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2013 DIGILAW 533 (UTT)

NIRANJAN DAS PREM KUMAR v. NAVEEN GUPTA

2013-08-19

B.S.VERMA

body2013
JUDGMENT Hon’ble B.S.Verma, J. By means of this writ petition, the petitioners have sought a writ in the nature of certiorari quashing the judgment and order dated 13.5.2013 passed by District Judge, Dehradun in Rent Control Appeal No.35 of 2012 and judgment and order dated 18.2.2013 passed in P.A. Case No.49 of 2009 Naveen Gupta vs. M/s Niranjan Das Prem Kumar. 2. Brief facts of the case, according to the petitioner as narrated in the writ petition are, that Ramesh Kumar Gupta was owner and landlord of the disputed property. He died on 22.3.2004 leaving behind Naveen Kumar Gupta, Pawan Kumar Gupta, Vijay Kumar Gupta, Kamal Kumar Gupta and Radha Mittal, as legal representatives, who also became the joint owner of the premises in question. Smt. Radha Mittal, married daughter of Late Ramesh Kumar Gupta, by way of registered sale deed dated 18.8.2010 transferred her undivided 1/5th share in the property in favour of one Harish Mehta, who further by way of registered sale deed dated 26.11.2011, transferred his undivided 1/ 5th share in the property in dispute in favour of petitioner no.2 Chandra Shekhar Bhutani. As per the sale deed, the purchaser who is in possession of the property will now continue to be in possession of the transferred share as owner of the property. Accordingly, the petitioner Chandra Shekhar Bhutani became joint owner of the undivided 1/5th share of the property with the respondent plaintiffs. 3. Suit no.524 of 1986 was instituted by Pawan Kumar S/o Ramesh Kumar Gupta impleading his father Ramesh Kumar Gupta, Vijay Kumar Gupta and other two sons as defendants. The plaintiff Pawan Kumar Gupta sought a decree declaring the plaintiff as owner of the properties mentioned in Schedule A. Said suit was decreed on 10.10.1986. The petitioner contends that the property under the tenancy of the petitioners was into the share of Vijay Kumar Gupta who was a Lunatic (mentally disordered/challenged person). 4. According to the petitioners, a collusive suit bearing O.S. No.368 of 2009 was filed by Naveen Kumar Gupta impleading Pawan Kumar Gupta, Vijay Kumar Gupta and Kamal Gupta as defendants. Vijay Kumar Gupta in whose share the disputed property had fallen was impleaded as defendant through Pawan Kumar Gupta. 4. According to the petitioners, a collusive suit bearing O.S. No.368 of 2009 was filed by Naveen Kumar Gupta impleading Pawan Kumar Gupta, Vijay Kumar Gupta and Kamal Gupta as defendants. Vijay Kumar Gupta in whose share the disputed property had fallen was impleaded as defendant through Pawan Kumar Gupta. The petitioner contends that the aforesaid suit was filed by Naveen Kumar Gupta without seeking appointment of guardian for the mentally handicapped person under Order 32 C.P.C. The suit was decreed on 25.9.2009. 5. Thereafter, a release application u/s 21(1)(a) of U.P. Urban Buildings (Regulation of Lettin Rent and Eviction) Act, 1972 (hereinafter referred to as the ‘Act’) was filed by Naveen Kumar Gupta against the petitioner on the ground of bonafide need for release of premises in question. 6. The release application was contested by the petitioner by filing written statement/objections. It was pleaded in the written statement that plaintiff has sufficient space to do his business. There is nobonafide requirement of the premises in question to Naveen Kumar Gupta. It was further pleaded that Naveen Kumar Gupta is not the landlord of the disputed premises. All the legal heirs of Late Sri Ramesh Kumar Gupta are co-owner and co-landlord of the disputed premises and the release application filed by only Naveen Kumar IS not maintainable. It was also pleaded in the written statement that the petitioners have earned goodwill of the business and if the premises in question is release in favour of the applicant, they will suffer greater hardship. 7. Both the parties led documentary evidence by way of affidavits along with annexures in support of their respective contentions. After hearing both the parties and after going through the evidence led by them, learned Prescribed Authority, vide judgment and order dated 18.2.2013, allowed the release application. 8. Feeling aggrieved by the judgment and order of the Prescribed Authority, the petitioners preferred rent control appeal before the District Judge. Vide judgment and order dated 13.5.2013, learned District Judge has also dismissed the appeal. Hence, the petitioners have now filed the present writ petition before this Court. 9. I have heard learned counsel for the parties and perused the entire material placed on record. 10. At the outset it may be mentioned that the scope of writ jurisdiction under Articles 226 and 227 is limited. Hence, the petitioners have now filed the present writ petition before this Court. 9. I have heard learned counsel for the parties and perused the entire material placed on record. 10. At the outset it may be mentioned that the scope of writ jurisdiction under Articles 226 and 227 is limited. This Court in exercise of writ jurisdiction cannot sit like a court of appeal and cannot re-appreciate or re-evaluate the evidence so as to arrive at a different conclusion. Only perversity in the impugned order can be seen to find out whether there is a case of mis-reading of evidence by the courts concerned. 11. It has been observed by the Apex Court in the case of Surya Dev Rai Vs. Ram Chander Rai and others [(2003) 6 Supreme Court Cases, 675 that “On the other hand, supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When a subordinate I court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does not have or the jurisdiction though available is being exercised by the court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby) the High Court may step in to exercise its supervisory jurisdiction.” 12. In the case Ranjeet Singh Vs. Ravi Prakash [(2004) 3 S.C.C. page 682], the Apex Court has observed inter alia in paragraph 4 of the judgment that ‘’An error which needs to be established by lengthy and complicated I arguments or by indulging in a long-drawn process of reasoning) cannot possibly be an error available for correction by writ of certiorari. If it is reasonably possible to form two opinions on the same material} the finding arrived at one way or the other} cannot be called a patent error. As to the exercise of supervisory jurisdiction of the High Court under Article 227 of the Constitution also} it has been held in Surya Dev Rai that the jurisdiction was not available to be exercised for indulging in reappreciation or evaluation of evidence or correcting the errors in drawing inferences like a court of appeal.” 13. The Apex Court in the case of Shamshad Ahmad and others Vs. Tilak Raj Bajaj (Deceased) through L.RS. The Apex Court in the case of Shamshad Ahmad and others Vs. Tilak Raj Bajaj (Deceased) through L.RS. and others [(2008) 9 Supreme Court Cases, 1] while dealing with Articles 226 and 227 of the Constitution of India has observed as under :- “38. Though powers of a High Court under Articles 226 and 227 are very wide and extensive over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction, such powers must be exercised within the limits of law. The power is supervisory in nature. The High Court does not act as a court of appeal or a court of error. It can neither review nor reappreciate, nor reweigh the evidence upon which determination of a subordinate court or inferior tribunal purports to be based or to correct errors offact or even of law and to substitute its own decision for that of the inferior court or tribunal. The powers are required to be exercised most sparingly and only in appropriate cases in order to keep the subordinate courts and inferior tribunals within the limits of law.” 14. In the case at hand, there is concurrent finding of fact recorded by the two courts below that the landlord has bonafide requirement of the disputed property to expand his business. It has also been held by the two courts below that the tenant-petitioners have not made any effort to search for alternative shop hence the balance of comparative hardship is also tilted in favour of the landlord. 15. The first contention of the learned counsel for the petitioners was that the finding recorded by the courts below are vitiated in law as the courts have not considered the material evidence before arriving at the finding. It was contended that both the courts below have not considered this aspect of the matter that the partition decree was obtained by Naveen Kumar Gupta by playing fraud upon the court without impleading Smt. Radha Mittal who was one of the co-owner in the property. 16. The next contention of the learned counsel was that the release application filed by Naveen Kumar Gupta alone was not maintainable without impleading the other erstwhile co-sharers of the family. 17. 16. The next contention of the learned counsel was that the release application filed by Naveen Kumar Gupta alone was not maintainable without impleading the other erstwhile co-sharers of the family. 17. The next contention of the learned counsel was that Smt. Radha Mittal has sold the property to Harish Mehta vide sale deed dated 18.8.2010, who further sold the property to the petitioner vide sale deed dated 26.11.2010. It was contended that since the petitioner has purchased the share of Smt. Radha Mittal, he has become co-owner in the disputed property. 18. It was next by the learned counsel for the petitioners that O.S. No.368 of 2009 was filed by the respondents without adopting the provisions of Order 32 Rule 5 of the Code of Civil Procedure. 19. In support of his arguments, learned counsel for the petitioner placed reliance upon the followingjudgments:- i) M/s. Kunwar Ayurvedic Pharmacy Pvt. Ltd. v. VIIIth Addl. District Judge, Kanpur and others, reported in 1981 (U.P.) l R.C.C. ii) Adulalim v. Sheikh Jamal Uddin Ansari and others, reported in (1998) 9 SCC 683 . iii) Ram Chandra Arya v. Man Singh and another, reported in AIR 1968 Supreme Court 954 iv) Imambi vs. Azeeza Bee 2000 Vol. 9 Judgment Today Page 562. 20. Per contra, learned counsel for the respondent had contended that on the basis of admission made in the application that Naveen Kumar Gupta was receiving rent on behalf of all co-owners the release application filed by Naveen Kumar Gupta is very well maintainable. It was contended that as perA settled position of law when an application is moved by co-landlord for release under Section 21(1)(a) of the Act without impleading others he is competent enough to initiate release proceedings alone without even impleading co-owners. Reliance was placed upon a Full Bench Judgment of the Allahabad High Court, Gopal Dass v. Ist Addl. District Judge, [1987] 0 AWC 538, [1987] 13 AIILR 275, wherein the said High Court as under:- “So far as the applicability of this Rule to the present case is concerned) there is no problem. Murlidhar Sah who has brought the action for eviction of the premises in question is undoubtedly the landlord. He has signed the application. He alone is competent to sign the application. Murlidhar Sah who has brought the action for eviction of the premises in question is undoubtedly the landlord. He has signed the application. He alone is competent to sign the application. However, we may point out that the requirement of R.15 (2) that an application for release of premises owned by co-owners should be signed by all co-owners would be invalid. One co-owner is competent to maintain an action of eviction of the tenant of the entire premises, since he can be considered as a landlord within the meaning of S.3UJ of the Act. One co-owner alone would be competent to sign such an application.” 21. It was further contended by learned counsel for the respondent that the case-law Abulalim v. Sheikh Jamal Uddin Ansari and others (Supra), relied upon by the learned counsel for the petitioner, has not been approved by the Hon’ble Supreme. Court in the case of Pramod Kumar Jaiswal v. Bibi Husn Bano, AIR 2005 S.C. 2857 , 2005(2) ARC 921 (Supreme Court). The Apex Court while referring to the case of Abdul Alim (Supra) in paragraph 7 has inter alia observed as under:- “7. In Abul Alim vs. Sheikh Jamal Uddin Ansari (supra) relied on by the learned counsel for the appellants, the question has not been considered with reference to the relevant provision of the Transfer of Property Act referred to above. There is also no discussion on this question. It appears that in that case, an application filed by the landlord under Section 21(1)(a) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 for release of the building from the tenant, was held to be not maintainable because the tenant had in the meanwhile acquired co- ownership in the demised shop. It is simply stated ‘that the change of status of the tenant to that of being an equal co-owner of the un-partitioned property, would, therefore, lead to an irresistible conclusion that the release application was not maintainable. It is not disputed that there has been no partition of the suit premises till date. The High Court was under the circumstances not justified in upsetting the findings of the trial court and the appellate court in exercise of its powers under writ jurisdiction. It is not disputed that there has been no partition of the suit premises till date. The High Court was under the circumstances not justified in upsetting the findings of the trial court and the appellate court in exercise of its powers under writ jurisdiction. With respect} we cannot consider this decision as laying down a proposition of law that on a tenant acquiring the right of a co-owner landlord} the tenancy of a building gets extinguished and the landlord cannot seek eviction of the tenant under the Act or the fixation of fair rent under the Act.” 22. It was next contended that the Hori’ble Apex Court has decided subsequent case Imambi vs. Azeeza Bee JT 2000 Vol. 9 Judgment Today Page 562 on the basis of Abdul Alim’s case. Pramod Kumar Jaiswal’s case is a Larger Bench judgment wherein it has been held that unless entire property is purchased the tenancy right would not be determined in view of provision of section 111 (d) of the Transfer of Property Act. 23. The next contention of the learned counsel for the respondent was that a similar controversy had also arisen before this Court in Bhagwati Prashad Goel v. The. A District Judge, Almora and others, reported in 2010(1) U.D. 123 , wherein this Court has considered this aspect of the matter in detail. Relevant paragraphs of the said judgment are quoted below.- “18. In view of the Apex Court judgment) I hold that the petitioner having purchased 1/11th shared of the unpartitioned property cannot claim that the application for release by co-oumer is not maintainable. The Prescribed Authority as well as the appellate court has rightly rejected the claim of the petitioner on this score. 19. Moreover, I am of the considered opinion that the tenant-petitioner having acquired 1/11th share in the disputed property} the release against such tenant is fully maintainable. I am fortified by the Division Bench judgment of the Allahabad High Court in the case of Smt. Sarju Devi and others vs. The Prescribed Authority Kanpur and another [1976, Allahabad Weekly Cases, Page 752] has observed in paragraph 20 as under:- “20. Even if it should be established that the tenant had acquired one-fourth share in the suit house) we do not see how the proceedings before the Prescribed Authority would become incompetent. Even if it should be established that the tenant had acquired one-fourth share in the suit house) we do not see how the proceedings before the Prescribed Authority would become incompetent. So long as the tenancy is not extinguished by merger of the interest of the landlord and that of the tenant in the entire demised premises} the tenant does not by reason of his purchasing a share of the landlords’ interest} cease to be a tenant. It follows that he does not become a landlord as the same person cannot, as pointed out by the Supreme Court in Badri Narain’s case [supra], at the same time be both a landlord and a tenant. Hence the proceedings before the Prescribed Authority had to be continued even if it was established that the tenant had purchased one-fourth share of the landlords in the suit house and had become a co- owner.” 20. The Apex Court in the case of T. Lakshmipathi and others Vs. P. Nithyananda Reddy and others [(2003) 5 Supreme 9 Court Cases, 150] while considering the provisions of Section 111 (d) of the Transfer of Property Act 1882} has observed in paragraph 18 as under:- “18. In the case a hand} it cannot be denied} nor has it been denied} that the appellants herein are not purchasers of the entire ownership interest in the property. What they have purchased is interest of some out of all the co-owners of the property. The interest of Respondent 1, whatever be its extent} has not come to vest in the appellants. The appellants have also acquired the tenancy rights in the property. Thus they have acquired partial ownership and full tenancy rights. It cannot be said that the interests of the lessee and the lessor in the whole of the property have become vested in the appellants at the same time and in the same right. The lease cannot be said to have been determined by merger. So long as the interests of the lessee, the lesser estate and of the owner, the larger estate do not come to coalesce in fun either the water of larger estate is not deep enough to enable annihilation or the body of lesser interest does not sink or drown fully.” 24. So long as the interests of the lessee, the lesser estate and of the owner, the larger estate do not come to coalesce in fun either the water of larger estate is not deep enough to enable annihilation or the body of lesser interest does not sink or drown fully.” 24. In addition to his previous arguments, it was also contended by the learned counsel for the petitioner that in view of the provisions of Section 38 of the U.P. Act No.13 of 1972, the provision of Transfer of Property Act would not be attracted in the case at hand. It was also contended that Section 111 of the Transfer of Property Act has no co-relation in case of release application filed ix] s 21(1)(a) of the Act. It was further contended that for the purpose of ejectment the provision of Rent Control Act is applicable and how tenancy would be terminated has been given in section 20 of the Act. 25. For facility, Section 38 of U.P. Act No.13 of 1972 is quoted hereunder:- “38. Act to override T.P. Act and Civil Procedure Code.-The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Transfer of Property Act, 1882 (Act No.IV of .1882), or in the Code of Civil Procedure, 1908 (Act No. V of 1908).” 26. From the perusal of the above section, it reveals that this special act has an overriding effect notwithstanding anything inconsistent therewith contained in the Transfer of Property Act, 1882. The provision of this Act would apply but the learned counsel for the petitioner has failed to show to the Court as to what provision has been given in U.P. Act No.13 of 1972 when a sitting tenant purchase a property from the owner. It is only given in Section 111(d) of the T.P. Act which provides that a lease of immovable property determines where the interests of the lessee and the lessor in the whole of the property become vested at the same time in one person in the same right. Section 20 of Act No.13 of 1972 would not be attracted in the case at hand since it is an application field u/s 21(1)(a) against a sitting tenant. 27. Section 20 of Act No.13 of 1972 would not be attracted in the case at hand since it is an application field u/s 21(1)(a) against a sitting tenant. 27. So far as the findings on the point of bona fide requirement of the landlord is concerned, I find that the Prescribed Authority has recorded a finding of fact that the disputed shop is required by the applicant to expand his business and that the need of the landlord is bonafide and genuine. On the point of comparative hardship the Prescribed Authority has recorded a finding that the petitioner has not made sincere effort to get alternate shop and therefore the point of comparative hardship was decided against the petitioner. The appellate court has also recorded its independent finding on the point of bonafide requirement as well as comparative hardship by a detailed judgment. 28. Both the courts below have also given a categorical finding that the petitioner has admitted in its objection that Naveen Kumar Gupta and his brothers are co-owner and landlord of the disputed property. 29. Both the courts below have also given a finding that as per the admission of the petitioner the rent was being received by applicant Naveen Kumar Gupta on behalf of all other co-owners/landlord. 30. As mentioned earlier, there are concurrent findings of fact recorded by two courts below against the petitioner and the findings have been recorded by the courts below on proper appraisal of evidence. 31. For the reasons and discussion made above, I am of the view that the application moved by co-landlord Naveen Kumar Gupta for release under Section 21(1)(a) of the Act without impleading other co-landlord, IS maintainable. I do not find any perversity in the impugned orders passed by the two courts below. The writ petition being devoid of merit is liable to be dismissed outright. 32. Accordingly, the writ petition is dismissed. However, to do the complete justice, the petitioner is granted one year three month’s time to vacate the disputed premises and to deliver its peaceful and vacant possession to the respondents, provided the petitioner furnishes a written undertaking before the Prescribed Authority to that effect within a period of eight weeks from today. 32. Accordingly, the writ petition is dismissed. However, to do the complete justice, the petitioner is granted one year three month’s time to vacate the disputed premises and to deliver its peaceful and vacant possession to the respondents, provided the petitioner furnishes a written undertaking before the Prescribed Authority to that effect within a period of eight weeks from today. In case, the petitioner fails to furnish the said undertaking within the stipulated period, the respondent/landlord would be at liberty to get the disputed premises vacated through court in accordance with law. The landlord is directed to pay two years rent to the petitioner in view of section 21 of U.P. Act No.13 of 1972.