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2020 DIGILAW 918 (ALL)

Anil Kumar Sharma v. Lalta Prasad Jain

2020-06-02

SARAL SRIVASTAVA

body2020
JUDGMENT : 1. Heard Sri Ranjit Saxena, learned Senior Counsel for the petitioner and Sri H.N. Tripathi, learned counsel for the respondent. 2. The petitioner-tenant (hereinafter referred as 'Petitioner') through present petition has assailed the judgment and order dated 05.12.2015 passed by Additional District Judge, Court No.8, Firozabad in P.A. Appeal No.20 of 2009 (Lalta Prasad Jain Vs. Smt. Narvada Devi) whereby the appellate court has allowed the release application of respondent-landlord (hereinafter referred as 'Respondent') under Section 21 (1)(a) of the U.P. Act No.13 of 1972 (hereinafter referred to as 'Act, 1972'). 3. The respondent preferred release application under Section 21 (1) (a) & (b) of the Act, 1972 against the petitioner on the ground that petitioner is a tenant of the first floor of the building situated at Sadar Bazar Main Road, Tundla (hereinafter referred to as 'disputed property') as described in the release application @ Rs.100/- per month and the house tax. It was further stated that disputed property is an old building and is in a dilapidated condition, and as such, it is required for demolition and reconstruction. 4. The personal need set up by the respondent in the release application was that the son and grandson of the respondent are running their business on the disputed property at the ground floor and require the disputed property for its use and occupation. 5. The aforesaid application was contested by the petitioner by filing written statement contending inter-alia that disputed property is not in a dilapidated condition. The disputed property is in good condition and does not require demolition and reconstruction. The petitioner also denied the fact that the need of the respondent is bonafide and genuine. 6. The Prescribed Authority based on pleadings on record, framed several issues. On the issue whether the disputed property is in a dilapidated condition, the Prescribed Authority found that respondent has failed to establish that the disputed property is in dilapidated condition. On the issue of bonafide need, it held that the release application has been filed in the year 2004 and it is evident from the averments in the affidavit of the respondent that son of the landlord has established business in the same premises in the year 2005 and grandson in September 2005, therefore, the need of the respondent is satisfied. The Prescribed Authority returned the finding on the issue of comparative hardship against the respondent. The Prescribed Authority returned the finding on the issue of comparative hardship against the respondent. Consequently, the Prescribed Authority rejected the release application by order dated 27.03.2009. 7. The respondent feeling aggrieved by the order dated 27.03.2009 preferred P.A. Appeal No.20 of 2009. The Appellate Authority rejected the application under Section 21(1) (b) of the Act, 1972 on the ground that though the respondent has established that disputed property is in a dilapidated condition but has failed to satisfy the compliance of Rule 17 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction), Rules, 1972. 8. The appellate court while considering release application under Section 21(1) of the Act, 1972 placed reliance on the judgment of this court in the case of Dr Piyush Kumar Chaturvedi Vs. Special Judge (SC/ST Act) Lucknow and Others 2005 (2) AWC 1784 and held that the release application is not barred by Clause (ii) to the Third Proviso to Section 21 (1) of the Act, 1972. The appellate court also noticed that petitioner has an alternative accommodation within the municipal limit of Kasba Tundla for residential purposes, and therefore, he cannot object to the release application because of the Explanation (i) to the Fourth Proviso to Section 21(1) of the Act, 1972. 9. The appellate court further considered the bonafide need of respondent and after appreciating the evidence on record held that the need of the respondent is pressing and bonafide and comparative hardship lay in his favour. Accordingly, it allowed the release application by order dated 05.12.2015. 10. Challenging the aforesaid order, learned Counsel for the petitioner has contended that it is admitted on record that disputed property is being used for residential purposes and its release is sought for commercial purpose. Therefore, the application under Section 21 (1) (a) is barred by clause (ii) to the Third Proviso to Section 21 (1) of the Act, 1972. He further submits that the finding of the appellate court that petitioner has an alternative residential accommodation within the municipal limit of Kasba Tundla is perverse and against the record. 11. Therefore, the application under Section 21 (1) (a) is barred by clause (ii) to the Third Proviso to Section 21 (1) of the Act, 1972. He further submits that the finding of the appellate court that petitioner has an alternative residential accommodation within the municipal limit of Kasba Tundla is perverse and against the record. 11. Refuting the aforesaid submission, learned counsel for the respondent has submitted that the appellate court has held on the appreciation of evidence on record that the petitioner has an alternative residential accommodation within the municipal limit of Kasba Tundala, which being a finding of fact is not liable to be interfered with under Article 226 of the Constitution of India, therefore, the petitioner is debarred from objecting to the release application because of Explanation (i) to the Fourth proviso to Section 21 (1) of the Act,1972. He further contends that the appellate court rightly relied upon the judgment of this Court in the case of Dr Piyush Kumar Chaturvedi Vs. Special Judge (SC/ST Act) Lucknow and Others 2005 (2) AWC 1784 to hold that clause (ii) to the Third Proviso to Section 21 (1) of the Act, 1972 does not apply to the facts of the present case. 12. It is also urged that jurisdiction conferred upon the court under Section 21 (1) (a) is wide and proviso does not supersede the spirit of the main section of the Act, hence, application of respondent under Section 21 (1) (a) of the Act, 1972 was maintainable and finding of the appellate court in this regard is correct and based upon the proper understanding of the law. 13. I have considered the rival submissions of the parties and perused the record. 14. In the present case, it is not in dispute between the parties that the disputed property under the tenancy of the petitioner has been let out for a residential purpose and is being used as residential. 15. Now, to appreciate the contention of learned counsel for the petitioner that the releases application was barred by Clause (ii) of the Third Proviso to Section 21(1) of Act, 1972, it would be pertinent to refer paragraph 2 of the release application wherein the averments concerning the personal need of the respondent is stated, paragraph 2 of the release application is reproduced herein:- “2. That the property in dispute is a very old building and in dilapidated condition and as such it requires for demolitions and reconstructions. As the applicant's son and grandson, who are running their business in the same property at ground floor are also needful for its own occupation.” 16. It would also be relevant to notice that Vijay Kumar Jain, the son of the respondent, in paragraph 4 of the affidavit has stated that disputed property is needed for the establishment of godown and office. Paragraph 4 of the affidavit is reproduced herein-below:- ^^4- ;g fd mYys[kuh; ;g Hkh gS fd eq>s 'kiFkdrkZ ds vius Fkksd O;olk; ds fy, ,d lqO;ofLFkr dk;kZy; ,oa xksnke ds fy, l[r vko';drk gS] ftlds fy, fd oknxzLr laifRr loZFkk mi;ksxh gS] ftldk fd iquZfuekZ.k djds vius futh mi;ksx esa yk;k tk;sxkA** 17. Sonalji, the grandson of the respondent, has reiterated the averments of paragraph no. 4 of the affidavit of Vijay Kumar Jain in paragraph no. 4 of his affidavit. 18. It is discernible from the pleadings of the respondent extracted above that the release of disputed property is sought for godown and establishment of an office. Hence, the purpose for which release of the disputed property is sought is commercial. 19. The Appellate court has held that that the petitioner has acquired an alternative residential accommodation within the municipal limit of Kasba Tundla. On the strength of the said finding, the counsel for the respondent argued that petitioner is debarred from raising any objection to release application in view of Explanation (i) to the Fourth Proviso to Section 21(1) of the Act, 1972. 20. Now, the question which arises for consideration is whether clause (ii) to the Third Proviso to Section 21(1) of Act, 1972 prohibits the release of the residential building for commercial purpose, even if the tenant has acquired an alternative accommodation and cannot object to the release application because of Explanation (i) to the Fourth Proviso to Section 21(1) of Act, 1972. 21. The relevant clause of the third proviso & Explanation (i) to the Fourth Proviso to Section 21(1) of the Act,1972 is quoted below: “Provided also that no application under clause (a) shall be entertained- (i) …............................................. (ii) in the case of any residential building, for occupation for business purposes; (iii) ….............................................................. 21. The relevant clause of the third proviso & Explanation (i) to the Fourth Proviso to Section 21(1) of the Act,1972 is quoted below: “Provided also that no application under clause (a) shall be entertained- (i) …............................................. (ii) in the case of any residential building, for occupation for business purposes; (iii) ….............................................................. Provided also that the prescribed authority shall, except in cases provided for in the Explanation, take into account the likely hardship to the tenant from the grant of the application as against the likely hardship to the landlord from the refusal of the application and for that purpose shall have regard to such factors as may be prescribed.] Explanation.-In the case of a residential building:- (i) where the tenant or any member of his family [(who has been normally residing with or is wholly dependent on him)] has built or has otherwise acquired in a vacant state or has got vacated after acquisition a residential building in the same city, municipality, notified area or town area, no objection by the tenant against an application under this subsection shall be entertained; ….......................................................” 22. A reading of Clause (ii) to the Third Proviso to Section 21(1) makes it amply clear that it is mandatory and puts an embargo upon the court to entertain an application under clause (a) where the release of a residential building is sought for commercial purpose. 23. This court in the case of Rajesh Kumar Gupta Vs. Deepak Tandon and Another 2016 (8) ADJ 652 has considered the identical issue and held that a residential building cannot be released for commercial purposes. Paragraphs 20 to 22 of the aforesaid judgment are being extracted herein below :- “20. Explanation (i) to the fourth proviso to Section 21(1) of the Act stipulates that where the tenant or any member of his family has built or has otherwise acquired in a vacant state or has got vacated after acquisition a residential building in the same city, municipality, notified area or town area, no objection by the tenant against an application under this subsection shall be entertained. In other words, it provides that if a tenant of a residential premises has acquired another residential premises in vacant state he would not be entitled to raise any objection against the release application. 21. In other words, it provides that if a tenant of a residential premises has acquired another residential premises in vacant state he would not be entitled to raise any objection against the release application. 21. The aforesaid provision only debars the tenant from raising objection against the release application but it does not debars the court from considering the maintainability of the release application on the pleadings made in the release application itself. Thus, notwithstanding any objection to the release application by the tenant the release application on the face of it was not maintainable in so far as it seeks the release of a residential portion for business purposes. 22. In the above circumstances, as the landlords sought release of three rooms residential portion with a drawing room, courtyard, kitchen, toilet and bathroom for business purposes, the release application to that effect was barred by clause (ii) to third proviso to Section 21(1) of the Act.” 24. The Apex Court in the case of Kush Sahgal and Others Vs. M.C. Mitter & Others 2000 (4) SCC 526 while considering the scope of Section 21 of the Act, 1972 held that a residential building cannot be released for business or commercial purposes. Paragraph 32 of the judgment is being extracted hereinbelow:- “32. Under Sub-section (1) of Section 21, a landlord can apply for eviction of a tenant on the ground that the building was 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 either for residential purposes or for purposes of any profession, trade or calling or on the ground that the building which was in a dilapidated condition was required for purposes of demolition and new construction. The second Proviso to Sub-section (2) however provides that “An application under Clause (a) shall not be entertained in the case of any Residential building for occupation for business purposes”. Thus, if an application is made by the landlord for eviction of the tenant on the ground that the building in occupation of that tenant which was used exclusively for residential purposes was required for business purposes or for any other commercial activity, it would not be a ground within the meaning of Section 21(1) of the new Act for the eviction of the tenant and the application will not be entertained. This we say because the normal function of a proviso is to except something out of the enactment or to qualify something enacted therein which but for the proviso would be within the purview of the enactment. (See: Kedarnath Jute Manufacturing Co. Ltd. v. Commercial Tax Officer). Since the natural presumption is that but for the proviso, the enacting part of the section would have included the subject matter of the proviso, the enacting part has to be given such a construction which would make the exceptions carved out by the proviso necessary and a construction which would make the exceptions unnecessary and redundant should be avoided (See: Justice G.P. Singh’s "Principles of Statutory Interpretation" Seventh Edition 1999, p-163). This principle has been deduced from the decision of the Privy Council in Govt. of the Province of Bombay v. Hormusji Manekji as also the decision of this Court in Durga Dutt Sharma v. Navaratna Pharmaceutical Laboratories.” 25. This court in the case of Rajesh Kumar Gupta (supra) repelled the contention of the landlord that the tenant is debarred from objecting to released application in view of Explanation (i) to the Fourth Proviso to Section 21(1) of Act, 1972 as he has acquired alternative accommodation in a vacant state and held that the release of a residential building for a commercial purpose is barred by clause (ii) of the Third Proviso to Section 21(1) of Act, 1972. 26. In the present case, it is established from the pleadings of the respondent that the disputed property is residential and its release is sought for commercial purpose. Therefore, in the light of principles laid down in the aforesaid judgments which are binding precedent, this Court finds substance in the argument of counsel for the petitioner that residential building cannot be released for commercial purposes. 27. The judgment of this Court in the case of Dr Piyush Kumar Chaturvedi (supra) relied upon by the appellate court is not applicable in the facts of the present case since the said judgment has not considered the effect of the Clause (ii) to the Third Proviso to Section 21 (1) of the Act, 1972 which prohibits the court from entertaining an application for release of a residential building for commercial purpose. 28. The other two judgments i.e. Shanti Devi & Others Vs. Swami Asthanand and Others 2003 (2) SCC 26 and Harrington House School Vs. 28. The other two judgments i.e. Shanti Devi & Others Vs. Swami Asthanand and Others 2003 (2) SCC 26 and Harrington House School Vs. S.M. Ispahani and Others 2002 (5) SCC 229 relied upon by the appellate court were not the cases where the release of a residential building was sought for commercial purpose and the tenant had set up the defence that the release application was barred by Clause (ii) of the Third Proviso to Section 21(1) of the Act,1972. Therefore, the aforesaid two judgments having been rendered in a different factual context are not applicable in the present case and appellate court has erred in placing reliance on the said judgments. 29. Since this court has held that the release application is barred by Clause (ii) to the Third Proviso to Section 21(a) of the Act, 1972, therefore, this court does not find it necessary to consider the other submissions of the counsel for the petitioner challenging the impugned order. 30. Thus, for the reasons given above, the order of the appellate court dated 05.12.2015 in P.A. Appeal No. 20 of 2009 allowing the release application cannot be sustained and is accordingly, set aside. 31. Consequently, the writ petition is allowed with no order as to costs.