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2015 DIGILAW 3200 (ALL)

Buddhan Lal v. Mahendra Nath Gupta

2015-10-09

SUNITA AGARWAL

body2015
JUDGMENT Mrs. Sunita Agarwal,J. Heard Sri Saral Srivastava, learned counsel for the petitioner and Sri Gaurav Tripathi, learned counsel for respondents. 2. The main ground of challenge put forth by the learned counsel for the petitioner to the orders of release is that both the Courts below had erred in concluding that the disputed accommodation was leased out in the year 1950 for commercial purpose. The basis of arriving at this conclusion is the allotment order dated 22.11.1950 which is in the name of two persons namely Ram Dayal and Sanktha Prasad. The conclusion drawn by the lower appellate court is that as the disputed accommodation was allotted in the name of both father and son jointly, therefore, it appears that it was allotted in the name of firm M/s. Ram Dayal Sanktha Prasad, which was in existence at the relevant point of time. Admittedly, Ram Dayal Sanktha Prasad was the firm in the name of which business was being carried on by the predecessor in interest of the tenant. 3. The contention of the learned counsel for the petitioner is that in the release application the specific averment of the applicant-landlord is that the disputed premises was being used for residential purposes by the tenant. The averments in paragraphs 2' and 3' are as under: - "2. 3. The contention of the learned counsel for the petitioner is that in the release application the specific averment of the applicant-landlord is that the disputed premises was being used for residential purposes by the tenant. The averments in paragraphs 2' and 3' are as under: - "2. ;g fd izkFkhZ ds LokfeRo esa fLFkr Hkou la0 11@37 ,0 Xoky Vksyh dkuiqj egkuxj ds Hkwfe[k.M ij fLFkr ,d Hk.Mfj;k ,d dejk 10 x 10 fQV o ,d pcwrjk 4 x 9 fQV ds Hkkx esa ladVk izlkn iq= jke n;ky 10]07@& : i;s ekfld dh nj ls fdjk;snkj FksA ladVk izlkn dh e`R;q o"kZ 1987 esa gks x;hA ladVk izlkn ds nks iq= izse ukjk;.k o cqnnu Fks ,d iq=h FkhA ladVk izlkn dk ,d iq= izse ujk;.k vius firk th ds thou dky ls gh muls i`Fkd gks x;k Fkk vkSj vU;= jgus yxkA blh izdkj ladVk izlkn dh ,d ek= iq=h foV~Vks dk fookg Hkh ladVk izlkn ds thou dky esa gks x;k Fkk vkSj fookg ds i'pkr Jherh foV~Vks vius ifr ds lkFk vU;= fuokl djus yxhA ladVk izlkn dh e`R;q ds le; dsoy foi{kh cqn~nu gh ladVk izlkn dh fdjk;snkjh ds Hkou la0 11@37 ,0 Xoky Vksyh dkuiqj egkuxj esa fLFkr Hkkx esa fuokl djrk Fkk vkSj bl izdkj ladVk izlkn dh e`R;q ds i'pkr mDr Hkkx dk fdjk;snkj foi{kh cqnnu gqvkA foi{kh dh fdjk;snkjh esa fLFkr Hkkx dk iw.kZ fooj.k o pkSgn~nh ftlds fueqDr gsrq ;g izkFkZuk i= fn;k tk jgk gS bl izkFkZuk i= ds vUr esa fn;k x;k gSA 3. ;g fd foi{kh us tkucw>dj izkFkhZ dks fnukad 13-3-86 ls dksbZ fdjk;k vnk ugha fd;k gSA bruk gh ugh foi{kh us viuh fdjk;snkjh esa fLFkr 4 x 9 fQV ds pcwrjs ij foi{kh us ydM+h dk LVªDpj [kM+k dj mlus xqM+ phuh o crklk vkfn dks cspuk izkjEHk dj fn;k tks fdjk;snkjh dh 'krksZa dk mYya?ku gS vkSj fdjk;snkjh ds iz;kstu ds foijhr gSA" 4. The matter had travelled up in appeal and was remanded back by the order dated 16.1.2008 to the Prescribed Authority. The specific direction given by the Appellate Authority was to decide the user of the disputed accommodation. The Prescribed Authority was directed to determine as to whether the disputed accommodation no. 11/37-A was given on rent for residential purpose or commercial purpose. The specific direction given by the Appellate Authority was to decide the user of the disputed accommodation. The Prescribed Authority was directed to determine as to whether the disputed accommodation no. 11/37-A was given on rent for residential purpose or commercial purpose. The direction was given by the Appellate Court to consider "Panchashala" of the year 1987-92, Paper No. 42 as also other documents on record to arrive at a finding as to whether the disputed accommodation was being used for residential or commercial purpose. The dominant user of the disputed accommodation was required to be decided on the basis of evidence on record. 5. After remand, both the Courts below have erred in coming to a conclusion that the premise was leased out for commercial purpose as it was allotted in the name of firm M/s. Ram Dayal Sanktha Prasad. 6. The contention of learned counsel for the petitioner is that on the basis of allotment order of the year 1950, it cannot be concluded that the premises was leased out for commercial purpose in the name of firm and the petitioner had changed its user over the period of time. 7. Learned counsel for the petitioner has invited attention of the Court to the allotment order appended as Annexure 6' at page 66' of the paper book. 8. A perusal of the said document indicates that allotment was in the name of Ram Dayal Sanktha Prasad. Whether it is the name of a firm is not clear from this document. 9. Further attention has been drawn to the entries in the Municipal register "Panchashala" of the year 1963-68 in which the name of the occupant is mentioned as Ram Nath Sanktha Prasad whereas the details of tenanted accommodation is "one room one Kothari (shop)" and the rate of rent is 121/- rupees per month. Further "Panchashala" of the year 1973 shows the entry in the name of Sankatha Prasad and the details of accommodation is one shop 'Pansari' "one Room and one Kothari". Whereas the "Panchashala" of the year 1987-92 shows the entry in the name of Sankatha Prasad "One room and One Kothari" and there is no mention of shop. 10. It is pertinent to note that premises no. Whereas the "Panchashala" of the year 1987-92 shows the entry in the name of Sankatha Prasad "One room and One Kothari" and there is no mention of shop. 10. It is pertinent to note that premises no. 11/37 which consisted "one room and one Kothari" was given on rent in the year 1950 before its partition and after partition took place in the year 1962, it was renumbered as 11/37-A. The allotment order of the year 1950 does not indicate that the House No. 11/37 was given on rent for commercial purpose. The entries in the "Panchashala" Paper No. 31 of the year 1963-68 (Paper No. 32) and 41-Ga of the year 1973-78 and Paper No. 42 of the year 1987-92 show the entries of the House No. 11/37-A, which is the number given after partition. 11. Admittedly, the disputed accommodation namely 11/37-A came into existence after the year 1962, therefore, the entries from the year 1963 onwards in the Municipal register would not be conclusive proof of the fact that the undivided House No. 11/37 (old number) was given on rent for commercial purpose. 12. Moreover, the admission of the landlord in the release application is that the petitioner is residing in the disputed accommodation and has constructed a temporary wooden structure at the platform in front of the tenement and is doing business of Jaggery, Sugar and Batasha. After the matter was remanded in the year 2008, an amendment application was filed on 19th March, 2008 by the applicant-landlord to amend the pleadings in paragraphs 2 and 3 of the release application. The amendment application was allowed and the amendment has been incorporated. 13. Specific contention of learned counsel for the petitioner is that the amendment could not have been allowed as it amounts to withdrawal of the admission made by the applicant-landlord. 14. Having heard learned counsel for the parties and perused the record, this Court finds that the averments in the release application even after amendment is that initially the premises was leased out for commercial purpose but it was later on being used for residential purpose, illegally. The record further indicates that a portion of the premises in question is being used for commercial purpose. The record further indicates that a portion of the premises in question is being used for commercial purpose. Even if, it is accepted that pursuant to the allotment order of the year 1950, the disputed accommodation was allotted for commercial purpose, the user of the building at the time of filing of the release application would be relevant. The release application has been filed in the year 1996 i.e. after a period of 46 years of allotment. The appellate court has erred in placing reliance upon the allotment order of the year 1950 to arrive at the conclusion of the user of the accommodation for commercial purpose. The character of the disputed accommodation would depend upon the nature of its use at the time of filing of the release application. There is no categorical finding of both the courts below regarding the user of the disputed accommodation at the time of filing of the release application. The "Panchashala" for the year 1987-92 has wrongly been rejected on the ground that the entry of one year would not be relevant for deciding the nature of the disputed accommodation. 15. In the case of Dharmendra Pal Permi vs. VI Additional District Judge, Muzaffarnagar and others reported in 2007 (3) ARC 493, this court has held in paragraph 6' as under: - "6. Exactly same thing was said in the notice, copy of which is Annexure 1' to the writ petition. Thereafter tenant filed written statement and pleaded bar of the aforesaid proviso. Thereupon landlord got the release application amended. Appellate Court held that it was proved that initially property in dispute was let out for business purposes to Sardari and thereafter it was let out to the petitioner for the same purpose. Appellate Court observed that in the written statement it was not stated that building in dispute was taken only for residence. In fact in the original release application landlord had admitted that it was let out for residence hence there was no need to emphasize upon the word only by the tenant in his written statement. Appellate Court found that in 1975 property was given to the petitioner for repairing the ornaments. Thereafter in one room he started residing and thereafter in 1982 he obtained shop in another locality and started using the entire accommodation in dispute for residence. Appellate Court found that in 1975 property was given to the petitioner for repairing the ornaments. Thereafter in one room he started residing and thereafter in 1982 he obtained shop in another locality and started using the entire accommodation in dispute for residence. Appellate Court did not observe anywhere that property in dispute was not suitable for residence. It was admitted that since 1982 entire property was being used for residence. Release application was filed in 1986. The words used in the aforesaid proviso are "residential building". If admittedly tenant was residing at the time of filing of the release application then the building was residential. It was nowhere stated in the release application even after amendment that building was not residential. The only thing which was stated was that it was not taken for repairing the ornament. Even if in a residential building some commercial activity is carried out still it retains the character and form of residential building." 16. Admittedly, only two rooms existing in the Premise No. 11/37-A are in possession of the petitioner. The Court below is required to determine the nature of the accommodation in question on the date of filing of the release application. As there is no definite finding on this issue, the matter requires remittal. The order of release of the disputed accommodation passed by both the Courts below, therefore, cannot be sustained and are hereby quashed. However, the release application is pending for approximately more than 19 years, this Court is, therefore, of the opinion that remand to the trial court would further protract the litigation. 17. The matter is, therefore, remitted to the appellate court to decide the issue of user of the disputed accommodation at the time of filing of the release application. 18. The question as to whether the release application was barred by Clause (ii) of third proviso to Section 21(1)(a) of U.P. Act No. 13 of 1972 would depend upon the finding regarding the dominant user of the disputed accommodation, to be arrived at on the basis of evidence on record. 19. A fresh finding be also recorded on the bonafide need of the applicant-landlord and comparative hardship of both the parties. 20. 19. A fresh finding be also recorded on the bonafide need of the applicant-landlord and comparative hardship of both the parties. 20. It is further directed that the appellate court shall make an endeavour to decide the appeal at the earliest preferably within a period of four months from the date of submission of certified copy of this order. 21. With the above directions, the writ petition is disposed of.