given these boundaries were alleged to be of the land and not of any building. In para 9 it was stated that the land in dispute covered about 350 sq.yards and most of it was lying vacant. Only in a portion of it one Kothri is situate. By this Kothri or by the existence of the boundary walls around the land, the learned District Judge was inclined to hold that it falls within the definition of ‘building’. There is not a word in para 9 of the application under Section 21 to show that the Kothri was constructed by the landlord and was let out by him. There is much less evidence on the record to show that the alleged Kothri which the tenant described only as a thatch, was constructed by the tenant with the consent of the landlord or any rent was agreed to be paid in respect thereof. According to both the parties, the rent was payable only in respect of the land. There is much less evidence on the record to show that the alleged Kothri which the tenant described only as a thatch, was constructed by the tenant with the consent of the landlord or any rent was agreed to be paid in respect thereof. According to both the parties, the rent was payable only in respect of the land. Therefore, the thatch or the Kothri, if erected by the tenant, could not form part of the tenanted accommodation and could not be treated as a building in his tenancy for the purpose of Section 21. Even factually when only land was let out it could not be treated as a building within the meaning of this word as given in Act XIII of 1972. It will not be out of place to refer to the case of Narain Chand Das v. Panna Lal, 1969 AWR 52 in which the landlord had let out a piece of land to the tenant and permitted him to construct a tin shed etc. The tenant was allowed to take away materials of construction at the time when he left the land. It was held that the land does not become an accommodation within the meaning of the Act. In the instant case if the landlord is not the owner of the room or the thatch and there was also no agreement with the tenant that he would be entitled to this room or thatch at the time the land was vacated by him the landlord cannot lay his hands on it and cannot on its basis convert the land into building.” 6. Sri K.K.Arora, learned counsel for petitioner submits that in spite of fact the Court should have taken into consideration the Rules 16(1)(d) of the Rules that has not been taken into consideration, therefore, judgement and order passed by the Court below is liable to be quashed and he has placed reliance upon the judgements reported in 2006(2) ARC 448, Mangat Ram and others v. District Judge, Pauri Garhwal and others; 2002(2) ARC 298, Ramesh Chandra Kesharwani v. Dwarika Prasad and another and 2005(2) ARC 243 Swaraj Kumar (Sri) v. Arvind Kumar. Taking support of aforesaid judgements, learned counsel for petitioner submits that it was the duty of the Court that part of release of the accommodation, if not considered, order passed by Court below is bad in law and that has to be considered by the authority while passing the order of release against the party concerned. 7. On the other hand, Sri Triloki Nath, learned counsel appearing for respondent has submitted that petitioner has admitted that he is tenant and if he has admitted this fact, he cannot at this stage raise this point before this Court and can say that he is not the tenant. In the application, under Section 30 of the Act, made by petitioner before the Court for the purposes of depositing rent, he has admitted that respondent is the landlord. As regards this issue, petitioner has not press this issue which is apparent from the finding recorded as well as no issue was framed that Act No. 13 of 1972 is not applicable. At no point of time petitioner has stressed before the Court regarding framing of particular issue regarding applicability of Act No. 13 of 1972. 8. As regards, consideration of claim of petitioner in view of Rule 16(2) of the Act, it is a commercial accommodation and it was not raised before the Court below, therefore, in view of Apex Court Judgement reported in 2008(7) ADJ 501 , Ganga Devi v. District Judge, Nainital and others it has been held that Rule 16(2)(c) as regards bonafide need of landlord and comparative hardships, it is a relevant factor for determining the question as to whether requirements of landlord is bonafide, or not, within meaning of Act and Rules. Consideration of Rule 2(c) of Rules, a finding by both the Courts have been recorded that landlord’s need was bonafide then as regards to partial eviction of his shop in dispute, cannot be gone into by the writ Court. Reliance has been placed upon paras 10, 13, 15, 16, and 19 of the said judgement. The same are being quoted below: “10. Before the Prescribed Authority, no plea was taken by the appellants that another shop was available to the respondent No. 3. The prescribed Authority, on the basis of a purported statement made by the sister of the respondent Nos. The same are being quoted below: “10. Before the Prescribed Authority, no plea was taken by the appellants that another shop was available to the respondent No. 3. The prescribed Authority, on the basis of a purported statement made by the sister of the respondent Nos. 2 and 3 arrived at a purported finding that ground-floor of one building, commonly known as “Durga Cottage” is available. The Appellate Authority, however, upon consideration of the entire materials on record arrived at a different conclusion opining that the respondent No. 3 has been living with his wife and children independently and having regard to the fact that admittedly he has been receiving a petty sum of Rs. 2,000/- by way of pension wherewith it was not possible to maintain a family of 4-5 members, he must augment his source of income. It was also found that one of his sons had been studying in Nainital. No evidence was brought on record to show that he has any property other than the one where the shop in question is situated. Respondent No. 3 was found to have been residing in a portion of first floor of the property and the disputed shop was situated in the ground-floor and on the said premise it was held that it was not possible to ask him to open a shop at the first-floor by giving up his residential accommodation. 13. We are, however, not oblivious of the fact that with the said rejoinder a sketch map has been annexed to show that it measured 13 ft x 20 ft. We are, however, of the opinion that such disputed questions of fact cannot be gone into by this Court for the first time. Comparative hardship, indisputably is a relevant factor for determining the question as to whether the requirement of the landlord is bona fide or not within the meaning of the provisions of the said Act and the Rules. It is essentially a question of fact. Such a question of fact, however, is to be determined on the touchstone of the statutory provisions as contained in Section 21(1)(a) and Rule 16(2)(c) of the Rules. 15. There is also nothing on record to show that for the last so many years the appellant had made any effort to find out a tenanted premises for herself so that she can continue with her business. 15. There is also nothing on record to show that for the last so many years the appellant had made any effort to find out a tenanted premises for herself so that she can continue with her business. No such material at least has been brought on record. Any subsequent event as regards thereto has neither been pleaded nor proved. The provisions of the statutory rules must be interpreted so as to give effect to the object and purport of the Act. It cannot be applied in a vacuum, as the statute requires comparison of the hardship of both the tenant as also the landlord. It is, therefore, not a case where Rule 16 has any application. 16. The Court would not determine a question only on the basis of sympathy or sentiment. Stricto sensu equity as such may not have any role to play. 19. In the facts and circumstances of this case, we are of the opinion, that six months’ time should be granted to the 1st respondent to vacate the premises which should serve the ends of justice. It is directed accordingly. Subject to the aforementioned directions this appeal is dismissed. In the facts and circumstances of this case, there shall be no order as to costs.” 9. Further argument has been raised that as he has admitted that he is tenant, therefore, in view of Apex Court judgement reported in (2006) 5 SCC 532 , Bhogadi Kannababu and others v. Vuggina Pydamma and others he cannot deny at this stage that there is no relationship of landlord and tenant. Once in the application made under Section 30 of the Act before the Court below while deposing the rent, he has admitted this fact that he is the tenant and respondent is landlord, therefore, he has no right to deny the title of respondent. 10. I have considered the submissions made on behalf of the parties and have perused the record. The prescribed authority has recorded a finding that respondents has purchased the property and from perusal of document, it clearly appears that there is a relationship of landlord and tenant between the parties. As regards pendency of suit filed by one Mahesh Singh against Smt. Afzal Bibi, it is not said that respondent is not landlord of property in question. The prescribed authority has recorded a finding that respondents has purchased the property and from perusal of document, it clearly appears that there is a relationship of landlord and tenant between the parties. As regards pendency of suit filed by one Mahesh Singh against Smt. Afzal Bibi, it is not said that respondent is not landlord of property in question. As regards the applicability of the Act, prescribed authority as well as Appellate Authority has recorded a finding that construction was made with the consent of landlord, therefore, pakka construction has been made, in such circumstances, application under Section 21 (1)(a) of the Act is maintainable. The prescribed authority has recorded a finding of fact that on behalf of petitioner it was tried to be proved that one Mahesh Singh is the owner of the property in question. But from document 34-Gha, it is clear that it is not proved that property in dispute is a part of property mentioned in the document. It is also not clear from the said document that in the district of Philibhit whether property is situated, though it is admitted to the parties that it is a small shop. Further sale deed dated 17.12.2004 has not been cancelled by any competent authority of law. Further, as regards comparative hardship, a finding of fact has been recorded by both the Courts that need of respondent is more genuine than petitioner in view of fact that petitioner is doing his purchun business from his house. He is not doing his business at that place. As petitioner has already admitted this fact while depositing rent under Section 30 of the Act that respondent is the landlord, though in the present proceeding subsequently he wanted to deny this fact but in view of Section 116 of the Evidence Act, petitioner cannot go behind the admission made in the document under Section 30 of the Act. 11. As petitioner has already admitted this fact while depositing rent under Section 30 of the Act that respondent is the landlord, though in the present proceeding subsequently he wanted to deny this fact but in view of Section 116 of the Evidence Act, petitioner cannot go behind the admission made in the document under Section 30 of the Act. 11. As regards, the contention raised by petitioner that Court has not considered the release of the part of the accommodation in favour of petitioner, I am of view that it was never raised before the Court below and in view of judgement of the Apex Court in Ganga Devi (supra) the Apex Court has held that once the finding has been recorded by both the Courts that need of landlord is genuine and bonafide, then partial eviction of shop in dispute cannot be gone into while exercising power under Article 226 of the Constitution of India. 12. In view of aforesaid fact, writ petition is devoid of merits and is hereby dismissed, however, without imposing any cost. ————