WPMS/1801/2016 of Dr Prateek Goel Vs Sri Tilak Raj Sobati

IN THE HIGH COURT OF UTTARAKHAND AT NAINITALWrit Petition No.1801 of 2016 (M/S)

Dr. Prateek Goel ……Petitioner

Versus

Sri Tilak Raj Sobati (deceased) and others

……Respondents

Present: Mr. Nagesh Aggarwal, Advocate for the petitioner. Mr. Neeraj Garg, Advocate for the respondents.

Hon’ble Sharad Kumar Sharma, J. (Oral)

Before dwelling with the rival contentions of the parties, it becomes necessary for this Court to first to deal with the factual backdrop under which the proceedings under Section 21(1)(a) of U.P. (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter to be referred to as the “Act No.13 of 1972”), was drawn at the behest of the applicant/petitioner the landlord; herein for seeking the release of the tenanted accommodation, (which would hereinafter be called as property in dispute); on the ground of bondafinde requirement by the petitioner/landlord.

2. The property in dispute, which was under the tenancy of the respondent herein constituted as to be residential house facing West, it was the property which was situated at the ground floor which was bearing Municipal description as to be located at Nari Shilp Mandir Marg, Old Cannaught Place, Chakrata Road, Dehradun. The prescient of the property in dispute was defined in the release application, as in the release application, it showed in the East, property of Smt. Rekha Goel, in the West, public road; in the Northern property of Bihari Lal and joint open land, thereafter in the South property of Jagroshan and Mustarka Zeena (i.e.

stairs) and the property of Rekha Goyal. In the said released application as filed on 23.07.2013 before Court of Prescribed Authority/CJ(SD); one aspect which is not in controversy and also not disputed between the parties to the proceedings i.e. by the landlord and the tenant, is the one that there existed relationship of landlord and tenant amongst them, and that the need as expressed in the release application by the landlord/petitioner, was that the tenement in question was required by him for his personal need on account of the fact that since he himself being qualified medical practitioner, he wanted the accommodation in question to be released for residential purpose so as to start his medical profession and to practice in Dehradun, after the same being released in pursuance to the application filed under Section 21(1)(a) of the Act.

3. Apart from the fact that there being bundle of facts involved which has been narrated in the release application, but hereinafter what would be required to be considered by this Court would particularly be confined to the reference of need as made in para 6 of the release application to the effect that as to how the bonafide and hard pressing need, which is to be determined vis-à-vis that of the landlord, as against that of the tenant in question, particularly when the landlord himself has expressed his need that he wanted to accommodate himself for residential purpose in his own accommodation by starting his medical practice in Dehradun. The determination on the next issue would be and which has been argued too by the parties would be, as to whether the application for release filed by the petitioner, itself would fall to be within the ambit of the provisions contained under Section 21(1)(a) of the Act No.13 of 1972, or it would be

treated to have extended, its tentacles to the provisions as that contained under Section 21(1)(b) of the Act; in order to attract the applicability of the provisions contained under Rule 17, as framed under Section 41 of the Act No.13 of 1972, for the purposes of initiation of the proceedings under Section 21(1)(b) of the Act, and whether as to under the garb of the proceedings Section 21(1)(a) of the Act; can landlord to be permitted to have recourse to the proceedings under Section 21(1)(b) of the Act for getting the accommodation vacated.

4. There is no dispute nor an issue also that prior to institution of the release on 27.03.2013, the landlord has given six month’s notice to the tenant/respondent on 01.06.2011, under the first proviso contained under Section 21(1) of the Act No.13 of 1972 for vacating the premises, to the respondent/tenant. In response to the release application as referred herein, the tenant/respondent has filed his written statement on 13.01.2015; what would be relevant for consideration and while extracting the parts of the written statement in order to deal with the rival contention of the parties would be particularly the averments as made in para 2 of the written statement i.e. Paper No.18 Ga, are quoted hereunder:-

“2 ;g fd fueqZfDr izkFkZuki= dh pj.k la0 2 ds mRrj esa dFku gS fd foi{kh dh vk;q yxHkx 80 o”kZ gS rFkk og vdsyk iz’uxr edku esa fuokl djrk gSA foi{kh lh0Mh0,0&,s;jQkslZ] nsgjknwu ls lu~ 1993 esa lsokfuo`r gqvk gS rFkk mls orZeku esa yxHkx 16]000@&:0 izfrekg ias’ku izkIr gksrh gSA ;|fi foi{kh fof/k Lukrd gS rFkk mlus ,MoksdsV dk ykblasl Hkh lu~ 2000 esa fy;k gS fdUrq og viuh vf/kd vk;q gksus ds dkj.k rFkk vLoLFkrk ds dkj.k ;g O;olk; djus esa vleFkZ gSA izkFkhZ dks foi{kh dh bl n;uh; ifjfLFkfr;ksa dk Kku gS rFkk og ykypo’k foi{kh dks fnd~ o ijs’kku dj jgk gSA foi{kkh ds ikl dksbZ Hkh oSdfYid edku ugha gS rFkk u gh og oSdfYid edku ys ik jgk gSA vf/kd vk;q gks tkus ds dkj.k o vLoLFk gksus ds dkj.k foi{kh iz’uxr edku ls vU;= tkus esa vleFkZ gSA ;|fi foi{kh us fdjk;k fu;a=.k ,oa fu”dklu vf/kdkjh] nsgjknwu esa oSdfYid edku ikus ds fy;s ,d vkcaVu izkFkZuki= fn;k gS fdUrq uxj nsgjknwu dh ifjfLFkfr;ka ns[krs gq, oSdfYid edku feyuk vlaHko gSA” ;g fd fueqZfDr izkFkZuki= dh pj.k la0 2 ds mRrj esa dFku gS fd foi{kh dh vk;q yxHkx 80 o”kZ gS rFkk og vdsyk iz’uxr edku esa fuokl djrk gSA foi{kh lh0Mh0,0&,s;jQkslZ] nsgjknwu ls lu~ 1993 esa lsokfuo`r gqvk gS rFkk mls orZeku esa yxHkx 16]000@&:0 izfrekg ias’ku izkIr gksrh gSA ;|fi foi{kh fof/k Lukrd gS rFkk mlus ,MoksdsV dk ykblasl Hkh lu~ 2000 esa fy;k gS fdUrq og viuh vf/kd vk;q gksus ds dkj.k rFkk vLoLFkrk ds dkj.k ;g O;olk; djus esa vleFkZ gSA izkFkhZ dks foi{kh dh bl n;uh; ifjfLFkfr;ksa dk Kku gS rFkk og ykypo’k foi{kh dks fnd~ o ijs’kku dj jgk gSA foi{kkh ds ikl dksbZ Hkh oSdfYid edku ugha gS rFkk u gh og oSdfYid edku ys ik jgk gSA vf/kd vk;q gks tkus ds dkj.k o vLoLFk gksus ds dkj.k foi{kh iz’uxr edku ls vU;= tkus esa vleFkZ gSA ;|fi foi{kh us fdjk;k fu;a=.k ,oa fu”dklu vf/kdkjh] nsgjknwu esa oSdfYid edku ikus ds fy;s ,d vkcaVu izkFkZuki= fn;k gS fdUrq uxj nsgjknwu dh ifjfLFkfr;ka ns[krs gq, oSdfYid edku feyuk vlaHko gSA”

and also the pleading with regard to the extent of property, which the landlord is alleged, by the tenant to have had in order to mitigate and dilute his bonafide requirement as agitated by him in his release application. Another, aspect which would be required to be dealt with is in light of Explanation I to Section 21(1)(a), which is quoted hereunder:-

“(i) where the tenant or any member of his family [who has been normally residing with him or is wholly dependent on him] has built or has otherwise acquired in vacant state or has got vacated after acquisition residential building in the same city, municipality, notified area or town area, no objection by the tenant against an application under this sub-section shall be entertained.”

5. As to what would be the impact on the release application of the landlord, in the circumstances where the other members of the tenant’s family have got their own accommodation and they are residing separately in the same municipal limits. This Court is of the view that all these issues could be confined in its determination from the following view points:-

(1)Provisions contained under Section 21(1) of the Act; requiring to seek for the release of the tenanted accommodation by the landlord it also entails release of property which though even and otherwise is in dilapidated condition and still if it could be utilized for residential purposes by the landlord after its reconstruction or making necessary repair works to make it habitable as per need by the landlord. This contention is sought to be refuted by the counsel for the respondent/tenant on the premise that on account of the plea particularly that as raised by landlord in para nos.8 and 9 of the release application, the landlord himself has submitted that the tenement is in dilapidated condition and could fall down at any point of time, but the argument of learned counsel for the landlord on the contrary is that after the release of the property in question, he wants to get it

demolished and reconstructed the same in order to make the property as per the need suited to him. The argument of the petitioner’s counsel is that the said plea in para 8 in itself will not make the release application to fall within the ambit of Section 21(1)(b) of the Act. Because the said purpose as referred in para 9 to reconstruct the property and to make it habitable for himself by raising residential accommodation therein, would still continue to make the release application to fall within the ambit of Section 21(1)(a) of the Act and that itself will not change its nature to be an exclusive released under Section 21(1)(b) of the Act which would necessitate the compliance of Rule 17 of the Act. The said argument of learned counsel for the landlord/petitioner, he has sought to substantiate the same, in view of pronouncement of Allahabad High Court as reported in 1990 (2) AWC, 1508, Shree Niwas Kulshrestra vs. VI[th] Additional District Judge, District Etah, particularly the learned counsel for the petitioner/landlord had drawn the attention of this Court to the contents of para 9 of the said judgment, which is quoted hereunder:-“9. The contention that the release application was liable to be dismissed for non-compliance of Rule 17 of the Rules framed under the Act, is equally untenable. This argument is advanced forgetting that the application for release was under clause (a) of sub section (1) of Section 21 of the Act. Under this clause landlord can seek eviction of tenant on the ground that the building or any specified part thereof under the tenancy is required in its existing form or after demolition and new construction, for the occupation of landlord or any member of his family.Rule 17 has no application to such an application. It applied where the application is made under clause (b) of sub section (1) of Section 21 of the Actwhich reads; “that the building is in dilapidated condition and is required for the purposes of demolition and new construction” Under clause (b) release is not sought for the bonafie needof the landlord nor for the occupation of the landlord himself or for members of his family. When the release of an accommodation is demanded under clause (b) aforesaid on the footing that it has become unsafe for habitation or other use of the tenant on account of its dilapidated condition, or reconstruction the tenant has not only right to claim re-entry but is also entitled to allotment by virtue of the provisions contained under section 24(2) of the Act. The scope and ambit of application

of Rule is concerned to applications under Section 21/(1)(b)of the Act, is also evident from the opening part of that Rule, as it speaks of section 21(i)(b) only. It is not in dispute that the application in the instant case was filed under clause (a) of sub-section (1) of Section 21 of the Act. The fact that in the release application it is also mentioned that the disputed accommodation is required for occupation after demolition and new construction, besides starting in its existing form, does not convert the application from clause (a) to clause (b) of sub-section (1) of Section 21 of the Act. There is nothing to show that the release application in the instant case was granted on the ground of demolition, and new construction although the application made by the landlady was composite one. The condition put forward on behalf of the petitioner is accordingly, rejected.”

6. The Court is of the view that, in order to bring the scope of the application filed by the landlord under Section 21(1)(a) of the Act by the landlord, it would include within it even to satisfy the bonafide need of the landlord even by making the alteration in the dilapidated building or even by completely demolishing or reconstructing of the tenement, if it is for being reutilized by him for residential accommodation. The vary fact that in consonance to para 9 of the release application is quoted below:-

“9- ;g fd izkFkhZ lEifRr fuEufyf[kr dks fcLekjdjkdj mlesa u;s fljs ls rkehjkr djkdj mlesa fjgk;’k gsrq edku dk;e djok;sxkA”

The Court is of the view that once it mentioned the fact in its

pleading that the disputed accommodation is required for his own occupation in order to meet his personal bonafide need of residential building the said occupation is pleaded to be after demolition and raising of the new construction, apart from that it was an existing need at the time when the release application was filed by the petitioner/landlord, it does not change the complexion of need contemplated under Section 21(1)(a) into Section 21(1)(b) of the Act, as it has been sought to be argued by the respondents/tenant in the proceedings before the court below. The said

exception as contemplated in para 9 of the release for meeting his personnel use by the landlord, as to whether under the circumstances where the release application pleads particularly as in the instant case as it happens to be in para 9, (a) to demolish the construction (b) to reconstruct and (c) to use it for his residential purposes; whether at all the release application itself could be dismissed on the ground of alleged non compliance of Rule 17; by treating it as to be release application under Section 21(1)(b) of the Act.

8. In such an eventuality, particularly where the landlord in his pleadings, specifically comes up with the case that he needs the accommodation for himself after making the necessary alterations or restructuring of the property that will still bring the application to be within the provisions contained under Section 21(1)(a) Act and hence it need not to be treated as to be an application under Section 21(1)(b) of the Act No.13 of 1972, to necessitate the compliance of the provisions contained under Rule 17 of the Rules. Hence, this argument of learned counsel for the respondent/tenant that the release ought to have been filed under Section 21(1) (G), as it has been recorded by both the courts below because there cannot be camouflage pleading to bring release application under Section 21(1)(b) of the Act, under the garb of same being instituted under Section 21(1)(a) Act; is not accepted in view of the reasoning given therein in the light of the pleadings raised in para 9 of the release application, which is supported by the reasoning of para 9 of the judgment of Shree Niwas(Supra).

9. One another and more important aspect, which is to be secondly considered too by this Court is that admittedly this release application was filed by the landlord/petitioner for release of the residential accommodation as back as on 23.07.2013, though it has not been argued nor pressed by the counsel for the respondents/tenant, but in para 2 of the written statement, it has been pleaded in the swearing clause to have been made on the basis of the person knowledge, the tenant/respondents, have pleaded that after filing of the release application, he had made effort for getting the alternative accommodation “by filling an application for allotment” obviously it must be an application contemplated under Section 16 of the Act No.13 of 1972. He takes an escape that the alternative accommodation could not be allotted to him owing to the conditions of restricted availability of alternative accommodation in District Dehradun. No such argument has been extended by the tenant during the course of argument as to in what manner the efforts were made and in what manner, the so called application for allotment under Section 16 of the Act was pressed and what positive steps was taken by the tenant/respondent to look for an alternative accommodation. In the absence of there being any such argument extended by the counsel for the respondents/tenant herein it would be deemed that, the application for release filed by the landlord would be bonafide requirement and it would also further lead to an inference that as consequence of allowing of release; the comparative hardship because of no effort being made by the tenant for an alternative accommodation and the same being established by proof on record it would be presumed that the tenant/respondents are not going to suffer any

hardship as consequence of allowing of the release application in favour of the landlord/petitioner.

10. What is further more important is that the plea of so called filing of an application for allotment before the Rent Control and Eviction Officer for getting an alternative accommodation allotted as referred in para 5 of the judgment of the prescribed authority, if that itself is taken into consideration, which deals with the documents filed in support of the case by the tenant/respondent, there is no such document on record by way of an application for allotment, or the order sheet, of the proceedings under Section 16 of Act No.13 of 1972, which could be said to have been filed before the competent authority under the Rent Control Act, which has been placed on record before the court below by way of evidence and in such an eventuality and in view of the ratio laid down by the Allahabad High Court.

The issue of comparative hardship in an event of release of accommodation is decided in favour of the landlord.

11. The third question, which emerges consideration and as it has been argued by the learned counsel for the landlord/petitioner is in the light of the Explanation (i) of Section 21(1)(a) of the Act which has been quoted hereunder:-

“(i) where the tenant or any member of his family [who has been normally residing with him or is wholly dependent on him] has built or has otherwise acquired in vacant state or has got vacated after acquisition residential building in the same city, municipality, notified area or town area, no objection by the tenant against an application under this sub-section shall be entertained.” been normally residing with him or is wholly dependent on him] has built or has otherwise acquired in vacant state or has got vacated after acquisition residential building in the same city, municipality, notified area or town area, no objection by the tenant against an application under this sub-section shall be entertained.”

12. Landlord/petitioner, what he contends to submit is that there are two fold arguments and it could be interpreted also in two manners; and it is also the fact which does not stand denied by the tenant/respondent that the family members of the tenant/respondent, are residing separately, this separate living of the tenants family members is fact which has been admitted by the tenant and it is also fact, which has not been denied that they are residing within the same municipality, the only exception which could be at all attracted in the present circumstances, it would be as to whether under explanation (i) to Section 21(1)(a) of the Act; whether it was dealing with situation contemplated with regards to separate living of the family members of the tenant prior to the institution of release or after the filing of the release application, the learned counsel for the landlord/petitioner submitted that the language, which has been used under the explanation (i) to Section 21(1)(a) of the Act No.13 of 1972, is that it “has build or otherwise acquired”, in vacant state and has got vacated property lying within the same municipal area. In such type of contingency any defence by the tenant/respondents to sustain his occupancy of the tenement has been seized to be raised by him in his defence in situation when any other family member of the tenant, has acquired an accommodation within the municipal area. Since having already observed that the sons of the erstwhile tenant, who is now deceased are residing separately and are having separate living that itself since they fall to be within the ambit of the definition of family members provided under the Act, it will create an embargo as against the tenant/respondent and the substituted tenants to raise any objection, as such after the filing of the release application by the landlord/petitioner for getting the accommodation

vacated for his personal need or even after getting it altered/restructured in accordance with his requirement.

13. The issue which is required to be dealt with is and also attempted to be pressed by way of distinction by the tenant/respondents is that the accommodation of the children of the tenant, which admittedly stand occupied by them separately, is lying in Selaqui, which according to the substituted heirs of the deceased tenant/respondent, it happens to be distinct municipality than to the municipality where the tenanted accommodation is in existence, the said plea of the availability of the accommodations were lying in separate municipalities, has not been proved by the tenant or his substituted heirs, because it was burden to be discharged by them which they have raised in defence, which has not be discharged by them.

14. This Court is even otherwise of the opinion that even if that situation is prevalent though there is nothing on record as such to the contrary, still it will not be of any benefit to the tenant/respondent, the reason being that the Court is of the view that the restriction of availability of accommodation with the family members within the same municipal limits legislatively intended to provide an easy accessibility to the tenant to an available alternative accommodation with him. The word municipality as used therein will have to be reasonably construed in itself therein, that means that the settlement of the family member or an availability of alternative accommodation with the tenant is not necessarily required to be within the same municipal limit for the reason being, the said provision of

availability of an accommodation has also been followed with the availability of alternative accommodation even in, ‘the notified area or town area,’ and its implications has been widened in its applicability of an accommodation available to the family members of the tenant and since the fact of availability of accommodation itself is an admitted fact, which is not disputed hence, the tenant would be barred from raising any objection to the application under Section 21(1)(a) of the Act as such.

15. During the course of argument of the landlord/petitioner, by way of an interjection by the tenant’s counsel, he has drawn the attention of this court to the findings which has been recorded in the appellate court’s judgment that their i.e. available tenanted accommodation thus was occupied by the sons of the deceased tenant is tenanted accommodation and it is not self acquired accommodation hence would not fall for consideration under Explanation (i) to Section 21(1)(a). The said finding which has been recorded by the appellate court is perverse in its nature, apart from being contrary to the explanation (1) Note which was inserted by Act No.28 of 1976, which reads as under:-

“[Note.-For the purposes of this clause person shall be deemed to have otherwise acquired building, if he is occupying public building for residential purposes as tenant, allottee or licencee].”

16. This is so, itself because the explanation uses the word has otherwise acquired in vacant stage “this language used in explanation does not carves out distinction that it has had to be purchase only or it has to be an occupation of the property in any other capacity or nature including that as to be tenant. I am of the view that as per Note of Explanation (i) in order to attract Explanation (i), it only requires an

occupation of vacant accommodation, by the family members of the tenant, hence this finding recorded by the appellate court that it is not purchased property by the tenant or his family members, is absolutely perverse and de hors to the intention of explanation (i) of Section 21(1)(a) of the Act and also the Note Clause inserted in 1976. Yet again by way of reiteration explanation (i), does not in its specific intention excludes the defence of tenant, only in situation where family members of tenant has purchased property, there is no such specific provision or intention otherwise even, under the explanation that the self purchase is mandatory condition to deny defence to the tenant on acquiring vacant possession of property. Hence, I am of the opinion that even if there is vacant possession of an accommodation with the tenant or his family members in whatsoever capacity, if it is by any of the family members of the tenant, in view of Note Clause, to Explanation (i), the bar of explanation would come into play. The tenant would be precluded to raise any defence in opposition to the release consequently.

17. The counsel for the tenant/respondents had also submitted that as far as the landlord is concerned, his need cannot be treated as to be bonafide for the reason being that apart from the disputed tenement in question which is being sought to be released, the landlord has got other accommodation available with him including the accommodation that is available to his mother, which the tenant/respondents seeks to prevail to be within the available accommodation with the landlord in view of the availability of accommodation, which is being sought to be satisfied by attracting the provisions of definition of family contained under Sub

Section (g) of Section 2, which deals with the definition of family in relation to the tenant or the landlord, first of all this definition of family as given under Sub Section (g) of Section 2, it does not entail its specific attraction at the time or at the situation of determination of the expanse of accommodation available to the landlord or his family member or to determine his or her bonafide need, the reason being that when the explanation itself carves out the exception of availability of accommodation with the family member in relation to tenant only then the implications of Sub Section (g) of Section 2 would not be attracted for the landlord for the purposes of Section 21(1)(a) to be read with Explanation (i) as it carves an exception to defence. The logic can also be behind it is that parent of landlord even if they have their accommodation available with them that may not be an treated as to be an accommodation which is available to landlord for his residence because the parents have got their exclusive independent right to reside independently in available accommodation in whatsoever manner they feel like without introducing their children to occupy the same and also because in defence thereto the landlord in the present case has taken specific stand in his pleading that he is not in sound relationship with his mother, which could have made him available the accommodation, which otherwise belongs to his parents. Even otherwise also major child cannot force his parents to keep him or to permit him or her to reside with in the house available to the parents as its owners. The implications of bringing the mother within the definition of family as sought to be argued by the tenant/defendant respondent regarding the availability of the accommodation with the mother cannot be attracted in the present case for the reason being that the interpretation to the

definition of family members for Section 21(1)(a) of the Act, attaches word that for the attracting the definition and the ambit of family it has had to satisfy condition that he had been normally residing with him as provided under sub Clause (iii) of Section 2(g) of Act No.13 of 1972. This is not the case which has been developed or argued ever or argued ever by the tenant/respondent in his pleading, as raised in the written statement that the landlord was normally residing with the parents i.e. mother herein; when the release was filed, in the available accommodation with them in order to mitigate his release application under Section 21(1)(a) of the Act. Hence, this Court is of the view that every landlord, despite his parents may be having residential accommodation, still holds bonafide right to reside independently in the accommodation of his ownership. Ownership of accommodation with parents will never cloud his release and bonafide required of release filed under Section 21(1)(a) of ct No.13 of 1972.18. An argument, which has been raised by the learned counsel for the landlord/petitioner, it is to the effect, as to what would be the effect on the release application filed by him as against the respondent/tenant, when he i.e. the tenant has met with the demise, as to whether his i.e. tenants/respondent need as pleaded in the written statement will, still continue to survive even after the death of the tenant/respondent. The learned counsel for the petitioner/landlord submits that the need to continue to reside in the tenanted residential accommodation as agitated by the tenant to establish his bonafide need would be diluted and mitigated as soon as he i.e. the principal tenant has died. In response to it, counsel for the substituted tenant/respondents submits that the bonafide need of the

landlord or the tenant as expressed by him in the release application or in defence by the tenant would pervade, as it was prevailing at the time when release was filed and that in itself would be the situation and the need as expressed therein which has to be determined while deciding the release as it existed at the time of its filing. The ratio thereof in the said preposition had provided that, while dealing with the situation with regards to the need as expressed by the landlord in the release in the release would be that as it was prevailing at the time of filing the release. If the said proposition is to be attracted in the case of the tenant/respondent too, then too in the present circumstances where admittedly the children (i.e. substituted heirs) of the deceased/tenant when they are already residing in other independent accommodation, even if on the tenanted basis as argued, I am of the view that the death of the principal tenant himself would definitely dilute the need of the substituted tenant/heirs to continue to reside in the tenanted accommodation or anyone to continue with the tenancy as such and hence as far as the tenancy of the disputed premises is concerned, his requirement has to be considered as it prevailed at the time when he met with the sad demise because his need stands extinguished as per his own case and it was not his requirement as it prevail at the date of filing of the written statement and that too in the circumstances, which has already been narrated above, that heirs of tenant were already living separately.

19. Though not relevant for the purposes of the instant case, the counsel for the petitioner/landlord has made reference to judgment reported in 1996 (3) AWC, 1592 Dr. M.L. Nigam vs. VII[th] Addl. District

Judge, Meerut and another. Para 13, 14 and 15 of the judgment are quoted as under:-

“13. The submissions made by the learned Counsel for the Respondent No. 2 that building in question could not be released for establishing of the Clinic and the Kothi built by the Respondent No. 2 at Shastri Nagar was not residential building as the same did not have kitchen, are not acceptable to me.

14. In Makalu v. IVth Addl District Judge 1992 (2) ARC 317, it was held that:

“That lawyer's Chamber, Doctor's consultation clinic in part of the residential accommodation do not change the nature of the accommodation as the dominant use remains for the residential purposes and the professional activity is such which can be easily accommodated alongwith the use of the house for residential purposes.”

15. Similar view was taken by this Court in Devendra Dutt Kaushik v. Vth Addl District Judge 1982 (2) ARC 59. Therefore, by establishing clinic in portion of building by the Petitioner will not change the nature of the residential building into commercial building.”

which was dealing with the situation as to release which was

sought by the lawyer or doctor for opening of clinic or lawyers chamber in the residential accommodation that in itself will not make the need as to be commercial in nature because the dominant use of the accommodation thus sought to be released under Section 21(1)(a) of the Act would be of residential nature and the potential professional activity which is anticipated to be carried that is only ancillary in nature and hence it was held that the dominant use is that of residential purposes. The said ratio stands propounded on the basis of the judgment reported in AIR, 1982 (2) ARC, 59Devendra Dutt Kaushik vs. VII[th] ADJ wherein it has been held that lawyers chamber or doctor’s clinic will be treated as to be part of residential accommodation and it will not change the nature of the property

which is residential in nature into commercial, relevant part of para 10 of

the said judgment is quoted hereunder:-

“10. In Makalu v. IV[th] Addl. District Judge, 1992(2) ARC 317, it was held that:- That lawyer’s Chamber, Doctor’s consultation clinic in part of the residential accommodation do not change the nature of the accommodation as the dominant use remains for the residential purposes and the professional activity is such which can be easily accommodated along with the use of house for residential purposes.”

20. The counsel for the landlord/petitioner further makes reference with regard to substantiating his plea as raised in para 8 and 9 of the released application; as to under what circumstances release filed under Section 21(1)(a) of the Act could be taken out of the plea as raised by the tenant that invocation of Section 21(1)(a) of the Act was by way of camouflage to evade proceedings under Section 21(1)(b) of the Act and of consequential compliance of Rule 17. In support thereto, he has made reference to the judgment reported in 2007 (10) ADJ, 394 Sidh Nath Shukla vs. Judge Small Causes(Prescribed Authority) Lucknow and Others and particularly reference has made to paragraphs 4, 5 and 7 of the said judgment, which are quoted hereunder:-

“4. I have perused this document. The very first paragraph of the affidavit shows that it is the applicant herself who is the deponent and in the concluding part of the affidavit, in verification clause it is specifically mentioned that it is the plaintiff who has filed the affidavit and in the column of the deponent, it is duly signed as ‘Uma Shukla’ respondent no.3. In the circumstances, the argument that reliance has been placed on document without ascertaining the identity and the assertions made by person whose name is not disclosed, is absolutely frivolous, baseless and without any substance. The next argument is that the release applicationwas moved under Section 21(1)(a)(b) of the Act, therefore, the courts below should have ensured compliance of mandatory Rule 17 which has not been done in the instant case. This argument is also unsustainable in law. Certain conditions are required to be fulfilled which are enumerated in Rule 17 of the Rules. The four requirements are:

(i) that the building requires demolition; (ii) that the proper estimate of expenditure over the proposed demolition and new construction has been prepared;

(iii) that plan has been duly prepared and conforms to the bye-laws or regulations of the local authority or other statutory under any law in that behalf for the time being in force, and

(iv) that the landlord has the financial capacity for the proposed demolition and new construction.

5. No doubt these requirements are to be fulfilled in case the building is released under Section 21(1)(b) of the Act simplicitor but this requirement has to be reasonably interpreted, specially where the releaseapplicationis not only on the ground of it being in dilapidated condition but also for personal need under Section 21(1)(a) of the Act. This question was thoroughly gone into by this Court in the case of Binda Prasad v. IIIrd Additional District Judge, Faizabad, 1984 (2) A.R.C. 306. In the instant case, the contention on behalf of the petitioner is farfetched and judgment cannot be set aside merely because the landlady had not complied all the four conditions of Rule 17 of the Rules framed under the Act. In fact the tenant has no right to raise any objection for the reason that his son has already acquired another house in Rajajipuram which is posh locality of Lucknow and Explanation to the 4[th] proviso of Section 21 of the Act comes into play in the instant case. For ready reference, Explanation to the 4[th] proviso is being quoted below:

7. It is also noteworthy that the tenant-petitioner has failed to show whether he has made any effort to look for an alternative accommodation during pendency of the instant proceedings. In view of various decisions of the Apex Court in the case of Badri Narayan Chunni Lal Bhutade v. Govind Ram Ram Gopal Mundada, AIR 2003 SC 2713 and also this Court, Heera Lal v. 6[th] Additional District Judge, Bareilly and others, 2006(1) A.R.C. 142 and Hasmat Ali v. 6[th] Additional District Judge, Kanpur, 2005 ADJ 216, the tenant has no right to plead hardship. The balance of ‘comparative hardship’ tilts in favour of the landlord.”

21. Particularly reference may be had to para 5 of the said judgment of Sidh Nath Shukla (Supra) which yet again has dealt with the situation as to under what conditions and circumstance, the release application could be termed to be as an application contained under Section

21(1)(b) of the Act and not that as under Section 21(1)(a) of the Act. It is further held that even if it is reportedly presumed that an application has been filed under Section 21(1)(a) of the Act No.13 of 1972, indenting for non adherence of the Rule 17; though it is not applicable in the instant case, yet since it has already held that the application of release still would be under Section 21(1)(a) of the Act, so called plea of non compliance of Rule 17 would not be attracted under the circumstances of the present case where it is to meet personnel need of residence after reconstruction.

22. In response to the arguments, the learned counsel for the tenant/respondents has made reference to judgment reported in AIR (SC) 1561; 2014, Kalpesh Hemantbhai Shah vs. Manhar Auto Stores through its Partners & others, the said ratio as propounded by the Hon’ble Apex Court was from the view point that as to what would be the scope of and ambit of exercise of powers by the High Court under Article 226 and 227 of the Constitution of India, as to whether that would entail re appreciation of evidence or it could only rectify or consider the legal error which is apparent on the face of the record. The said preposition as laid in para 11 of the said judgment is quoted hereunder:-

“11. It is well settled that the High Court under Article 227 of the Constitution of India has jurisdiction to correct the error if apparent on the face of the record. But in the present case the respondents failed to bring on record as to what was the error committed by the District Judge in deciding the appeal. The claim of the appellant to use the premises for personal necessity is question of fact which was decided by the District Judge on appreciation of evidence. There was no mixed question of law and fact involved in the case, much less question of law. The comparative hardship of tenant and landlord is question of fact. In absence of any question of law involved with such facts, the High Court can not alter such finding under Article 226 of 227 of the Constitution of India.” Constitution of India has jurisdiction to correct the error if apparent on the face of the record. But in the present case the respondents failed to bring on record as to what was the error committed by the District Judge in deciding the appeal. The claim of the appellant to use the premises for personal necessity is question of fact which was decided by the District Judge on appreciation of evidence. There was no mixed question of law and fact involved in the case, much less question of law. The comparative hardship of tenant and landlord is question of fact. In absence of any question of law involved with such facts, the High Court can not alter such finding under Article 226 of 227 of the Constitution of India.”

23. Yet again with all profound reverence to the said ratio as laid down by the Hon’ble Apex Court, the said judgment does not carve out an exception that even in those cases where even if it is not considered judgment and the Court has not recorded or considered the provisions, either in perversity in the sense of;

(a) rejecting the release on the ground of non-compliance of Rule 17;

(b) rejecting the release on the ground that parents of the landlord has sufficient accommodation because the parents were having accommodation within the municipal area;

(c) Not taking note of the “Note”, to Explanation (i) of Section 21(1)(a);

(d) Not considering approximately the effect of family member of tenant having other residential accommodation; tenant having other residential accommodation;

(e) Effect of failure to consider, and record finding to the effect of failure to establish that tenant had looked for an alternative accommodation on filing of the release etc.

24. These are the facts which are to be interpreted based on the evidence adduced by the parties. If there is non consideration of evidence or where there is perverse consideration of evidence, then embargo as laid in Para 11 of Kalpesh (Supra) the judgment of the Hon’ble Apex Court, on which reliance has been placed by the learned counsel for the tenant/respondent would not be attracted because apparently herein the interpretation given by the tenant/respondents were absolutely based upon mis-consideration and non-consideration of the pleadings and evidence raised in the release application itself and hence the ambit of securitization

of the subordinate courts judgment under Article 227 of the Constitution of India, is wider enough to deal with the aspect of perversity even also if it entails non-appreciation or mis-appreciation of the evidence on record.

25. In the case at hand since few vital questions which was legally required to be considered was:-

1.Whether the application under Section 21(1)(a) of the Act could be deemed an application under Section 21(1)(b) of the Act on the ground of interpretation given by the appellate court was pure question of law, which was required to be considered, which has not been done, in the light of personal need pleaded in para 9 of release. be deemed an application under Section 21(1)(b) of the Act on the ground of interpretation given by the appellate court was pure question of law, which was required to be considered, which has not been done, in the light of personal need pleaded in para 9 of release.

2.As to in what manner the explanation given to Section 21(1)(b) of the Act was to be considered in the given facts of the case was yet again question of law which was to be considered. The courts have not taken note of the NOTE substituted to Explanation (i) as inserted by Act No.28 of 1976. the Act was to be considered in the given facts of the case was yet again question of law which was to be considered. The courts have not taken note of the NOTE substituted to Explanation (i) as inserted by Act No.28 of 1976.

3.Whether despite of the plea having been taken regards failure to look for an alternative accommodation and failing to substantiate the same by evidence, the efforts made therein, would yet again entail an appreciation of law only. look for an alternative accommodation and failing to substantiate the same by evidence, the efforts made therein, would yet again entail an appreciation of law only.

4.Property of the mother of the landlord cannot be considered for deciding release on the ground of bonafide need of residence by landlord. deciding release on the ground of bonafide need of residence by landlord.

26. Hence, I am of the view that this judgment is of no avail to the tenant/respondents, because the limitation of exercise of powers under Article 227 of the Constitution of India does not shut the door of High Court to appreciate the apparent illegality infirmity committed by both the courts below even if it is concurrently made hence, this judgment is of no benefit to the counsel for the respondent/tenant. The counsel for the respondent had made further reference to AIR 1988 Supreme Court 1422, Ram Dass vs. Ishwar Chander and others. Para 7 and 8 are quoted hereunder:-

7. On the first contention that the revisional powers do not extend to interference with and upsetting of findings of fact, it needs to be observed that, subject to the well-known limitations inherent in all revisional jurisdictions, the matter essentially turns on the language of the statute investing the jurisdiction. The decisions relied upon by Shri Harbans Lal, deal, in the first case, with the limitations on the scope of interference with findings of fact in second-appeals and in the second, with the limitation on the revisional powers where the words in the statute limit it to the examination whether or not the order under revision is "according to law." The scope of the revisional powers of the High Court, where the High Court is required to be satisfied that the decision is "according to law" is considered by Beaument C.J. in Belt and Co. Ltd. v. Waman Hemraj, AIR 1938 Bom 223 case referred to with approval by this Court in Hari Shankar v. Girdhari Lal Chowdhury, AIR 1963 SC 698.But here, Section 15(5) of the Act enables the High Court to satisfy itself as to the "legality and propriety" of the order under revision, which is, quite obviously, much wider jurisdiction. That jurisdiction enables the court of revision, in appropriate cases, to examine the correctness of the findings of facts also, though the revisional court is not "a second court of first appeal"(See Dattonpant Gopalvarao Devakate v. Vithalrao Marutirao), AIR 1975 SC 1111.”

Referring to the nature and scope of the revisional jurisdiction and the limitations inherent in the concept of 'revision' this Court in Ranalakshmi Dyeing Works and Ors. v. Rangaswamy Chettier, (1980) 2 Ren CJ 165 at p.167 : (AIR 1980 SC 1253 at p.1254) observed:

...2. "Appeal" and "revision" are expressions of common usage in Indian statutes and the distinction between "appellate jurisdiction" and "revisional jurisdiction" is well known though not well defined. Ordinarily, appellate jurisdiction involves rehearing, as it were, on law as well as fact and is invoked by an aggrieved person. Such

jurisdiction may, however, be limited in some way as, for instance has been done in the case of second appeals under the CPC and under some Rent Acts in some States. Ordinarily, again, revisional jurisdiction is analogous to power of superintendence and may sometimes be exercised even without its being invoked by party. The extent of revisional jurisdiction is defined by the statute conferring such jurisdiction....Revisional jurisdiction as ordinarily understood with reference to our statutes is always included in appellate jurisdiction but not vice-versa. These are general observations. The question of the extent of appellate or revisional jurisdiction has to be considered in each case with reference to the language employed by the statute....”

The criticism of Sri Harbans Lal that it was impermissible for the High Court in its revisional jurisdiction to interfere with the findings of fact recorded by the appellate authority, however erroneous they be, is not, having regard to the language in which the revisional power is couched, tenable. In an appropriate case, the High Court can reappraise the evidence if the findings of the appellate court are found to be infirm in law.

8. Now to the second contention. The High Court was of the view that certain findings recorded by the Appellate Authority on the question of the bonafides of the requirement of the landlords were based on material which was not quite relevant. Secondly, the High Court took into account certain subsequent events brought on record. In regard to the first aspect, the High Court observed:

“...According to the learned Appellate Authority there was no evidence on record to prove that the landlords were ten brothers since their father had not come in the witness-box to depose in this regard. This approach of the learned Appellate Authority is without wrong and illegal. There was nothing to disbelieve Ishwar Chander when he says that they are ten brothers. No question was put to him in the cross-examination to challenge the said statement of his....”

The High Court noticed that so far as the premises which were said to be in the occupation of the Ishwar Chander (respondent no.1) were concerned, the owner of those premises was seeking resumption of possession. Further, in respect of the accommodation in the hands of the farther, there were already proceedings for eviction against him binding decision in the High Court.

In regard to the subsequent events which the High Court took notice of it said:

“....Thus, what has to be seen is whether the accommodation in their occupation is sufficient for their requirements or not. Of course, out of the four landlords, one is married and the others were unmarried when the ejectment application was filed in the year 1977.

However, about seven years have passed since then. Mean-while, Surinder Kumar landlord has also been married and he has got one son aged 2 years, whereas Subhash Chand has also been recently married in March, 1984, as per the affidavit of Hukam Chand, father of the landlords, dated 27th May, 1984. Thus, there was nothing on the record to show that the present accommodation in occupation of the landlords was sufficient to meet their requirements....”

Courts can take 'cautious-cognizance of the subsequent-events in order to mould the relief. The High Court did that.' No fault could be found with that.”

and 1995 (1) ARC 15, Ram Prakash vs. Shri Ram and others.

Para16 of the judgment is quoted hereunder:-

“16. The contention that the Supreme Court in exercise of its Appellate Jurisdiction under Article 136, or for that matter this Court in exercise of its jurisdiction under Article 226 of the Constitution, could not direct release of an accommodation where the ingredients of Section 21 of the Act are satisfied, is simply untenable. There is no warrant for the contention that the only power vested in this Court and the Supreme Court is to ask the Prescribed Authority or the Appellate Authority to release an accommodation, and till such orders are passed by them under Section 21 or 22 of the Act, the verdict of Apex Court or this Court could not be executed under Section 23 of the Act. For, so doing would amount to an abdication of the extraordinary jurisdiction conferred on this Court under Article 226, and the overriding powers of the Supreme Court in Article 142 of the Constitution. As stated above, the bonafide need of the landlord having been finally upheld, and the question of comparison of hardship not arising in view of Explanation (i) to Section 21, the prayer of release of the building stood accepted, and irrespective of any requirement of formal order by the Prescribed or the Appellate Authority, the petitioner-tenant was liable to be evicted and the respondent-landlord put in possession.”

from the view point that as to what would be the scope of judicial scrutinization of the writ jurisdiction under Article 227 of the Constitution of India; particularly when scrutinization is made to the appellant or the revisional judgments, as passed by the subordinate courts. After having carefully through the said judgment, it cannot be put to its strict application in the circumstances of the present case because it was dealing with the

proceedings contemplated under East Punjab Rent Restrictions, Act and it is not an argument of the respondents’ counsel that the legal implications under which the impugned judgments have been passed was in parlance or in similarity to the provisions which prevails in the East Punjab Rent Restriction, Act. The scope of judicial scrutinization of appellant or the revisional jurisdiction in the exercise of writ jurisdiction under Article 227 of the Constitution of India, I am of the view that when there is legal apparent error on the face of record, when there is perversity in the judgment, when law has not been considered approximately, which does not entail an appreciation of evidence, the provision of Article 227 of the Constitution of India which is supervisory in nature as against the judgment of the subordinate courts could not be circumscribe its consideration of its implications to correct the apparent error of perversity or of law as rendered by the courts below and hence this judgment too I am not agreeing in the manner it has been placed by the respondents’ counsel before this Court.

27. Lastly, the judgment relied by the learned counsel for the respondent/tenant is the judgment reported in 2013(1) ARC, 498, Prabha Rani vs. Aligarh Sarrafa Committee Sarrafa Bazaar & Another. Para 6

of the judgment is quoted hereunder:-

“6. The scope of judicial review in such matters where the orders of courts below are assailed before this Court in writ petition under Article 226/227 of the Constitution is very limited. This power involves duty on the High Court to keep the inferior courts and tribunals within the bounds of their authority and to see that they do what their duty requires and that they do it in legal manner. But this power does not vest the High Court with any unlimited prerogative to correct all species of hardship or wrong decisions made within the limits of the jurisdiction of the Court or Tribunal. It must be restricted to cases of grave dereliction of duty and flagrant abuse of fundamental principle of

law or justice, where grave injustice would be done unless the High Court interferes.”

28. The said judgment of the Coordinate Bench of the Allahabad High Court was dealing with the implications drawn from concurrent judgment rendered by the subordinate courts, as it has already been observed above and even in the light of the judgment of Ranjit Singh’s case as reported in (2004) 3 Supreme Court Cases, 682 Ranjeet Singh vs.

Ravi Prakash. Para 4 of the judgment is quoted hereunder:-

“4. Feeling aggrieved by the judgment of the Appellate Court, the respondent preferred writ petition in the/High Court of Judicature at Allahabad under Article 226 and alternatively under Article 227 of the Constitution. It was heard by learned Single Judge of the High Court. The High Court has set aside the judgment of the Appellate Court and restored that of the Trial Court. perusal of the judgment of the High Court shows that the High Court has clearly exceeded its jurisdiction in setting aside the judgment of the Appellate Court. Though not specifically stated, the phraseology employed by the High Court in its judgment, goes to show that the High Court has exercised its certiorari jurisdiction for correcting the judgment of the Appellate Court. In Surya Dev Rai v. Ram Chander Rai and Ors., this Court has ruled that to be amenable to correction in certiorari jurisdiction, the error committed by the Court or Authority on whose judgment the High Court was exercising jurisdiction, should be an error which is self-evident. An error which needs to be established by lengthy and complicated arguments or by indulging into long-drawn process of reasoning, cannot possibly be an error available for correction by writ of certiorari. If it is reasonably possible to form two opinions on the same material, the finding arrived at one way or the other, cannot be called patent error. As to the exercise of supervisory jurisdiction of the High Court under Article 227 of the Constitution also, it has been held in Surya Dev Rai that the jurisdiction was not available to be exercised for indulging into re-appreciation or evaluation of evidence or correcting the errors in drawing inferences like court of appeal. The High Court has itself recorded in its judgment that - "considering the evidence on the record carefully" it was inclined not to sustain the judgment of the Appellate Court. On its own showing, the High Court has acted like an Appellate Court which was not permissible for it to do under Article 226 or Article 227 of the Constitution.”

29. If it is read in parlance with the judgment of the Coordinate Bench of the Allahabad High Court, the only scope, which has been left open to be interfered in writ jurisdiction under Article 227 of Constitution of India is as against the concurrent judgments is scope of perversity or wrongful interpretation of law by subordinate courts, which is situation prevailing in the present case and hence it is fit case which carves out an exception for interference under Article 227 of the Constitution of India. Consequently, while holding that in the absence of there being any plea and subsisting the argument pertaining to making an effort for looking for in an alternative accommodation after filing of the release by the landlord in 2013, that in itself will create an absolute embargo as against the tenant to raise any plea in defence at the time of determination of bonafide need or comparative hardship of the landlord consequently, the writ petition is allowed. The impugned orders are quashed.

30. The tenant is directed to vacate the premises within period of 30 days from the date of receipt of the certified copy of the judgment with all arrears of rent and damages for the period if any and handover the vacant peaceful possession to the petitioner landlord.

Arti

(Sharad Kumar Sharma, J.) 03.12.2019