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2018 DIGILAW 1124 (ALL)

MUKUND MURARI GUPTA v. IRFAN (IRFAN AHMAD KIDWAI)

2018-05-04

MAHENDRA DAYAL

body2018
JUDGMENT : Mahendra Dayal, J. This writ petition has been filed by the petitioners feeling aggrieved by the order of the prescribed authority dated 26.09.2008 passed in Rent Control case No.6 of 1999 and the judgment and order dated 27.09.2006 passed in Rent Appeal No.14 of 2008. The release application of the petitioners filed against the opposite parties was rejected by the prescribed authority and the appeal filed by the petitioners was also dismissed. 2. Writ Petition No.113 (R/C) of 2007 has been filed by the tenant for setting aside the order dated 15.05.2007 passed in Rent Appeal No.69 of 2007 as well as the order dated 27.09.2006 passed in Eviction Case No.6 of 1999. 3. The petitioners of writ petition No.19 of 2010 sought release of the house, situated in Mohalla Nai Basti, District Lakhimpur. It was said that the tenants were occupying the ground floor and first floor of the house. The petitioner no.1 was in government service and retired on 31.03.1988 from the post of Chief Medical Superintendent, G.S.V.M. Medical College, Kanpur. After his retirement, he had to vacate the official residence allotted to him and therefore he started living with his nephew at Lucknow. It was also said that he had no other house of his own in District Lakhimpur except the house in occupation of the tenants. It was also said that the landlord petitioner wanted to live in their ancestral house after the same is vacated and the petitioner no.1 wanted to start his own private clinic. The petitioners made requests to the tenants to vacate the house in their possession but they refused to do so and therefore necessity to file application for release arose. 4. The tenants-respondents contested the release application and filed their written statement. It was mainly said that the petitioner no.1 had not set up his personal need and therefore the release application was not maintainable. It was also said that the landlords had taken possession of almost half of the house by getting it vacated from the tenants. It was also said that the respondents do not belong to the same family and therefore the release application against them was not maintainable. The petitioner no.1 after retirement had taken house No.C-1102 Sector A, Mahanagar, Lucknow and had been living with his family at Lucknow. It was also said that the respondents do not belong to the same family and therefore the release application against them was not maintainable. The petitioner no.1 after retirement had taken house No.C-1102 Sector A, Mahanagar, Lucknow and had been living with his family at Lucknow. He had also established a hospital near ITI and therefore he had no need of the premises in their occupation. The petitioners did not apply for release prior to retirement and after retirement, their application was not maintainable in view of the provision of Section 21(1-A) of U.P. Act No.XIII of 1972. 5. The learned prescribed authority framed two points of determination and after considering the evidence of the parties, came to the conclusion that the petitioners had no bonafide need of the disputed premises. While deciding point no.2, the learned prescribed authority recorded a finding that in case the respondents-tenants are asked to vacate house in their tenancy, they would suffer greater hardship. With these findings, the release application was dismissed. 6. The petitioners feeling aggrieved by the order of the prescribed authority, preferred Rent Appeal No.14 of 2008 which was also dismissed on 23.10.2009 and the findings recorded by the prescribed authority were confirmed. 7. The main question to be considered by this Court is as to whether the petitioners after retirement and after vacating the official residence, could maintain an application for release under Section 21(1-A) of U.P. Act No.XIII of 1972. This provision for release of house is a special provision enacted for the benefit of those landlords who were in government service and who were in occupation of government accommodation and had to vacate the same after retirement. The provision of Section 21(1-A) of U.P. Act No.XIII of 1972 is reproduced as under:- [(1-A) Notwithstanding anything contained in Section 2, the Prescribed Authority shall, on the application of a landlord in that behalf, order the eviction of a tenant from any building under tenancy, if it is satisfied that the landlord of such building was in occupation of a public building for residential purposes which he had to vacate on account of the cessation of his employment. Provided that an application under this sub-section may also be given by a landlord in occupation of such public building at any time within a period of one year before the expected date of cessation of his employment, but the order of eviction on such application shall take effect only on the date of his actual cessation.] 8. A bare perusal of this provision indicates that it has been enacted for the benefit of those landlords who were in occupation of a public building and after retirement, they had to vacate the said public building. The learned courts below have considered the application of the petitioners only on the ground of bonafide need while the application filed by the petitioner was under both the provisions. A copy of the release application is on record and a perusal thereof makes it clear that the petitioners applied for release under Section 21(1)(a) and Section 21(1-A) of U.P. Act No.XIII of 1972. In paragraph-3 of the release application, it was mentioned that the petitioner no.1 was in government service and had retired on 31.03.1988. He had to vacate his official residence after his retirement and since he had no accommodation at Lakhimpur, therefore, he started living with his nephew at Lucknow. The release application was filed by the petitioners on 19.08.1999 i.e. after about one and half years of the retirement. The question is, as to whether a landlord having government accommodation, can maintain an application for release under the special provision of Section 21(1-A) of U.P. Act No.XIII of 1972 after he had vacated the government accommodation. It is provided in sub-section (1-A) that an application under this sub-section may also be given by a landlord in occupation of public building at any time within a period of one year before the expected date of cessation of his employment but the order of eviction on such application shall take effect only on the date of his actual cessation. This provision gives liberty to the landlord to apply for release even before his retirement but it is provided that the release order would be effective only from the date of his retirement and not prior to that. This restriction has been imposed probably because of the fact that a landlord may not get the tenanted premises vacated even before his retirement. 9. This restriction has been imposed probably because of the fact that a landlord may not get the tenanted premises vacated even before his retirement. 9. The submission of Sri Shafiq Mirza learned counsel for the petitioners is that since the legislature has given liberty to the landlord to move application for release even before retirement, therefore, there is no doubt that an application for release under this special provision can be made even after retirement. 10. The learned counsel for the petitioners has relied upon a decision of a Division Bench of this Court reported in 1982 ARC page 363. In this case, this Court while considering the similar controversy has observed that Section 21(1-A) of U.P. Act No.XIII of 1972 is a special provision enacted for the benefit of such landlords who were in occupation of official residence and which they had to vacate in consequence of cessation of their employment. The landlord in such cases becomes entitled to the release of accommodation as a matter of course. The landlord can invoke this provision only if he does not already have in his possession an accommodation which he can occupy in his own right after vacating the public building allotted to him. It has also been made clear that a temporary occupation by a landlord, which he cannot use as of right? cannot exclude the application of that provision. The submission of the learned counsel for the petitioners is that the residence in which the petitioners were residing after retirement, did not belong to them, but they were living therein at the mercy of nephew of the petitioner no.1. The opposite parties have failed to show that the petitioners had any other accommodation in District Lakhimpur and, therefore, the release application filed by the petitioners was maintainable. 11. In another case relied upon by the petitioners, is a judgment rendered by a Co-ordinate Bench of this Court in the case of Shanti Devi and others Vs. Shyam Nath Nagar and others. In this case also the landlord sought relief under Section 21(1-A) of U.P. Act No.XIII of 1972 after he retired from the service and vacated the government accommodation. The application of the landlord was found maintainable. Shyam Nath Nagar and others. In this case also the landlord sought relief under Section 21(1-A) of U.P. Act No.XIII of 1972 after he retired from the service and vacated the government accommodation. The application of the landlord was found maintainable. Thus, it is now well settled that a landlord seeking relief under Section 21(1-A) of U.P. Act No.XIII of 1972 can move application for release under this special provision, even after his retirement and after vacation of the public building in his occupation. The courts below admittedly did not deal with this important aspect of the matter and considered the release application only under Section 21(1)(a) of U.P. Act No.XIII of 1972. 12. It has further been argued by the learned counsel for the petitioners that even if the application of the petitioners is considered under Section 21(1)(a) of U.P. Act No.XIII of 1972, the petitioners had been able to prove their bonafide need because they did not have any other accommodation in the city of Lakhimpur Kheri. The learned prescribed authority had rejected the release application only on the ground that since the petitioner no.1 was residing at Lucknow and was running a clinic, therefore, he had no need of the accommodation in occupation of the respondents. The same finding has been affirmed by the appellate court. 13. The submission on behalf of the petitioners is that even if the petitioner no.1 was residing at Lucknow and was running a clinic, the same would not defeat his claim for release of the disputed accommodation because admittedly the petitioners belong to Lakhimpur and the need established by the petitioners was that the petitioner no.1, after retirement, wanted to open a clinic at Lakhimpur, so that he may continue with the medical profession. It has also been argued by the learned counsel for the petitioners that the proceedings for release are pending since 1999 and the respondents-tenants instead of taking another accommodation for their residence, had been continuously contesting the release application of the petitioners on one ground or the other. This conduct of the respondents-tenants shows that they somehow want to occupy the accommodation in their tenancy defeating the claim of the petitioners. According to the petitioners, even if it is assumed that the petitioner no.1 has accommodation at Lucknow, he is the best judge of his need for residential or business purposes. This conduct of the respondents-tenants shows that they somehow want to occupy the accommodation in their tenancy defeating the claim of the petitioners. According to the petitioners, even if it is assumed that the petitioner no.1 has accommodation at Lucknow, he is the best judge of his need for residential or business purposes. This law is well settled that a tenant cannot dictate his landlord to live at a particular place against his wishes. 14. The learned counsel for the petitioners has relied upon a judgment of this Court reported in 2007 (25) LCD page 306. In this case, it has been held that as soon as the landlord files release application against the landlord, it is obligatory on the part of the tenant to make efforts to search out alternative accommodation. Failure on the part of the tenant to search out any alternative accommodation, is to be treated adversely. If the tenant has failed to make any effort to search for alternative accommodation, he is not entitled for comparison of hardship. This view has been expressed by this Court in the case of Ram Raj Vs. Ist ADJ, 2010 2 ARC 54. 15. The learned counsel for the respondents has, on the other hand, submitted that the landlords somehow want to get the house vacated but in fact they have no need at all because since retirement in the year 1998, the petitioner no.1 is residing at Lucknow with his family. If he had any need of the disputed premises for his occupation, he should have filed the release application before his retirement because the law gives liberty to such landlord to apply for release prior to one year of the date of retirement, but the petitioner no.1 preferred the release application after about one and half years from the retirement. The benefit of Section 21(1-A) of U.P. Act No.XIII of 1972, therefore, cannot be given to the petitioners. With regard to the bonafide need and comparative hardship, the submission on behalf of the respondents is that there is concurrent finding of both the courts below that the petitioners failed to prove their bonafide need and this finding of fact cannot be disturbed in the writ jurisdiction because the petitioners have failed to indicate any perversity in the findings recorded by the courts below. The writ petition filed by the petitioners is, therefore, liable to be dismissed. 16. The writ petition filed by the petitioners is, therefore, liable to be dismissed. 16. Having heard the learned counsel for the parties and having gone through the pleadings as well as the law on the subject, I find that the petitioners applied for release of the building in question under both the provisions i.e. under Section 21(1)(a) as well as under Section 21(1-A) of U.P. Act No.XIII of 1972. A perusal of the impugned judgment and order clearly shows that both the courts below considered the release application only on the ground of bonafide need and did not deal the application under Section 21(1-A) of U.P. Act No.XIII of 1972. The courts below have only considered that after retirement the petitioners started living at Lucknow and, therefore, they had no need of the accommodation at Lakhimpur. 17. Under the provision of Section 21(1-A) of U.P. Act No.XIII of 1972, the prescribed authority is not required to consider the bonafide need of the landlord. The only requirement for attracting this provision is that the landlord must be in government service and he must have been occupying a public building, which he had to vacate after retirement. If these requirements are fulfilled, the prescribed authority cannot go into the question to decide bonafide need. The tenants in such cases cannot raise any defence that the landlord had no need. 18. Since the courts below have not considered the release of the accommodation under this special provision of Section 21(1-A) of U.P. Act No.XIII of 1972, therefore, I find it proper to remit the matter back to the prescribed authority to consider the release application of the petitioners under Section 21(1-A) of U.P. Act No.XIII of 1972 as well and decide the same in accordance with law. 19. Writ Petition No.113 (R/C) of 2007 has been filed for quashing of the order dated 15.05.2007 passed in case No.69 of 2007 as well as the order dated 27.09.2006 passed in rent case No.6 of 1999. 20. During the pendency of the rent case, an application was moved by the petitioners that after the death of Wazahat Ali, the petitioners were his legal heirs and representatives, upon which the court allowed the amendment. 20. During the pendency of the rent case, an application was moved by the petitioners that after the death of Wazahat Ali, the petitioners were his legal heirs and representatives, upon which the court allowed the amendment. Subsequently, an application was moved by Nazma Khatoon and others claiming themselves to be the legal heirs which was rejected on the ground that those pleas could be taken in the written statement also. Feeling aggrieved by the aforesaid order, Nazma Khatoon preferred writ petition No.145 (R/C) of 2004 which was dismissed. It was also directed that after the death of the original tenant Wazahat Ali, his legal heirs and representatives be made parties. 21. This application was opposed by the respondents. The learned trial court rejected the application preferred by the petitioners on the ground that the application of the petitioners was misconceived and was not maintainable. 22. The revision filed by the petitioners was also dismissed by the District Judge, Lakhimpur Kheri on 15.05.2007. 23. It has been contended by the learned counsel for the petitioners that both the courts below have committed manifest error of law in rejecting their claim holding that the provision of Section 115 CPC was not applicable. The petitioners are the legal heirs and the representatives of the deceased tenant Wazahat Ali. 24. Having gone through the pleadings and the record, I find that the claim of the petitioners for being substituted as legal heirs of the deceased tenant, was misconceived because the application was moved by them at a very be lated stage after the matter of substitution was decided. The Hon'ble High Court also declined to interfere with the orders dated 19.03.2004 and 27.04.2004. The claim of the petitioners for being substituted, was barred by limitation and no ground was shown by them as to why they did not prefer their claim within time. 25. The learned courts below have rightly rejected the claim of the petitioners for being substituted in place of the deceased tenant. I, therefore, do not find any force in this petition. It is accordingly dismissed. 26. In the result, Writ Petition No.19 (R/C) of 2010 is allowed and the impugned judgment and order dated 23.10.2009 passed by Additional District Judge, Lakhimpur Kheri and the order dated 26.09.2008 passed by the prescribed authority are set aside. I, therefore, do not find any force in this petition. It is accordingly dismissed. 26. In the result, Writ Petition No.19 (R/C) of 2010 is allowed and the impugned judgment and order dated 23.10.2009 passed by Additional District Judge, Lakhimpur Kheri and the order dated 26.09.2008 passed by the prescribed authority are set aside. The matter is remitted back to the prescribed authority to decide the same again in the light of observations and directions made by this Court in accordance with law. Since the matter is very old, therefore, the prescribed authority is directed to decide the same preferably within period of six months, from the date of receiving a certified copy of this order.