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2022 DIGILAW 7 (UTT)

Apurva Jindal v. Sukhvinder Singh

2022-01-05

SHARAD KUMAR SHARMA

body2022
JUDGMENT : The petitioner before this Court, is a landlord, who has put a challenge to the impugned Appellate Court’s judgment, as it has been rendered by the court of 1st Additional District Judge, Kashipur, District Udham Singh Nagar in Rent Control Appeal No.11 of 2017, "Sukhvinder Singh Vs. Apurva Jindal", by virtue of which, the appeal preferred by the respondent/tenant, herein, was allowed, and as a consequence thereto, it had resulted into the setting aside of the order of the release dated 10th October 2017, as passed by the Prescribed Authority/Civil Judge (Junior Division) Kashipur, District Udham Sing Nagar, in the proceedings, which was registered as a PA Case No.6 of 2017, “Apurva Jindal Vs. Sukhvinder Singh”, under Section 21 (1) (a) of Act No.13 of 1972. 2. The precise case of the landlord in the release application was, that the respondent happens to be under the tenant of the petitioner over the tenement in question, which was described as to be a residential accommodation lying in Mohalla Katoratal Ramnagar Road, Premdeep Hotel, Kashipur, District Udham Singh Nagar. The “chaudahai” of the property under the tenancy of respondent was described in the release application itself. Apart from it, it has also come on record, that as far as the factum of relationship of the landlord and the tenant is concerned, it is a fact which is not disputed by either of the parties to the proceedings before the court below. It is contended by the landlord that the property in question was acquired by the landlord by virtue of registered deed of conveyance which was executed in their favour, and the said purchase was made by the landlord in order to meet up the need of the landlord himself, of the accommodation in question, which was under the occupancy of the respondent/tenant, which was bearing a rent of Rs.38/- per month. 3. 3. Prior to the termination of the tenancy, a notice as contemplated under proviso to section 21 (1) (a) was issued by the landlord on 7th November 2016, and thereafter a second notice by way of reminder was issued on 24th April 2015, contending thereof, that ever since issuance of the first notice, asking the respondent/tenant to vacate the premises in question, since he has not vacated the same within in the prescribed time limit therein in the notice, and he has committed the default despite of having a receipt of the notices, which was given for the termination of the tenancy, the release application was sought to be allowed, in order to meet up the personal need of the landlord. There had been a simultaneous proceedings which were held by way of the SCC suit being SCC Suit No.1 of 2015, which was filed after the issuance of the notices on 24th April 2015, on the ground of default, and also for the purposes of attracting the provisions contained under subsection (4) of Section 20 of the Rent Control Act, due to balance arrears of rent, and non timely remittance of rent. 4. The landlord in the release application has come up with a case, that since the applicant being an industrialist, he wants to comfortably accommodate his family, according to his social status, and the said need, as expressed by the applicant in the release application, i.e. to meet the needs of the family members according to the social status of the landlord and the said aspect has always been considered by the various precedents of the courts i.e. it is always the prerogative of the landlord to occupy an accommodation, which is under his ownership, and to spent his life comfortably according to his social status, which he enjoys in the society. He further submitted in the release application, that for the purposes of operating the business in which he is engaged, and also for the purposes of discharging the other various allied domestic work, he requires various domestic employees at his place for work to perform the duties of the domestic responsibilities, and hence his need was also expressed, that he will be needing certain servant quarters too, which are presently not available to him, to accommodate them in the accommodation, which is under the tenancy of the respondent/landlord. 5. 5. The said release application was opposed by the respondent/tenant by filing a written statement by way of Paper No.15 (ga), whereby they have blatantly denied, that there was any bonafide need of the landlord, as expressed in the release application for accommodating the family on the basis of his social status, and the requirement to accommodate the servants, who are to be employed by the landlord have a peaceful and dignified living. 6. The objection, thus, filed, if the written statement itself is taken into consideration, it was contended by the respondent/tenant, that the release application was ill motivated because the landlord wanted to get the residential accommodation vacated, and then to give it on rent to other tenants, which would be later on fetching higher rent than what was being paid by the respondent/ tenant. However, if their stand taken in the written statement, is considered in its totality, the defence, which has been argued by the respondent/tenant, was in the context that the proceedings under Section 21 (1) (a) of the Act No.13 of 1972, was vitiated. Since the notice was issued for the alleged commission of default in remittance of the rent, and on the other hand the release application has been filed while expressing the bonafide need of the family, they are in much contradiction to one another. Apart from the fact, that it is not a defence which has been taken by the respondent in the written statement filed in the release application, but even if this defence was taken then too under section 21(1) (a) of the Act No.13 of 1972, it is to be independently read with section 20 (4) of the Act, that itself contemplates a default, as to be one of the reasons for seeking a release of the tenement and Section 21 (1) (a) of the Act No.13 of 1972, comes into play also when the release is sought in order to meet up the bonafide need of the landlord. 7. In support of his contention, the landlord had placed on record the various documents i.e. plaint of the Suit No.1/15, filed before the Judge Small Causes, the copy of the written statement i.e. Paper No.7 (ga) (2). 7. In support of his contention, the landlord had placed on record the various documents i.e. plaint of the Suit No.1/15, filed before the Judge Small Causes, the copy of the written statement i.e. Paper No.7 (ga) (2). The orders passed, therein, on it on 15.07.2016, and apart from the aforesaid documentary evidence, he has also lead other oral evidence of himself by placing on record an affidavit i.e. Paper No.21 (ga), and has also adduced the evidence of Shri Yogendra Jindal, who had filed an affidavit in support of the release application Paper No.22(ga), and that of the Sompal i.e. Paper No.23 (ga), who were the independent witness to the release application, in its opposition to the pleadings of the written statement, and in support of release. Landlord also adduced evidence by way of an Affidavit of Dr. Ashok Kumar Goyal being paper No.24 (Ga). 8. While on the contrary, the respondent/tenant while opposing the release application has raised an objection by way of the written statement, as already observed, in paragraph No.15 (ga), that if the pleadings raised, therein, is taken into consideration, in its comparative scrutiny of the evidences which were led by the applicant to the release application, in fact apart from filing of the rebuttal i.e. Paper No.28 (ga), the respondent/tenant has also adduced the evidence of himself by filing an affidavit Paper No.33(ga), and the affidavit of Shri Aditya i.e. Paper No.34 (ga), and one Shri Sardoor Singh i.e. Paper No.36 (ga). 9. The learned Prescribed Authority, after the exchange of the pleadings, had framed three issues to be decided as to whether there exists a relationship of landlord and tenant, and the second issue was primarily based upon, as to whether the landlord at all had any bonafide need, as it was expressed in the release application. Lastly, the issue was framed pertaining to the comparative hardship. 10. While recording it's finding on the Issue No.1, a conclusion was drawn that based on the scrutiny of the notices dated 7th November 2006, i.e. Paper No.21 (ga), and the rent receipt i.e. Paper No.21 (ga), as filed by the applicant to the release application, in the proceedings before the Prescribed Authority, and the objection i.e. Paper No15(ga), filed by the defendant/tenant. Issue No.1, was decided in favour of the landlord holding thereof that there exists a relationship of landlord and tenant. Issue No.1, was decided in favour of the landlord holding thereof that there exists a relationship of landlord and tenant. However, the issue pertaining to the bonafide requirement, I am of the view that it is always a prerogative, and the choice of the landlord to provide the best of the available facility to the family members to live with dignity in the accommodation, and particularly, when the dignity, which commensurates to the status, which the landlord enjoys in the society. 11. Hence, the need as expressed by the applicant in the release application that he wanted the accommodation to sustain the status of his family, will be treated as to be a bonafide need in order to provide a comfortable living to his family members. As far as, the finding on the comparative hardship is concerned, the learned Prescribed Authority while drawing the conclusion on the said issue has recorded a finding that since in the light of the ratio laid down by the judgment, referred therein, that the respondent had failed to look for an alternative accommodation, and the finding in relation thereto, which has been recorded on the basis of the allotment application being Paper No.27(ga), dated 24.07.2017. It was found that the need of the landlord as compared to the respondent/tenant, was more bonafide and hard pressed and failure to look for an alternative accommodation would be a finding of fact, which has been recorded, therein, and hence the comparative hardship issue has been rightly decided in favour of the landlord by the learned Prescribed Authority. 12. Is this judgment dated 10th October 2017, which was put to challenge by the tenant/respondent by preferring an appeal under section 22 of the Act No.13 of 1972, before the court of District Judge, Udham Singh Nagar, if the Memorandum of Appeal dated 6th November 2017, is taken into consideration though it has been attempted in its paragraph No.13, of the Memorandum of Appeal that the notices itself suffered from defect, but the manner in which the pleadings have been modulated on the pretext that the notice was issued on account of the deficiency of the remittance of rent, it will not fall within the purview of the Act No.13 of 1972, I am of the opinion that in view of the specific intention of the Legislature by providing a provision contained under section 20 (4) of the Act. The said contention of the learned counsel for the respondent/tenant, as raised, before the court below would not be sustainable. However, after the exchange of the pleadings, the Appellate Court by the judgment dated 13th August 2018, had allowed the appeal, and as a consequence thereto, it has rejected the release application while setting aside the judgment of the learned Prescribed Authority dated 10th October 2017. 13. The learned counsel for the respondent/tenant had argued the matter from the prospective that the petitioner has preferred this writ petition under Article 226 of the Constitution of India, and hence the writ petition itself would not be maintainable. In order to respond to the arguments extended by the learned counsel for the respondent/tenant, a reference of an Article in the title head of the Writ Petition becomes irrelevant for the consideration of the actual issue involved, because it is always the subject matter, which is under consideration, which determines the ambit of exercise of powers of the Constitutional Courts, particularly when, it's the judgment of the Appellate Court, which has been passed by the courts created under the Act. It will always be within an exercise of supervisory jurisdiction over the judgment rendered by the Appellate Court or the subordinate courts. Hence, merely a reference of Article 226 of the Constitution of India, that in itself will not mitigate a Writ Petition under Article 227 of the Constitution of India, by scrutinizing the Appellate Courts judgment, which is under challenge before this court. 14. The second argument in defence, which has been taken by the respondent is that the proceedings are vitiated because the initial notice, which was issued by the landlord was for the purposes of default admittedly committed by the tenant/respondents, in remittance of the rent, but instead of proceeding on the basis of the alleged notice of default, the release application has been filed by expressing the bonafide need of the applicant to accommodate his family, as well as the servants, who were also required to be accommodated to provide a better living to the family members of the landlords family, as per the landlords social status, the law does not create that the need to provide a comfortable and better living to the family members of the landlord will not fall within the ambit of bonafide need under Section 21 (1) (a) of Act No.13 of 1972. 15. 15. I am of the view, that since the Legislature in its wisdom under the Act No.13 of 1972, has kept both the ambits open to be considered by the Prescribed Authority, a bonafide need under Section 21(1) (a) of the Act No.13 of 1972, and the issue of default under Section 20 (4) of the Act, it will not vitiate the notice which was issued under Section 20 (4) of the Act, or the release application itself, which has been filed on the basis of the bonafide need of the landlord, which will still fall to be within the ambit of Section 21 (1) (a) of the Act No.13 of 1972. 16. Since both the issues of bonafide need and default in rent, are part and parcel of self-contained Legislature, this ground taken by the learned counsel for the respondent would not be sustainable. Apart from the fact that the implications, which he is trying to attract and argue is based upon the contents of the notice which was issued by the landlord for the purposes of filing of the release on the pretext of default committed by the tenant, I am of the view that since no such specific plea was taken by the respondent/tenant in the documents which were filed by him in support thereof in the proceedings before the Prescribed Authority or in the absence of there being any specific pleadings taken to the said effect in the written statement. This argument raised by the learned counsel for the respondent that the proceedings would be vitiated on account of the contents of the notice itself could have been only considered by the writ courts in the exercise of its supervisory jurisdiction only, when the respondent had specifically pleaded and developed his case on the said foundation, which is not the circumstances available in the instant case, as altogether new plea cannot be permitted to be raised for the first time at the writ stage under Article 227 of the Constitution of India. 17. In that eventuality, for the first time, he cannot take the liberty to raise the ground about the discrepancy in the notice though it didn't existed actually in terms of the finding, which has already been recorded. Hence, the very contention and the objection raised by the respondent/tenant, is not sustainable. 17. In that eventuality, for the first time, he cannot take the liberty to raise the ground about the discrepancy in the notice though it didn't existed actually in terms of the finding, which has already been recorded. Hence, the very contention and the objection raised by the respondent/tenant, is not sustainable. Apart from it, that the release application was itself instituted way back on 29th September 2016, and there is no iota of evidence on record that at any such point of time, during the pendency of the proceedings before the Prescribed Authority, and particularly, the findings which had been recorded, in relation to which has been recorded while dealing with Issue No.3, of the comparative hardship, it rather establishes that no efforts was made by the respondent/tenant to look for an alternative accommodation, and it's not even that the reference of the allotment application, there are catena of judgments laid down, that merely filing of the allotment application under Section 16 of the Act No.13 of 1972, that itself would not suffice to come to a logical conclusion, that it was a bonafide effort made by the tenant to look for an alternative accommodation for the reason being that in the light of the judgment of the Allahabad High Court, there has had to be a positive and sincere effort made by the tenant to look for an alternative accommodation, and particularly, in the instant case when that was the reason assigned by the Prescribed Authority while allowing the release application while dealing with Issue No. 3, because tenant had failed to discharge this burden of having sincerely looked for an alternative accommodation, through a recognized procedure under law. 18. In that eventuality, it made all the more necessary for the respondent/tenant to have developed his case from the said prospective at an appellate stage. Having not done so, the Appellate Court has ventured beyond the finding, which has been recorded by the learned Prescribed Authority, and since it is the judgment of the reversal, the Appellate Court was further legally bound to have reversed the finding of facts which had been recorded by the Prescribed Authority. Having not done so, the Appellate Courts judgment cannot be sustained. Hence the same is quashed. The writ petition is allowed. Having not done so, the Appellate Courts judgment cannot be sustained. Hence the same is quashed. The writ petition is allowed. The respondents/tenants are directed to vacate the premises in question, and handover its peaceful and vacant possession to the petitioner/landlord within a period of sixty days from the date of the presentation of the certified copy of this judgment before the learned Prescribed Authority. 19. Subject to the above observations the writ petition stands allowed.