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2017 DIGILAW 1134 (ALL)

ANWAR ALAM v. RAISA BANO

2017-04-28

MANOJ MISRA

body2017
JUDGMENT Hon’ble Manoj Misra, J.—Heard learned counsel for the petitioner; Sri Ajay Kumar Chaurasia for the respondent; and perused the record. 2. The present petition has been filed challenging the orders dated 12.6.2012 and 31.3.2017 passed by the Prescribed Authority/Additional Chief Judicial Magistrate, Room No. 11, Allahabad in P.A. Case No. 82 of 2009 and Additional District Judge, Court No. 19, Allahabad in Rent Control Appeal No. 97 of 2012 respectively. 3. A perusal of the record would reveal that the landlady-respondent had filed an application under Section 21(1)(a) of the U.P. Act No. 13 of 1972 for release of the accommodation in dispute on the ground that she being an old lady residing with her husband at village Sikandra, desires to reside in the city with her daughter Zakia, who had been living in a tenanted accommodation, which would enable her to avail better medical facility available in the city. 4. The said release application was contested, inter alia, on the following grounds : (a) that Zakia was a married daughter and in fact she was not even daughter of the landlady because she was daughter of landlady’s sister and since there is no provision of adoption in Muslim Law, therefore, she cannot be considered to be a daughter and as such her need cannot be considered for the purpose of release; (b) that the premises in dispute though was earlier allotted to the landlady on lease by U.P. Awas Evam Vikas Parishad but the freehold deed was executed on 28.2.2008 therefore, the release application, which was filed within three years of acquisition of freehold rights, was hit by the proviso of Section 21(1)(a) of the U.P. Act No. 13 of 1972; and (c) that in the year 2003, an agreement for sale was entered into between landlady and the defendant-tenant for sale of the accommodation in dispute in connection with which a suit for specific performance had been instituted being Original Suit No. 52 of 2007, which was pending, and therefore it could be inferred that the real intention of the landlady was only to sell off the property and as such she had no bona fide need. 5. 5. Both the Courts below allowed the release application by holding that the desire of the landlady to live in the city with her daughter to avail better medical facility and to ensure that she is better looked after amounted to a bona fide need and, therefore, the validity of adoption was inconsequential. As regards validity of the proceeding in view of the bar imposed by the proviso to Section 21(1)(a) of the U.P. Act No. 13 of 1972, the Court below took the view that as already three years had passed before passing of the release order, the proviso would not come in the way of the Court to direct release of the accommodation and, in any case, the proviso applies to a new landlord. In addition to above, the Courts below found that the comparative hardship was also greater for the landlady because of her advanced age and more so because the defendant-tenant had not brought any material on record to show that during the pendency of the release application, any effort was made by him to search for an alternative accommodation. 6. Assailing the order passed by the Courts below, the learned counsel for the petitioner has submitted that a married daughter cannot be treated as a member of the family of the landlady under Section 3(g) of the U.P. Act No. 13 of 1972 and since there is no provision for adoption in Muslim Law the alleged daughter of the landlady would have no legal right of residence, hence her need could not have been taken into consideration for allowing the release application. It is thus the case of the petitioner that the Courts below have committed manifest error of law by taking the need of a married daughter, and that too adopted, into account. It was also contended that since the freehold deed of the accommodation in dispute was executed on 28.3.2008 and the release application was filed on 1.12.2009, that is within three years from the date of purchase, the same was liable to be rejected in view of the proviso to Section 21(1) of the U.P. Act No. 13 of 1972. 7. Learned counsel for the respondent has supported the judgment and order passed by the Courts below. 8. I have given thoughtful consideration to the submissions of the learned counsel for the parties and have carefully perused the record. 9. 7. Learned counsel for the respondent has supported the judgment and order passed by the Courts below. 8. I have given thoughtful consideration to the submissions of the learned counsel for the parties and have carefully perused the record. 9. In so far as the contention that the need of a married daughter could not be taken into consideration for ascertaining whether the landlady had bona fide need for the accommodation or not, suffice to say that the need set up in the release application was a composite need. The release was sought not merely to provide residence to her daughter, who was living in a tenanted accommodation but for the landlady as well as her husband, who were old persons, to reside in the city with their daughter, in their old age, to avail better facilities including medical available in the city. 10. It was landlady’s specific case that except for the accommodation in dispute she had no other accommodation in the city and therefore she bona fide required the accommodation in dispute. There is no specific challenge to the claim of the landlady that she has no alternative accommodation in the city. Under the circumstances, the need disclosed was not merely to benefit her married daughter but was her own personal need. It is a matter of common knowledge that old parents have a desire to live with their children to ensure that there old age blues are taken care of. Such a need cannot be said to be a frivolous desire or wish but has to be accepted as a bona fide need. Such need has been recognised as a bona fide need by the Apex Court in the case of Siddalingamma v. Mamtha Shenoy, 2001 (8) SCC 561 . Further, the Court below has found that the alleged daughter of the landlady, namely, Zakia, was shown as daughter of the landlady in her high school certificate, which was obtained much prior to the filing of the release application, suggesting that Zakia had been treated as daughter by the landlady since much before the filing of release application and it was not a case where a false case was developed only for the purpose of seeking release. Accordingly, this Court is of the view that the finding returned by the Court below that the building was bona fide required by the landlady for her stay in the city with her daughter is not liable to be interfered with. 11. The contention of the learned counsel for the petitioner that since an agrement for sale dated 29.6.2003 was entered into by the landlady in favour of the defendant-tenant therefore there could be no need for the premises in dispute, cannot be accepted because first of all the agreement for sale was unregistered (vide paragraph No. 15 of the written statement, at page 34 of the paper book) and as such inadmissible in evidence and, secondly, the agreement is of the year 2003 whereas the release application was filed in the year 2009 i.e. after six years of the agreement, therefore, with passage of time, the need had arisen and as such the said agreement for sale could not be made a ground on which adverse inference could be drawn in respect of the need of the landlady. 12. The third submission of the learned counsel for the petitioner that since freehold deed was executed in the year 2008, therefore, the release application could not have been filed in the year 2009, in view of the bar put by the proviso to sub-section (1) of Section 21 of the U.P. Act No. 13 of 1972, cannot be accepted for the reasons given below. 13. It is noteworthy that U.P. Act No. 13 of 1972 is applicable to a building. Landlord, in relation to a building, is a person to whom its rent is or if the building were let, would be, payable (Section 3(j)). Tenant, in relation to a building, means a person by whom its rent is payable (Section 3(a)). By acquisition of freehold rights, the right of the landlord gets augmented and is thereafter not subservient to any superior title but qua the tenant of the building the landlord remains the same because earlier also the rent was payable to him and after acquisition of freehold right also rent remains payable to him only. The object of the proviso to sub-section (1) of Section 21 of the U.P. Act is to prevent transfers by landlords as a device to enable the purchasers to evict the tenants from the premises let out to them. The object of the proviso to sub-section (1) of Section 21 of the U.P. Act is to prevent transfers by landlords as a device to enable the purchasers to evict the tenants from the premises let out to them. If a landlord was unable to make out a case for evicting his tenant under Section 21(1)(a), it was not unlikely that he may think of transferring the premises to a purchaser who would be able to make out such a case on his own behalf, therefore, the legislature thought to introduce the proviso to ensure that such a course be not adopted. 14. The Apex Court in V.N. Sarin v. Ajit Kumar Poplai, AIR 1966 SC 432 , had the occasion to interpret the restriction placed by Section 14(6) of the Delhi Rent Control Act, 1958 on purchaser’s right to claim eviction of tenant on ground of bona fide need. Interpreting the said provision, the Apex Court held that the object which the provision intended to achieve is to prevent transfers by landlords as a device to enable the purchasers to evict the tenants, from the premises let out to them. The Apex Court held that what Section 14(6) provides is that the purchaser should acquire the premises by transfer and that necessarily assumes that the title to the property which the purchaser acquires by transfer did not rest in him prior to such transfer. With that reasoning, the Apex Court held that a co-parcener getting exclusive right upon partition in respect of the accommodation earlier owned by undivided family will not qualify as a transferee having regard to the object intended to be achieved by the said provision and, therefore, would not have to face restriction imposed by the said provision. The view taken by the Apex Court has been followed by this Court in Smt. Ranjana Devi @ Sirro and others v. VIIth ADJ, Moradabad, 1999 (35) ALR 563. 15. The view taken by the Apex Court has been followed by this Court in Smt. Ranjana Devi @ Sirro and others v. VIIth ADJ, Moradabad, 1999 (35) ALR 563. 15. Having regard to the object intended to be achieved by the proviso and the view expressed by the Apex Court in V.N. Sarin’s case (supra), this Court is of the view that since obtaining of freehold rights by the landlady has not created any fresh jural relationship of landlord and tenant between the landlady and the tenant petitioner, the proviso was not applicable, because the proviso would be applicable in a case where there is change of landlord on account of transfer. 16. Even otherwise, the prohibition imposed by the proviso is not in respect of filing of release application but in respect of entertaining the same within three years from the date of such purchase. In the instant case, the release application though was filed within three years of acquiring freehold rights but the release order was passed in the year 2012 i.e. after three years and therefore in any view of the matter, keeping in mind the Apex Court’s decision in Martin Harris Ltd. v. Additional District Judge and others, 1998 (1) SCC 732 , the release order would not be illegal for the aforesaid reason. 17. In view of the discussion made above, this Court finds no good reason to interfere with the orders passed by the Courts below. Accordingly, the prayer of the petitioner to set aside the impugned orders is hereby rejected. 18. At this stage, learned counsel for the petitioner prayed for some time to vacate the premises. 19. Considering the facts and circumstances, this Court is of the view that the interest of justice would be served if the petitioner is allowed time up to 31st August, 2017 to vacate the premises and handover possession to the landlord-respondent by then. 20. At this stage, learned counsel for the petitioner prayed for some time to vacate the premises. 19. Considering the facts and circumstances, this Court is of the view that the interest of justice would be served if the petitioner is allowed time up to 31st August, 2017 to vacate the premises and handover possession to the landlord-respondent by then. 20. Accordingly, this petition is disposed of by affirming the judgment and orders passed by the Courts below subject to the observation that for a period up to 31st August, 2017, the petitioner shall not be evicted from the premises in dispute pursuant to the release order provided the petitioner by 31st May, 2017 furnishes an undertaking alongwith an affidavit in the Court of Prescribed Authority, Allahabad that he shall handover vacant and peaceful possession of the premises in question to the landlady-respondent on 01st September, 2017. In addition to above, he shall, by 31st May, 2017, deposit the entire admitted rent payable up to 31st August 2017 in the Court of Prescribed Authority, which the landlady would be entitled to withdraw. 21. It is made clear that if by 31st May, 2017 the aforesaid undertaking is not furnished before the Court of Prescribed Authority, Allahabad or the rent as indicated above is not deposited, then the release order shall become executable forthwith. It is also made clear that if by 01st September, 2017 the petitioner fails to handover vacant and peaceful possession of the premises in question to the landlady-respondent despite undertaking, it would not only be open to the landlady-respondent to execute the release order but she may also initiate proceeding against the petitioner for contempt of Court.