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2018 DIGILAW 709 (ALL)

Leelawati Kanaujia v. Additional District Judge

2018-03-23

MAHENDRA DAYAL

body2018
JUDGMENT AND ORDER : 1. The tenant-petitioners have filed this writ petition for setting aside the judgment and order dated 18.02.2016 passed by Additional District Judge/Special Judge P.C. Act-II Lucknow, in Rent Appeal No. 48 of 2014 and the judgment and order dated 08.05.2014 passed by Prescribed Authority/II-Additional Judge Small Causes, Lucknow in P.A. Case No. 50 of 2001. 2. I have heard Sri Ram Karan Agrawal learned counsel for the petitioners and Sri Madhur Kant Srivastava learned counsel for private respondent no. 3 and also perused the record. 3. The brief facts of the case are that the private respondent no. 3, claiming himself to be the owner of house no. 710 situated at Azad Mohal, Sadar Bazar Cant. Lucknow, filed a suit for eviction and recovery of arrears of rent against the petitioners. It was said that the house No. 398, in which the private respondent was residing, was owned by one Murli Dhar Gupta, the grand father of the private respondent who had four sons. After the death of Murli Dhar Gupta, the house in dispute was divided into four parts and the partition wall was raised to divide the respective shares of all the aforesaid house. The father of the private respondent no. 3 enjoyed the right of one fourth portion of the house as absolute owner thereof till his life time and after his death in the year 1983, the private respondent and his brother Virendra Nath Gupta inherited half share each in the said one fourth of their father. They further divided their half share by means of mutual family settlement and the portion in the tenancy of the petitioners was given to the private respondent. The area of the share of the private respondent is only 250 sq. ft. 4. The private respondent is the owner of another house No. 710 which is situated at Azad Mohal, Sadar Bazar, Lucknow in which the petitioners are tenant. This house was originally let out to Kallu on a monthly rent of rupees ten but after his death, the tenancy devolved upon the petitioners. The private respondent sought release of the house in occupation of the petitioners on the ground that he had a wife, two children and mother in his family and as such the accommodation in his occupation which is only 250 sq. ft. was quite insufficient and he needed additional accommodation. The private respondent sought release of the house in occupation of the petitioners on the ground that he had a wife, two children and mother in his family and as such the accommodation in his occupation which is only 250 sq. ft. was quite insufficient and he needed additional accommodation. It was also said that the private respondent had four sisters who are married but they frequently visit to house with family but due to shortage of accommodation, they cannot live comfortably. It was also pleaded by the private respondent that after the death of original tenant Kallu, the petitioners no. 2 and 3 shifted there and since then they had been occupying the said house but since they were not residing with their deceased father at the time of his death, therefore, the tenancy was not devolved upon them; and their need could not be considered. It was also said that the house in the tenancy of the petitioners was an old structure and had become dilapidated and it also lost its value and utility due to its old age. The house was, therefore, required for demolition and reconstruction. The private respondent prayed for release of the house in occupation of the petitioners, as provided under Section 21 of U.P. Act No. 13 of 1972. 5. The petitioners filed their written statement and it was said by them that Late Kallu was tenant in the house at the rate of rupees ten per month. He died on 04. 12. 1997 and after his death, all the petitioners inherited the tenancy. It was also said that Late Kallu was always regular in payment of rent but after sometime, the father of the private respondent refused to accept the rent and therefore, the rent was deposited in the court. After the death of Kallu, the petitioners no. 2 and 3 tried to give rent but the private respondent refused to accept the rent and there upon again the rent was deposited in the court. In the meantime, a notice dated 27.08.2000 was received by the petitioners, informing them about the family partition but no deed of partition was enclosed with the notice. The notice was received by the petitioners but by that time the rent was already deposited in the court till December 2000. Thereafter another notice was received by the petitioners alongwith deed of partition which was duly replied. The notice was received by the petitioners but by that time the rent was already deposited in the court till December 2000. Thereafter another notice was received by the petitioners alongwith deed of partition which was duly replied. It was also pleaded by the petitioners that apart from the petitioners, their wife and children also reside in the same house. It was denied that the house in occupation of the private respondent was only 250 Sq. ft. In fact, the entire house was a four storeyed a big house in which sufficient accommodation was available for the private respondent. It was also pleaded that the private respondent had no need of the house in their occupation. In case, the petitioners are asked to vacate their house, they would suffer greater hardship because they had no other accommodation in the city of Lucknow. 6. The learned prescribed authority considered the pleadings and the evidence of the parties and by the order dated 08.05.2014, allowed the release application of the private respondent and directed the petitioners to vacate the house in their occupation within sixty days. Feeling aggrieved by the aforesaid order of release, the petitioners preferred Rent Appeal No. 48 of 2014, which was also dismissed on 18.02.2016. 7. It has been contended by the learned counsel for the petitioners that the judgment and order passed by both the courts below is without jurisdiction because the house in question is situated in the cantonment area and U.P. Act No. 13 of 1972 was not applicable to the building. According to the learned counsel for the petitioners, the Parliament has enacted cantonment (Extension of Rent Control Laws) of Act, 1957 and under Section 3 thereof, power has been given to the Central Government to extend with restriction, modification, the provisions of laws relating to control of rent and eviction to the cantonment of the State. A notification has also been issued in this regard which specifically provides that the said notification will not apply to any house which is or may be appropriate by the Central Government on lease under the Cantonments (House Accommodation) Act 1923. The notification is of the year 1903 and thus every house in Lucknow Cantonment is liable to be appropriated on lease under the Act. The notification is of the year 1903 and thus every house in Lucknow Cantonment is liable to be appropriated on lease under the Act. In view of this, both the judgments passed by the courts below are without jurisdiction and are liable to be set aside on this ground alone. It has also been argued that the courts have not considered the affidavit filed by the petitioners in support of their contentions. The courts also failed to consider that the private respondent no. 3 had sufficient accommodation for his family and his need was not bonafide. The petitioners sought amendment in their written statement by inserting plea of bar but their application was wrongly rejected. 8. The learned counsel for the petitioners has placed reliance upon a judgment of this Court rendered in Writ Petition No. 114 (R/C) of 1996 Smt. Sheela Agarwal vs. Smt. Malti and Others. In this case it has been held that for exemption from applicability of the Act, it is not necessary that the building should have earlier been appropriated by the Central Government or there should be some proposal for appropriation by the Central Government. The exemption is applicable even to the building within the Cantonment area which may be appropriated by the Central Government on lease under the Cantonment (House Accommodation) Act, 1923, meaning thereby if a building is subject to appropriation by the Central Government even then the building would be exempted from the purview of Act No. XIII of 1972 notwithstanding whether there was any appropriation earlier or there is any proposal for appropriation. 9. Another judgment upon which reliance has been placed, was rendered by this Court in Civil Revision No. 72 of 1998, K.C. Sharma vs. Kashi Nath Gupta. In this case also, it has been held that the house situated in Cantonment Lucknow is subject to appropriation by the Central Government and therefore would be exempted from the operation of U.P. Act No. 13 of 1972. Similar observation has been made in another case Writ Petition No. 3339 (R/C) of 1981 Smt. Bharat Lal and Others vs. Munna Lal. In this case also the controversy between the parties was as to whether the premises being situated within the area of Lucknow Cantonment was beyond the purview of U.P. Act No. 13 of 1972. Similar observation has been made in another case Writ Petition No. 3339 (R/C) of 1981 Smt. Bharat Lal and Others vs. Munna Lal. In this case also the controversy between the parties was as to whether the premises being situated within the area of Lucknow Cantonment was beyond the purview of U.P. Act No. 13 of 1972. The court after examining the various provisions of the Act, held that any building which is situated within the Cantonment Area and is open to appropriation by the Central Government on lease under the Cantonment Act, stands exempted from the purview of Rent Control Act. 10. It has been submitted by the learned counsel for the petitioners that under the provisions of the Act, it is provided in Sub-Clause (1) of Section 2 that any building within the Cantonment which is or may be appropriated by the Central Government on lease under the Cantonment (House Accommodation) Act, 1923, would be exempted. 11. In reply to the aforesaid arguments, Sri Madhur Kant Srivastava, learned counsel for the private respondent has contended that the plea with regard to non-applicability of the Act upon the disputed premises has been raised by the petitioners for the first time before this Court. No such plea was raised before the courts below, therefore, the petitioners should not be allowed to raise this new plea in the writ jurisdiction. The petitioners sought an attempt to include this plea by way of filing amendment application but their application was rejected and the order rejecting application, became final because the said order was not challenged before any higher court. It is next submitted on behalf of the private respondent that the arguments of the learned counsel for the petitioners, that all the buildings situated in the cantonment area of Lucknow, are exempted from the purview of U.P. Act No. 13 of 1972 is misconceived and not tenable. 12. The learned counsel has relied upon a judgment of this Court Smt. Ruchira Vinayak and Others vs. IInd Additional District Judge, Meerut, (2004) 1 ARC 54. 12. The learned counsel has relied upon a judgment of this Court Smt. Ruchira Vinayak and Others vs. IInd Additional District Judge, Meerut, (2004) 1 ARC 54. In this case, it has been held that in exercise of the power conferred by Section 3 of the Cantonment (Extension of Rent Control Laws) Act, 1957 and in super-session of the notification dated 01.09.1973, the Central Government through notification dated 17.02.1982 extended to all the cantonments in the state of U.P. and U.P. Act No. 13 of 1972 with certain modifications. Section 1(3) of U.P. Act No. 13 of 1972 provides that the Act shall apply to every city, every municipality, every notified area and every town area. By the aforesaid notifications, clause (e) has been added to Section 1(3), according to which, every cantonment in U.P. declared to be a cantonment under Section 3 of the Cantonment Act, 1924. By virtue of Section 2 of U.P. Act No. 13 of 1972, the said Act does not apply to the building mentioned under the said section. By means of notification of September, 1973 and February, 1982, Clause (cc) has been added to Clause 2(1) of U.P. Act No. 13 of 1972, according to which, any building within the cantonment, which is or may be appropriated by the Central Government on lease under the Cantonment Act, 1923, the Act would not apply. This is consonance with Section 3 proviso (c) of the Act, according to which, the Central Government may by notification in the official gazette extend to any cantonment with such restriction and modification as it thinks fit any enactment relating to the control of rent and regulation of house accommodation which is enforce in the state in which the cantonment is situated. 13. The net result of the aforesaid notification and amendment is that U.P. Act No. 13 of 1972 applies to cantonments area but not to such house, which "are or may be appropriated by the Central Government on lease under 1923 Act." There is no dispute that in respect of the Cantonment in which house in dispute is situated, notification under Section 3 (1) of Cantonment (house accommodation) Act, 1923 has been issued. In Section 5 of this Act, it is provided that every house situate in cantonment covered by notification under Section 3(1) shall be liable to appropriation by the Central Government on lease subject to the condition provided thereafter. 14. The purpose of the aforesaid Act as is evident from the provision of the Act, is to make available houses to military officers on lease and to regulate relationship between landlord and such military officer. It has nothing to do with the relationship or regulation of the same in between private landlord and private tenant. Any house which is in tenancy or occupation of a private person whether the accommodation is covered by the State Rent Control Act or not is liable to be appropriated under the aforesaid Act of 1923. The word may be appropriated cannot be read as liable to be appropriated because in case the intention was otherwise, same word should have been used at both the places. If the intention of the legislature was to make the said proviso applicable to all the houses liable to be appropriated, then the word liable to be appropriated would have been used. It was, therefore, held that U.P. Act No. 13 of 1972 applied to all the buildings within the cantonment area except the building which are appropriated on lease under the Act. Thus, the U.P. Act No. 13 of 1972 would be applicable to the house in question. Similar view has been expressed by this Court in another case Jagannath Bhatia vs. IIIrd Additional District Judge, Bareilly and Others, (1995) 1 ARC 75 . 15. The same controversy arose before the Hon'ble Apex Court also in the case of Brij Sunder Kapoor vs. Ist Additional District Judge, (1989) AllLJ 354. In this case, the Hon'ble Apex Court has observed that by the notification dated 01.09.1973 the Central Government extended to all the cantonment in the State of U.P. the provisions of U.P. Act No. 13 of 1972 as enforced in the State of U.P. Thus, where the application for release under Section 21 of the Rent Control Act was disposed of and allowed by the prescribed authority appointed in pursuance of the Act, the same was not open to challenge on the ground that the prescribed authority was not the competent authority in accordance with the provision of the Act. 16. 16. In another case reported in 1987 (1) ARC 191 the Hon'ble Supreme Court has held that by virtue of notification under Section 3 of the Cantonment (Extension of Rent Control Laws) Act, 1957, the provisions of U.P. Act 13 of 1972 are made applicable to cantonment areas also. 17. In view of the aforesaid decisions of the Hon'ble Apex Court as well as of this Court, the arguments raised on behalf of the petitioners that the building in question was beyond the purview of U.P. Act 13 of 1972 is not tenable. The prescribed authority as well as the appellate authority both have rightly disposed of the release application of the private respondent treating the house in question to be covered under the Rent Control Act. 18. So far as the findings with record to bona-fide need and comparative hardship are concerned, the same have been assessed by the prescribed authority on the basis of appreciation of evidence and the findings recorded by the prescribed authority, have been upheld by the appellate court also. Thus, there are concurrent findings of fact of both the courts that the need of the private respondent is bona-fide and genuine The hardship to the petitioners by grant of release application and the hardship to the private respondent by refusal of the release application has also been considered by both the courts and it has been found that the likely hardship to the private respondent would be greater, in case the application for release is rejected. These findings of fact cannot be interfered with in the exercise of writ jurisdiction under Article 227 of the Constitution of India, unless it is shown that the findings are perverse or the same are based on no evidence. The learned counsel for the petitioners have failed to indicate as to how the findings recorded by the courts below with regard to bona-fide need and comparative hardship are perverse or against the record. 19. Upon consideration of the submissions made on behalf of the parties and the law on the subject, I am of the view that the writ petition is devoid of merit and is liable to be dismissed. 20. The writ petition is dismissed. There will be no order as to cost. 21. 19. Upon consideration of the submissions made on behalf of the parties and the law on the subject, I am of the view that the writ petition is devoid of merit and is liable to be dismissed. 20. The writ petition is dismissed. There will be no order as to cost. 21. However, considering the facts and circumstances of the case, the petitioners are permitted to vacate the premises in dispute within three months from the date of this order and hand over its vacant possession to the private respondent, failing which, it will be open for the landlord private respondent no. 3 to enforce the order of release against the petitioners in accordance with law.