Research › Search › Judgment

Allahabad High Court · body

2019 DIGILAW 1316 (ALL)

Dilip Singh Chawla v. Krishna Kurari Gupta

2019-05-14

IRSHAD ALI

body2019
JUDGMENT : Irshad Ali, J. 1. Heard Sri Shafiq Mirza, learned Senior Advocate assisted by Sri Himayu Mirza, learned Counsel for the petitioner and Sri Dheeraj Srivastava, learned Counsel for the respondent No. 1. 2. Factual matrix of the case is that an application under section 21(1)(a) of the U.P. Act No. 13 of 1972 was filed by opposite party No. 1 on 10.1.1997. The petitioner filed written statement on 21.8.1997. The release application was allowed vide order dated 11.9.1998. The petitioner, feeling aggrieved by the order passed by the Prescribed Authority, filed an appeal which has also been dismissed vide order dated 24.7.1999 and on the request made by the learned Counsel for the appellant, operation of the judgment was stayed for a period of one month. Both the orders passed by the Prescribed Authority as well as by the Appellate Court are under challenge. 3. Challenging the impugned orders, submission of learned Counsel for the petitioner is that the provision contained under section 21(1)(a) is mandatory to be followed while deciding the release application on the ground of bona fide requirement. Both the Courts below have committed gross illegality in not returning finding on the point by following the mandatory provisions of section 21(1)(a) of the Act No. 13 of 1972. 4. In support of his submission, he has placed reliance upon the following judgments: (i) Smt. Raj Rani Mehrotra v. IInd Addl. District Judge and others, 1980 (6) ALR 46 (Sum.) : 1980 ARC 311. (ii) Saroj Mishra and others v. Chandrakanti Sinha and others, 2009 (74) ALR 273. (iii) Swaraj Kumar (Sri) v. Arvind Kumar, 2005 (2) ARC 243 , paragraphs 5, 6, 7, 8 and 9 : 2005 (60) ALR 359. 5. Next submission of learned Counsel for the petitioner is that during the pendency of the proceedings, if another shop became vacant that too will be taken into consideration while deciding the issue involved at this stage also. In regard to that, he placed reliance upon the judgment rendered by this Court in the case of Jai Narain Khanna v. IInd A.D.J., Moradabad and others, 2007 (1) ARC 254 , paragraphs 9, 10 and 11 : 2007 (67) ALR 20 (Sum.). 6. In regard to that, he placed reliance upon the judgment rendered by this Court in the case of Jai Narain Khanna v. IInd A.D.J., Moradabad and others, 2007 (1) ARC 254 , paragraphs 9, 10 and 11 : 2007 (67) ALR 20 (Sum.). 6. Sri Safiq Mirza, learned Counsel for the petitioner further submitted that under the proviso to section 21(1)(a), certain requirement is prescribed to be considered while dealing with the bona fide requirement of the landlord as well as of the tenant. Likewise, he placed reliance upon proviso (4) to section 21 to the effect that the Prescribed Authority and the Appellate Court have failed to appreciate that while recording finding on bona fide requirement, the factual as well as relevant evidence is to be taken care of which has not been done in the present case. 7. Per contra, submission of learned Counsel for the respondents is that the petitioner has Chawla market complex, wherein there are 25-30 shops, in which he can establish his shop to run his business, therefore, in comparison of the landlord the bona fide requirement and comparative hardship of the tenant is more than that of landlord. 8. He next submitted that both the Courts below while considering the application for release of the shop have taken care of the comparative hardship of the landlord as well as bona fide requirement being three sons and five daughters in his family, therefore his submission is that both the Courts below have committed no error in law in passing the impugned judgments. He next submitted that in view of the finding return by both the Courts below, no interference is called for and the writ petition is liable to be dismissed. 9. He next submitted that opposite party No. 1 is the owner of the shop in question and for release of the shop occupied by the petitioner, he moved an application under section 21(1)(a) of the Act No. 13 of 1972 on 10.9.1997 on the ground that son of the plaintiff is unemployed, so that he may be settled in business in the shop in dispute. 10. Next submission of learned Counsel for the respondents is that the Prescribed Authority on the basis of evidence, has recorded finding on the bona fide requirement which does not suffer from infirmity or illegality. 10. Next submission of learned Counsel for the respondents is that the Prescribed Authority on the basis of evidence, has recorded finding on the bona fide requirement which does not suffer from infirmity or illegality. He next submitted that the Appellate Authority, after perusal of the material on record, has affirmed the finding return by the Prescribed Authority in regard to release of the shop. 11. In support of his submissions, he placed reliance upon the judgment rendered by this Court in the case of Mohd. Zafar Khan and others v. District Judge, Hardoi and others, 2011 (2) ARC 629 paragraphs 85, 86 and 91 : 2011 (86) ALR 668. 12. He further placed reliance upon the judgment rendered by this Court in the case of Ramji Lal v. 1st Addl. District Judge, Muzaffarnagar and others, 1992 (19) ALR 279 so as to distinguish the applicability of the judgments cited in favour of the petitioner. 13. He also placed reliance upon the judgment rendered in the case of Suresh Chand Sharma v. Nand Kumar Kamal, 2013 (97) ALR 817. 14. I have heard rival submissions of learned Counsel for the parties and perused the material on record as well as law reports relied upon by the learned Senior Advocate appearing for the petitioner as well as learned Counsel for the respondents. 15. To resolve the controversy of the present writ petition, section 21(1)(a) is quoted below: "21. Proceedings for release of building under occupation of tenant--(1) The Prescribed Authority may, on an application of the landlord in that behalf order the eviction of a tenant from the building under tenancy or any specified part thereof if it is satisfied that any of the following grounds exits, namely- (a) that the building in bona fide required either in its existing form or after demolition and new construction by the landlord for occupation by himself or any member of his family, or any person for whose benefit it is held by him, either for residential purposes or for purposes of any profession, trade, or calling, or where the landlord is the trustee of a public charitable trust, for the objects of the trust;......" 16. On perusal of the provisions referred hereinabove and the order passed by the Prescribed Authority, it is reflected that while dealing with the matter of bona fide requirement, there is only recital that the bona fide requirement of the landlord is more than that of the tenant/petitioner. While reaching at the conclusion of the bona fide requirement, the Prescribed Authority would have considered the comparative hardship, irreparable loss and injury and to arrive at conclusion of bona fide requirement, he has to record cogent reason which is missing in the impugned orders. Thus, non-recording of cogent reason to arrive at conclusion of bona fide requirement, the order vitiates in law. 17. In regard to the consideration of the provisions contained under section 21(1)(a), learned Counsel for the petitioner placed reliance upon the judgment rendered in the case of Smt. Raj Rani Mehrotra (supra), wherein the Hon'ble Supreme Court has held in paragraph 1 as under: "1. We have heard Counsel for the parties. On going through the judgments of the lower authorities also of the High Court we are Satisfied that the issue arising under Rule 16(1)(d) of the rules framed under the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction), Rules, 1972, as to whether the landlord's need could have been satisfied by releasing only a part of the premises has not been gone into or considered by any of them. When the plea under the said rule was pressed on behalf of the tenant in the High Court. The High Court rejected it on the sole ground that no such plea has been raised by the tenant in his written statement and as such it could not be considered. It is clear that under the relevant rule it is a duty of the Court to take into account that aspect while considering the requirements of personal occupation of the landlord and therefore, this issue will have to be remanded to the High Court." 18. Learned Counsel for the petitioner placed reliance upon the judgment rendered in case of Saroj Mishra (supra), wherein following has been held in paragraphs 8 and 9: "8. Learned Counsel for the petitioner placed reliance upon the judgment rendered in case of Saroj Mishra (supra), wherein following has been held in paragraphs 8 and 9: "8. After hearing learned Counsel for petitioner and learned Counsel for respondents, as it is not disputed that the issue regarding part of release of the accommodation to satisfy the need of the landlord-respondent has not been considered, therefore, this Court is of the view that matter needs reconsideration in view of Rule 16(1)(d) of Rules 1972 which is mandatory in nature. This Court as well as the Apex Court has also taken the same view. 9. In view of the aforesaid fact, the writ petition is allowed in part and the order dated 30.9.2008 passed by learned Additional District Judge, Court No. 1, Allahabad is hereby quashed and the matter is remanded back to Appellate Authority for decision in view of the observation made above taking into consideration the provision of Rule 16(1)(d) of the Rules framed under the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 as well as the Apex Court judgment considering the question of part release of accommodation in dispute. As the matter is very old, therefore, the same may be decided by Appellate Authority within a period of six months without granting any unnecessary adjournments to the parties." 19. Another judgment rendered in the case of Swaraj Kumar (Sri) (supra) relied upon by learned Counsel for the petitioner, wherein the following has been held in paragraphs 5, 6, 7, 8 and 9: 5. Learned Counsel for the petitioner has argued firstly that in view of the provisions of section 21(1)(a) of the Act it was incumbent on the part of the Prescribed Authority as well as the appellate authority before directing release of the accommodation in dispute under section 21(1)(a) of the Act, to consider as to whether the release of the part of accommodation will serve the purpose of the landlord and tenant both and if it would have come to the conclusion that the release of the part of the accommodation will serve the purpose, it should direct for release of part of the accommodation not of entire. Learned Counsel for the petitioner further argued many other points but since the writ petition succeeds on this point of part release of the accommodation, the other points are not discussed. Learned Counsel for the petitioner further argued many other points but since the writ petition succeeds on this point of part release of the accommodation, the other points are not discussed. For ready reference section 21(1)(a) is quoted below: "21. Proceedings for release of building under occupation of tenant.--(1) The Prescribed Authority may, on an application of the landlord in that behalf order the eviction of a tenant from the building under tenancy or any specified part thereof if it is satisfied that any of the following grounds exists, namely: (a) that the building is bona fide required either in its existing form or after demolition and new construction by the landlord for occupation by himself or any member of his family, or any person for whose benefit it is held by him, either for residential purposes or for purposes of any profession, trade, or calling, or where the landlord is the trustee of a public charitable trust, for the objects of the trust...." 6. As against the point of part release, learned Counsel for the respondent raised objections to the effect that since this point was not raised either before the Prescribed Authority, or before the Appellate Authority, therefore, petitioner cannot be permitted to raise it before this Court for the first time. Learned Counsel for the petitioner relied upon the decision of the Apex Court in Smt. Raj Rani Mehrotra v. IInd Additional District Judge and others, 1980 ARC 311 : 1980 (6) ALR 46 (Sum.), wherein the Apex Court has ruled as under: "We have heard Counsel for the parties. On going through the judgments of the lower authorities also of the High Court we are satisfied that the issue arising under Rule 16(1)(d) of the Rules framed under the U.P. Urban Buildings (Regulations of Letting, Rent and Eviction), Rules 1972, as to whether the landlord's need could have been satisfied by releasing only a part of the premises has not been gone into or considered by any of them. When the plea under the said rule was pressed on behalf of the tenant in the High Court, the High Court rejected it on the sole ground that no such plea has been raised by the tenant in his written statement and as such it could not be considered. When the plea under the said rule was pressed on behalf of the tenant in the High Court, the High Court rejected it on the sole ground that no such plea has been raised by the tenant in his written statement and as such it could not be considered. It is clear that under the relevant rule it is duty of the Court to take into account that aspect while considering the requirements of personal occupation of the landlord and therefore, this issue will have to be remanded to the High Court. We accordingly set aside the order of the High Court dismissing the writ petition and remand the matter back to it for determination of aforesaid issue. If necessary, the parties may have to be allowed to lead fresh evidence, if the High Court is unable to decide it on the materials on the record. If evidence becomes necessary, the High Court may in its turn remand the matter back to the Trial Court, which will give an opportunity to both the parties to lead fresh evidence." 7. It is then submitted by learned Counsel for the petitioner that in view of the law laid down by the Apex Court, the objection raised by respondent deserves to be rejected. It is then submitted by learned Counsel for the respondents that since the accommodation in dispute is a non-residential accommodation which is governed by the provisions of Rule 16(2) of the Rules framed under U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972 and not by the provisions of Rule 16(1) of the aforesaid Rules, therefore, the question of considering the part release by the authorities does not arise. In reply to the aforesaid objection learned Counsel for the petitioner further relies upon other decision of the Apex Court in Ramesh Chandra Kesharwani v. Dwarika Prasad and another, 2002 (48) ALR 275 (SC), wherein taking notice of the sub-rules (1) and (2) of Rule 16 of the aforesaid Rules, 1972 the Apex Court has ruled as under: "5. In reply to the aforesaid objection learned Counsel for the petitioner further relies upon other decision of the Apex Court in Ramesh Chandra Kesharwani v. Dwarika Prasad and another, 2002 (48) ALR 275 (SC), wherein taking notice of the sub-rules (1) and (2) of Rule 16 of the aforesaid Rules, 1972 the Apex Court has ruled as under: "5. The first contention raised by Shri R.B. Mehrotra looked attractive prima face, but on a closer reading of section 21(1) it leaves little scope for doubt that the Prescribed Authority is vested with the power to order eviction of a tenant from the building under tenancy, or any specified part thereof if it is satisfied about exercise of the ground specified in the section. No distinction is made between residential and non-residential premises in the section. Therefore, by interpretation, it cannot be held that the power vested in the authority to order partial eviction is confined to the residential premises only. Regarding Rule 16, it is to be rioted that sub-rules (1) and (2) lay down certain factors for consideration by the Prescribed Authority which is considering the question of eviction from the premises. Rule 16(1) deals with premises in occupation for the purpose of residence and Rule 16(2) deals with premises in occupation of a tenant for the purpose of any business. Clause (d) of Rule 16 (1) provides that where the tenant's needs would be adequately met by leaving with him a part of the building under tenancy and the landlord's needs would be served by releasing the other part, the Prescribed Authority shall release only the latter part of the building. This provision, in our view, merely reiterates the power vested in the authority to order eviction of the tenant from the premises in entirety or portion of it. No doubt a similar provision is not found in sub-rule (2) of Rule 16, but that does not affect the power of the authority vested under section 21 of the Act to order eviction of tenant from a portion of the premises in an appropriate case if the authority is satisfied that on the facts and circumstances of the case interest of justice will be served by passing such an order. Therefore, the first contention raised by Shri Mehrotra cannot be accepted." 8. Therefore, the first contention raised by Shri Mehrotra cannot be accepted." 8. Learned Counsel for the petitioner has also relied upon another judgment of this Court in Pratap Narain Tandon v. Abdul Makatadir, 2005 (59) ALR 12, wherein in the similar circumstances this Court quashed the order of the Prescribed Authority as well as the appellate authority and remanded the matter to the authority to decide in accordance with law in the light of observations made in the judgment. 9. Considering the aforesaid facts and arguments and the law laid down by the Apex Court and this Court, this writ petition deserves to be allowed and is hereby allowed. The order dated 31.3.2005 (Annexure-15 to the writ petition) passed by the Appellate Authority is quashed and the matter is remanded to the Appellate Authority to consider the question of part release and decide the same in the light of the observations made in this judgment and in accordance with law. Since the matter is old, the Appellate Authority is directed to decide the question involved within three months from the date of presentation of certified copy of this judgment before him." 20. He further placed reliance upon the judgment rendered in the case of Jai Narain Khanna (supra), wherein this Court in paragraphs 9, 10 and 11 has held as under: "9. According, the subsequent event of availability of the shop, in which original landlord was doing business, to Shyam Sunder during pendency of the writ petition after the death of the original landlord in the year 1998 has changed the entire scenario. It is such an important subsequent development, which will have to be taken into consideration. It has totally satisfied the need of Shyam Sunder as set up in the original release application. 10. I have considered the legal position in respect of subsequent events in the matter of bona fide need of the landlord in detail in the authority reported in Diptee Singh v. A.D.J., 2006 (62) ALR 418. In the said authority, I have placed reliance upon several Supreme Court authorities including K.N. Agarwal v. D. Devi, 2004 (2) ARC 764. 11. I have considered the legal position in respect of subsequent events in the matter of bona fide need of the landlord in detail in the authority reported in Diptee Singh v. A.D.J., 2006 (62) ALR 418. In the said authority, I have placed reliance upon several Supreme Court authorities including K.N. Agarwal v. D. Devi, 2004 (2) ARC 764. 11. Accordingly both the impugned orders are set aside and writ petition is allowed only on the ground of subsequent event of death of original landlord and availability of the shop, in which original landlord was carrying on the business, to Shyam Sunder for whose need release application was filed. Para 13 of Diptee Singh authority is quoted below: "I have held in Khursheeda v. A.D.J., 2004 (55) ALR 586 that while granting relief to the tenant against eviction in respect of building covered by Rent Control Act, writ Court is empowered to enhance the rent to a reasonable extent. Under somewhat similar circumstances the Supreme Court in the authority reported in A.K. Bhatt v. R.M. Shah, AIR 1997 SC 2510 : 1997 SCFBRC 322., enhanced the rent from Rs. 101/- per month to Rs. 3,500/- per month with effect from the date of the judgment of the Supreme Court. For the period during which appeal remained pending before the Supreme Court rent was enhanced to Rs. 2,000/- per month for some of the period and Rs. 2500/- per month for rest of the period. In the said authority release application of the landlord had been allowed by the Court below. The Supreme Court held that the landlord who had sought release of the building when he was about 54 years of age had become 87 years of age when the matter was decided by the Supreme Court hence he was not in a position to do any business. This fact of old age of the landlord was taken into consideration as relevant subsequent event by the Supreme Court." 21. Learned Counsel for the respondents placed reliance upon the judgment rendered in the case of Mohd. Zafar Khan (supra), wherein the following has been held in paragraphs 85, 86 and 91: "85. And in the case of Ramji Lal v. 1st Addl. Learned Counsel for the respondents placed reliance upon the judgment rendered in the case of Mohd. Zafar Khan (supra), wherein the following has been held in paragraphs 85, 86 and 91: "85. And in the case of Ramji Lal v. 1st Addl. District Judge, Muzaffarnagar and others, 1992 (19) ALR 279., in paragraph No. 19 has held as under: "Para No. 19-There is no dispute that if the provision of Rule 16(1)(d) have not been considered by the Appellate Authority the same can be considered by the High Court. Reference may be made to the case reported in Smt. Raj Rani v. find Additional District Judge 1980 ARC 311 (SC) : 1980 (6) ALR 46 (Sum.). But since this Rule is not attracted in the present case, there was no question of it being considered." 86. In the light of abovesaid facts, the provision which emerge out is to the effect that the only interpretation of Rule 16(1)(d) of Rules framed under U.P. Act 13 of 1972 is that the same has no application to a non-residential building as the said sub-rule does not deal with an accommodation let out for commercial/business purpose but deals with an accommodation let out for residential purpose, thus the Prescribed Authority or Appellate Authority in the aid of Rule 16(1)(d) cannot consider theory of partial release of a commercial/business space in respect to which release application moved by the landlord under section 21(1)(a) of U.P. Act 13 of 1972 and the same is to be decided as per provisions as provided under Rule 16(2) of the Rules. 91. As per admitted facts of the present case, petitioners/tenants are enjoying comforts of a rented shop while the landlord/respondent is doing his business from another rented shop and in this regard, Appellate Court after appreciating facts of the present case stated to the effect that after filing of release application tenant had not made any sincere effort to find out alternate accommodation. So as per settled provision of law that when a release application is filed before the prescribed authority, tenant must find out suitable accommodation, he cannot force landlord to allow him to run his business from a shop rented to him." 22. Learned Counsel for the petitioner by placing reliance upon certain judgments wherein Rule 16(1)(d) was considered by holding that to arrive at conclusion of bona fide requirement, reason should be recorded. Learned Counsel for the petitioner by placing reliance upon certain judgments wherein Rule 16(1)(d) was considered by holding that to arrive at conclusion of bona fide requirement, reason should be recorded. Mere recital that there is bona fide requirement, is not sufficient. Learned Counsel for the respondents tried to distinguish the judgments relied upon by learned Counsel for the petitioner on the pretext that most of the judgments have dealt the provisions contained under Rule 16(1)(d). Thus, the ratio of judgments is not applicable to the present facts and circumstances of the case. 23. The dispute in hand pertains in regard to section 21(1)(a) of the Act No. 13 of 1972, therefore, the finding is to be recorded in regard to bona fide requirement taking into consideration of aforesaid provisions. 24. Hon'ble Supreme Court while considering bona fide requirement as required under section 16(1)(d) has proceeded to hold that no reason has been recorded to arrive at the conclusion of bona fide requirement, although the judgment is in consideration of provisions under Rule 16(1)(d), but the ratio of judgments shall be made applicable in a case dealing with the matter under section 21(1)(a) wherein while deciding the issue, finding with reason is to be return on the bona fide requirement. Therefore, the submission advanced that the judgment relied upon by the learned Counsel for the petitioner is not applicable to the present facts and circumstances of the case, is misplaced. 25. On perusal of the impugned orders, it is apparent on the face of it that both the Courts below while passing the impugned orders have failed to discharge their legal duties to arrive at the conclusion of bona fide requirement. Both the orders do not contain the cogent reason and mere recital of bona fide requirement is not the purpose to decide the requirement of the landlord. The Courts below would have considered that there is bona fide need and if it is not considered, there shall be hardship to the landlord. In the present case, both the Courts below have failed to record the reason in this regard. 26. The Courts below would have considered that there is bona fide need and if it is not considered, there shall be hardship to the landlord. In the present case, both the Courts below have failed to record the reason in this regard. 26. In the above-referred judgments whether dealing with the provisions of Rule 16(1)(d) or the provisions contained under section 21(1)(a), it has been recorded that the Prescribed Authority as well as the Appellate Authority has to take care to arrive at the conclusion of bona fide requirement by recording finding on the basis of material evidence produced before them. Due to non-consideration of the aforesaid aspect of the matter, both the orders impugned in the writ petition suffer from gross illegality and cannot be sustained. 27. In regard to the shop which became vacant during the pendency of the writ petition, the submission advanced by the learned Counsel for the petitioner is that even though the ground was not available before both the Courts below, the same is liable to be considered by this Court while dealing with the matter of bona fide requirement. He submits that due to subsequent vacant shop which is available to the landlord will serve the purpose and meet the end of requirement to run the business of his son. In this regard, he placed reliance upon the judgment rendered in the case of Jai Narain Khanna (supra), wherein this Court while dealing with the matter has held that the issue cannot be denied by the High Court on the issue of subsequent event of availability of the shop by the High Court and remanded the matter for reconsideration of the relevant subsequent events by the Hon'ble Supreme Court. 28. This Court, on over-all consideration of material on record, has recorded that both the Courts below have failed to record cogent reason to arrive at the conclusion of the bona fide requirement and is of the opinion that by setting aside the orders, the matter is to be remanded back to the Prescribed Authority for fresh consideration with the further direction to take into consideration the subsequent events of availability of the shop to fulfill the bona fide needs of the landlord. 29. 29. In view of the above, this Court has arrived at the conclusion that both the Courts below have ignored the consideration of bona fide requirement by not recording cogent reason to arrive at the conclusion of bona fide requirement. Thus, the orders dated 24.7.1999 and 11.9.1998 cannot be sustained and are hereby set aside. 30. Accordingly, this writ petition succeeds and is hereby allowed. 31. In the interest of justice, the matter is remanded back to the Prescribed Authority to reconsider and pass fresh order permitting the parties to lead evidence and provide opportunity of hearing while considering the issue involved as observed by this Court. 32. It is, however, provided that question of existence of subsequent shop shall also be taken into consideration in the light of the judgment referred hereinabove in the case of Smt. Raj Rani Mehrotra (supra). 33. It is however directed that since the matter is old, therefore, the exercise in this regard shall be concluded and final order shall be passed within a period of four months from the date of production of a certified copy of this order. 34. No order as to costs.