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2018 DIGILAW 2597 (ALL)

Ramesh Kumar v. Pradeep Kumar Alias Kallu

2018-12-21

SIDDHARTHA VARMA

body2018
JUDGMENT : Siddhartha Varma, J. 1. The petitioners are tenants of a shop situate in House No. SA -1/96, Mohalla Pandeypur, Kharuji, City Varanasi, and the respondent is the landlord of that very shop. The landlord/respondent filed a Release Application which was allowed on 22.7.2017 and the Appeal filed by the tenant was dismissed on 31.7.2018. Aggrieved thereof, the instant writ petition has been filed. 2. The Release Application was filed by the landlord stating that he genuinely and bonafidely required the shop in question to settle his son. However, the tenants had opposed the Release Application stating that there was no bonafide need of the landlord and had also stated that the building in question was exempted from the operation of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, inasmuch as after the shop was let out to their father Govind Ram Bhatiya in the year 1980, the shop and the building in which the shop was situate had undergone such additions that the existing building had become a minor part of the bigger building and, therefore, the tenanted accommodation had to be treated to have been constructed on the date when the bigger building had come into existence. In addition to the fact that the building was exempted from the operation of the U.P. Act No. 13 of 1972, the tenants also stated that the shop was not bonafidely needed by the landlord and that no affidavit to that effect had been filed by the son of the landlord for whose need the shop was being sought to be released. 3. The Prescribed Authority allowed the Release Application but did not address to the question as to whether the premises in which the tenant had his shop was exempted from the operation of the U.P. Act No. 13 of 1972. The Appellate Court, however, looked into this plea of the tenants that the accommodation was to be exempted from the operation of the U.P. Act No. 13 of 1972 but turned it down and also upheld the findings of the Trial Court that the accommodation was genuinely and bonafidely required by the landlord. The question of comparative hardship was also dealt with and was answered in favour of the landlord by both the Courts below. 4. The question of comparative hardship was also dealt with and was answered in favour of the landlord by both the Courts below. 4. Learned counsel for the petitioners submitted that the property was exempted from the operation of U.P. Act 13 of 1972 and to bolster his submissions drew the attention of the Court to certain provisions of U.P. Act 13 of 1972. They were sections 3(i), 3(n) and explanation I(c) to Section 2. As the learned counsel for the petitioner had read out these provisions, the same are being reproduced here as under:- Section 3(i):-“Building”, means a residential or nonresidential roofed structure and includes – (i) any land (including any garden), garages and out-houses, appurtenant to such building' (ii) any furniture supplied by the landlord for use in such building; (iii) any fittings and fixtures affixed to such building for the more beneficial enjoyment thereof; Section 3(n):-“Improvement” in relation to a building, means any addition to it or alteration thereof or the provision of any new amenity to the tenant and includes all repairs made in any year the cost whereof exceeds the amount of two months' rent thereof; Explanation I(c) of Section 2:-where such substantial addition is made to an existing building that the existing building becomes only a minor part thereof the whole of the building including the existing building shall be deemed to be constructed on the date of completion of the said addition; 5. Taking recourse to these provisions of the U.P. Act No. 13 of 1972, the petitioners submitted that since the accommodation in question was rented in the year 1980 to Govind Ram Bhatiya and, thereafter, had undergone such changes that the Municipality had fixed its annual assessment to Rs. 43,076/-, the additions made to the existing buildings, could be safely concluded, were of such magnitude that the existing building became only a minor part of the whole building and, therefore, it would be deemed that the shop in question was constructed on the date when the additions were made to the already existing building. 6. 43,076/-, the additions made to the existing buildings, could be safely concluded, were of such magnitude that the existing building became only a minor part of the whole building and, therefore, it would be deemed that the shop in question was constructed on the date when the additions were made to the already existing building. 6. Learned counsel for the petitioner also relied upon 2007 (69) ALR 477 (Smt. Mundri Lal vs. Smt. Sushila Rani and another) and submitted that when a new assessment was made in the year 2007 and there was a vast difference in the amount of tax payable before and after the renovation/reconstruction then it would be deemed that the new construction shall be a new one and the building would be deemed to have been constructed on the date of fresh assessment and, therefore, the building may be exempted from the operation of the Act. Learned counsel further made the Court go through the Appellate Court's judgment and submitted that the Appellate Court had not arrived at any finding as to what was the consequence of the fresh assessment of the year 2007. 7. With regard to the needs of the landlord, the counsel for the respondent submitted that the need set up by the landlord was neither genuine nor bonafide as it was only a desire of the landlord to set up his son and he submitted that the son also did not file any affidavit to show his intention to do the business. In this regard, learned counsel for the petitioners relied upon 2017 (1) ARC 23 (Bharat Bhatia vs. Uma Shankar and Another) and 2015 (2) ARC 228 (Rajesh Agarwal vs. Addl. District and Sessions Judge, Court No. 8, Lucknow and Ors.). 8. Learned counsel for the petitioners also submitted that nowhere in the Release Application was it mentioned by the landlord that in what manner he wanted to settle his son. In this regard, learned counsel relied upon Jokhan alias Sita Ram vs. VIth Addl. District Judge, Jaunpur and Ors reported in 2012 (3) ARC 486 . Regarding comparative hardship also learned counsel for the petitioners submitted that the petitioners no. 1, 2 and 4 were living separately and only the petitioner no. In this regard, learned counsel relied upon Jokhan alias Sita Ram vs. VIth Addl. District Judge, Jaunpur and Ors reported in 2012 (3) ARC 486 . Regarding comparative hardship also learned counsel for the petitioners submitted that the petitioners no. 1, 2 and 4 were living separately and only the petitioner no. 3 who was doing business from the shop in question would get affected and that his hardship would be greater than that of the landlord if he vacated the shop in question. 9. In reply, learned counsel for the respondents submitted that for no reason the tenant wanted to get the building exempted from the operation of the Act No. 13 of 1972. He submitted that only to bring to naught the proceedings which had progressed under the Rent Control Act, the petitioners were throughout pressing that the premises were exempted from the Rent Control Act. 10. Learned counsel for the respondent/landlord submitted that if the Will of the year 1966 by which the premises in question devolved upon the landlord was seen then it would become clear that on 1.9.1966, the day when the Will was drawn out a building which was existing as of today was there even on that date. He submitted that there was nothing in the current building which could make the building transform to such an extent that the shop in question could become only a minor part of the changed building. It could definitely not be said that the building was transformed to such an extent that it had become a different building altogether. 11. Learned counsel further submitted that the shop in question was never demolished and that ever since tenancy commenced in the year 1980 vis-a-vis the father of the tenants, the shop had always been in their possession and not for even a single moment the tenants moved out from the premises in question so that the shop could be repaired etc. and thus he submitted that the shop in question would be presumed to be in existence from before 1966. 12. and thus he submitted that the shop in question would be presumed to be in existence from before 1966. 12. Learned counsel for the respondents further pointed out to Section 3(f) of U.P. Act 13 of 1972 and, therefore, the same is being reproduced here as under:- Section 3(f):-“assessment” in relation to a building, means the assessment or proportionate assessment, as the case may be, of the letting value thereof by the Local Authority having jurisdiction and “assessed” shall be construed accordingly; 13. Referring to the above section the learned counsel submitted that the assessment in relation to a building only quantified the letting value of the building by the local authority having jurisdiction over the building concerned. Therefore, he submitted that the mere fact that in year 2006, either because of the revision in the assessment or because of certain improvements in the building, the rental value was increased to Rs. 43,076/- would not mean that a new building had come up. 14. Learned counsel for the respondents further submitted that in view of 2013 (97) ALR 817 (Suresh Chand Sharma vs. Nand Kumar Kamal), it was not essential for the landlord or his son to submit affidavits separately to show the son's requirement. Relying upon the said Judgment which itself is based on various Judgments of the Supreme Court, learned counsel submitted that the right of a landlord to judge his requirement cannot be controlled by any third person, namely, a tenant or even the Court. He submitted that the law is well settled that it is for the landlord to decide as to how and in what manner he would live. Learned counsel also relied upon the Supreme Court Judgment reported in 2008 (2) SCC 144 (Yadvendra Arya vs. Mukesh Kumar Gupta) that the landlord is the best judge of his requirement. 15. Learned counsel further submitted that the findings arrived at by the Courts below could not be interfered with by this Court, unless it was shown that there was some perversity in the judgment of the Courts below and/or that certain important aspect of the case had not been dealt with properly. 16. 15. Learned counsel further submitted that the findings arrived at by the Courts below could not be interfered with by this Court, unless it was shown that there was some perversity in the judgment of the Courts below and/or that certain important aspect of the case had not been dealt with properly. 16. Having heard the learned counsel for the parties, I am of the view that the submission of the learned counsel for the petitioners that there were changes in the building that the shop in question had become a minor part of the whole building and it had become unrecognizable is unsustainable. In the year 1966 when the Will was executed by the father of the landlord it gave out that the building was a two storeyed building. The father of the tenants had occupied the shop in 1980 and had continued to be a tenant during his life time and thereafter the petitioners had also never left the shop in question and, therefore, they had continued to remain in the shop ever since tenancy had commenced. 17. Further, I am of the view that the assessment of the annual rent would not mean that the building had been transformed into a new building. Only rental values had changed over a period of time. It was for the party which claimed exemption from the U.P. Act No. 13 of 1972 to have conclusively brought on record such facts to show that the tenanted shop had become only a minor part of the building which had undergone a substantial change/addition. 18. So far as the question of bonafide need of the landlord is concerned, the findings of the Courts below are sufficiently available to establish that the shop in question was bonafidely required by the landlord. No interference is required to be made in the findings of the two courts below. 19. Under such circumstances, the writ petition is devoid of merit and, is, accordingly, dismissed. 20. In the end, learned counsel for the petitioners/tenants prayed that they may be allowed some time to vacate the premises. To this request, learned counsel for the applicant-landlord had no objection. 21. 19. Under such circumstances, the writ petition is devoid of merit and, is, accordingly, dismissed. 20. In the end, learned counsel for the petitioners/tenants prayed that they may be allowed some time to vacate the premises. To this request, learned counsel for the applicant-landlord had no objection. 21. In such view of the matter, the applicants-tenants are granted time to vacate the premises in question, subject to their filing of an undertaking by them before the Court below, which would be as under : (1) The tenants-petitioners shall handover peaceful possession of the premises in question to the landlord-opposite party on or before 10.10.2019; (2) The tenants-petitioners shall file the undertaking before the Court below to the said effect within two weeks from the date of receipt of a certified copy of this order; (3) The tenants-petitioners shall pay damages at the rate they were paying the rent per month by seventh day of every succeeding month and continue to deposit the same in the Court below till 10.10.2019 or till the date they vacate the premises, whichever is earlier, and the landlord shall be at liberty to withdraw the said amount; (4) In the undertaking the tenants-petitioners shall also state that they would not create any interest in favour of any third party in the premises in dispute; (5) Subject to filing of the said undertaking, the tenants-petitioners shall not be evicted from the premises in question till the aforesaid period; (6) It is made clear that in case of default of any of the conditions mentioned herein-above, the protection granted by this Court shall stand vacated automatically; and (7) In case the premises is not vacated as per the undertaking given by the petitioners, they shall also be liable for contempt. 22. There shall be no order as to costs.