HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved Case :- RENT CONTROL No. - 166 of 2010 Petitioner :- Onkar Nath Srivastava S/O Rosan Lal Srivastava Respondent :- Additional District Judge, Barabanki & Ors. Petitioner Counsel :- Ravindra Pratap Singh Respondent Counsel :- Manish Kumar,D.C. Jain Hon'ble Anil Kumar,J.
Heard Sri R.P. Singh learned counsel for the petitioner and Sri D.C. Jain , learned counsel for the the respondents.
Controversy in the present case relates to House no. Q 690 Mohalla Kanoon Goyan, district Barabanki under the tenancy of petitioner in regard to which Sri B.N. Verma/opposite party no.3/landlord moved a release application under Section 21(1) (a) of the U.P. Urban Buildings ( Regulation of Letting, Rent and Eviction) Act (hereinafter referred to as an 'Act') on the ground that he has to retire from service on 31.7.2001 after attaining the age of superannuation and after retirement he has to vacate the building which has been provided to him in official capacity. Thereafter he want to live in the premises in question as he has no other premises in his possession.
In para-10 of the release application it has been stated that the family of the applicant consist of his wife two daughters and one son and other are co-owners/ landlords of the premises in question had no objection if the same be released in his favour.
Accordingly, a P.A. Case no. 3 of 2001 ( B.N. Verma Vs. Onkar Nath Srivastava) registered before prescribed authority/ Civil Judge( Junior Division) Brabanki in order to decide the controversy in question has framed three issues were framed namely:-
(1) Kya Prarthi vividit makan ka malik hai tatha unke evam vipakshi ke madhya kiraeydari ka sambandh hai?
(2) Kya prarthijan ki avashakta sadbhawana poorvak ha?
(3) Kya prarthijan ki tulnatmak kathinai vipakshi se adhik hai?
By order dated 22.2.2010 ( Annexure no.2) prescribed authority allowed release application holding therein that the need of applicant is more genuine in comparison to the tenant. Further, finding has also been recorded by the prescribed authority that since the date of moving of release application, no effort has been made by the tenant to search the alternative accommodation and he has not adduced any evidence in this regard.
Aggrieved by the order dated 22.2.2010 passed by prescribed authority , petitioner/ tenant filed a Rent Appeal No . 1 of 2010 ( Onkar Nath Vs. B.N. Verma) under Section 22 of the U.P. Act no. 13 of 1972.
On 27.3.2010 appellate authority passed an order directing the parties to maintain status quo but vide order dated 7.4.2010 appellate authority dismissed appeal without providing any opportunity of hearing to the petitioner/ tenant .
Aggrieved by order dated 7.4.2010 the petitioner / tenant filed Writ Petition No. 107 of 2010 ( Onkar Nath Srivastava Vs. District Judge, Barbanki and others), disposed the writ petition by order dated 19.8.2010 with the following directions:-
"Coupled with the said fact that in the present case, the appellate authority/Incharge District Judge after considering the facts of the case on merit admitted the appeal filed by the petitioner/tenant and granted a stay order to the effect that the parties are directed to maintain status-quo as exists today with certain conditions, then in these circumstances, the District Judge while considering the matter in question on 07.04.2010 exercised the coordinate power and now even if it is found on the basis of record that the petitioner has taken two adjournment which is against the spirit of the initial order dated 27.03.2010 by which the status-quo was granted in respect to the property in question and appeal was admitted, then in that circumstances the petitioner/tenant should be heard and only thereafter the impugned order shall be passed, but the said thing has not been done in the present case, as such the impugned order in question is violation of principles of natural justice.
Further, in the present case, an application for release under Section 21(1-A) of the U.P. Act no. 13 of 1972 before the Prescribed Authority/Civil Judge(Senior Division), Barabanki, has been moved by the owner-landlord/respondent no. 3 in the year, 2001. So, keeping in view the said fact, in order to balance the equity between the parties, I hereby direct the appellate authority/District Judge, Barabanki to consider and dispose of the appeal pending before him within a period of three months from today as agreed between the parties who are present today. Parties are also directed that they should not take any unnecessary adjournment.
For the foregoing reasons the impugned order dated 07.04.2010 passed by respondent no. 1, District Judge is quashed."
Thereafter, matter heard by appellate authority, by order dated 22.9.2010, appeal dismissed,hence the present writ petition has been filed.
Learned counsel for the petitioner challenged the impugned order passed by court below on the following points:-
(a) The trial court has illegally rejected amendment application moved by the petitioner and refused to bring the certain pleas on record which might help in proper adjudication of the controversy.
(b) It is well settled that the amendment ought to have been allowed liberally but the courts below have illegally refused to permit the same.
(c) The Appellate Court committed error in not issuing the commission for inspection of the premises in question so that the accommodation pre-occupied by the landlord could not come on record to adjudicate the matter properly.
(d) The court below wrongly entertained and allowed the petition filed under Section 21(1-A) of the Act no. 13 , 1972 , ignoring this very fact and plea that the landlord has already sufficient accommodation to accommodate his family members.
Accordingly, it is submitted by learned counsel for the petitioner that impugned order are liable to be set aside and writ petition be allowed.
While defending the impugned order passed by court below learned counsel for the respondents Sri D.C. Jain submits that as Sri B.N. Verma had to retire from government service on 31.7.2007, bunglow allotted to him in the official capacity , thereafter to be vacated so keeping in view the said fact before one year of his retirement, he gave a notice to the tenant to vacate the premises when no heed paid ,an application under 21(1) (a) of U.P. Act no. 13 of 1972 for release of accommodation under the tenancy of the petitioner moved.
After considering the matter on merit as per provisions as provided under the Rent Control Act,premises in question released in favour of respondent no.3/ Sri B.N. Verma by prescribed authority, appeal dismissed, so there is neither any illegality nor infirmity in the impugned orders challenged by the petitioner, coupled with the fact has been that the concurrent findings of fact recorded by the courts below that tenant has not made any effort in searching out the alternative accommodation since the date of moving of application for release of the accommodation.
He further submits that as a matter of fact order passed by the trial court/ prescribed authority rejecting petitioner's application for amendment has not been challenged and there is no irregularities on the part of appellate authority thereby no issuing commission for inspection of the building as prayed by the petitioner/ tenant at appellate stage, so the present writ petition lacks merit, liable to be dismissed.
I have heard the learned counsel for the parties and gone through the record.
Undisputed facts of the present case are that respondent (Sri B.N. Verma) retired from service after attaining the age of superannuation on 31.7.2007 and before one year of his retirement, he gave a notice to the tenant indicating therein that he intends to file an application under Section 21(1-A) of the Act for release of the premises in his favour.
Thereafter release application moved , allowed by the prescribed authority vide order dated 22.2.2010,appeal filed, dismissed vide order dated 7.4.2010 challenged by means of Writ Petition no.107 (R/C) of 2010 ( Onkar Nath Srivastava Vs. District Judge, Barabanki and others) by the petitioner, allowed by order dated 19.8.2010. Accordingly , appeal was again heard by appellate authority , dismissed vide order dated 22.9.2010.
First argument advanced by the learned counsel for the petitioner that the trial court/ prescribed authority illegally rejected the petitioner's application for amendment in order to bring the certain pleas on record, is wholly misconceived arguments coupled with the fact that order by which amendment application rejected has not been challenged by the petitioner, so same is rejected having no force also being in contravention to law as laid down by the Apex Court in the case of Revajeetu Builders & Developers Vs. Narayanaswamy and sons and others (2009) 10 Supreme Court Cases 84 when it has been held as under:-
" On critically analysing both the English and Indian Cases, some basis principles emerges which ought to be taken into consideration while allowing or rejecting the application for amendment:
(1) whether the amendment sought is imperative for proper and effective adjudication of the case;
(2)whether the application for amendment is bona fide or mala fide;
(3) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money.
(4) refusing amendment would in fact lead to injustice or lead to multiple litigation.
(5) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and (6) as a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application.
These are some of the important factors which may be kept in mind while dealing with application filed under Order 6 Rule 17. These are only illustrative and not exhaustive.
The decision on an application made under Order 6 Rule 17 is a very serious judicial exercise and the said exercise should never be undertaken in a casual manner. We can conclude our discussion by observing that while deciding applications for amendments the courts must not refuse bona fide, legitimate, honest and necessary amendments and should never permit mala fide, worthless and/or dishonest amendments."
Next submission made by the learned counsel for the petitioner that appellate court has refused to issue Commission as sought by tenant/ petitioner is also wholly misconceived and incorrect because if an application for local inspection is moved invoking the provisions as provided under Section 34(1) (g ) of the Rule 22 (f) of the Rules framed under U.P. Act no. 13 of 1972 then the local inspection or commission by court is made only in those cases where on the evidence led by the parties, Court is not able to arrive at a just conclusion either way or where the court feels that there is some ambiguity in the evidence which can be clarified by making local inspection or commission.
Local inspection or issue a commission by the court cannot be claimed as of right by any party. Such inspections are made to appreciate the evidence already on record and Court is not expected to visit the site for collecting evidence. (See:- Randhir Singh Sheoran Vs. 6th Additional District Judge, 1997(2) JCLR 860, Radhey Shyam Vs. A.D.J., Court no. 13, Lucknow and others, [2010(2) A.D.J., 758] and Sonpal Vs. 4th Additional District Judge, Aligarh and others, 1992 2 ARC, 596).
In the case of Smt. Shamshun Nisha Vs. Ist Additional District Judge, Lucknow and others 1992, (1) ARC page 423, it is held as under :
"By means of the present writ petition, the petitioner challenges the order, dated 13.05.1991, passed by Ist Additional District Judge, Lucknow, contained in Annexure No. 6 by which the petitioner's request for local inspection was rejected by the appellate Court. The appellate Court pointed out that the petitioner had been given sufficient opportunity to rebut the evidence of the expert. However, the fact is not disputed that the appeal is still pending and in appeal only an application for local inspection of the site by the Advocate Commissioner has been rejected. Therefore, in my opinion, the said order cannot be challenged in the writ petition."
The said view was further reiterated by this Court in the case following cases:-
(i) Avinash Chandra Tewari Vs. A.D.J. Court No. 3, Unnao & others, 2010 (2) ARC 84
(ii) Radha Rani Mehrotra (Smt. And 5 others Vs. Learned prescribed Authority/Civil Judge, S.D. and 2 others, 2010 (2) ARC 23
(iii) Radhey Shayam and others Vs. Additional District Judge, Lucknow and others 2010 (2) ARC 95 Further to go for local inspection or issue of commission for the proper disposal of the controversy pending is a sole prerogative of the Court to decide whether to move the same or not.
Accordingly, it is a sole domain of the Court to issue a commission or not and the local inspection or commission can not be claimed as a matter of right by a party, so arguments as advanced by the learned counsel for petitioner for issuing commission having no force and liable to be rejected.
Last arguments advanced by the learned counsel for the petitioner that court below has wrongly allowed release application thereby invoking the provisions as provided under Section 21(1-A) of the U.P. Act no.13 of 1972 is wholly misconceived arguments and have no force because from the bare reading of Section 21(1-A) of U.P. Act no.13 of 1972 which is quoted as under:-
"21. Proceedings for release of building under occupation of tenant-- [(1-A) Notwithstanding anything contained in Section 2, the prescribed authority shall, on the application of the landlord in that behalf, order the eviction of a tenant from any building under tenancy , if it is satisfied that the landlord of such building was in occupation of a public building for residential purposes which he had to vacate on account of the cessation of his employment:
Provided that an application under this sub-section may also be given by a landlord in occupation of such public building at any time within a period of one year before the expected date of cessation of his employment , but the order of eviction on such application shall take effect only on the date of his actual cessation."
It is clear that sub-section (1-A) which immediately follows after sub-section (1) of Section Section 21 of the Act is an integral part of Section 21, and it must on all authorities be read alongwith other sub-sections of Section 21 (1-A) which en grafts a deviation from the general rule contained in sub-section (1) of Section 21.
Further, in view of the Section (1-A) of the Act when upon the proof of the mere fact that the landlord was in occupation of an official residence which he has had to vacate in consequence of the release of the accommodation as a matter of course. The authorities are bound to release the accommodation under the provision without any consideration of the hardship which the tenant might suffer by the grant of the application . If the ingredients of Section 21(1-A) are there, the authority cannot so much as even inquire whether the landlord does bona fide require the accommodation in question . There is , therefore little doubt that sub-section (1-A) affects tenant in a serious way, leaving him entirely defenseless. Such a stringent provision must be subjected to a closer scrutiny with a view of finding out its true purpose in the light not of this provision, but in the extent of the other relevant provisions.
In my opinion , Section 21(1-A) was enacted for providing an immediate shelter to a landlord who is left without any accommodation in consequence of having to vacate upon cessation of his employment, a public building.
The legislature appears to have made this provision to meet the exigency arising out of the landlord being confronted with the serious problem of finding an accommodation for his residence after being deprived of the use of public building, which was allotted to him in consequence of his employment. So that the landlord might rehabilitate himself without going through the rigorous and time consuming process envisaged under Section 21(1) the legislature thought that such a landlord might be relieved of the obligation of having to establish that the bona fide requires the accommodation belonging to him or that as between him and his tenant, he would suffer greater hardship.
It appears that in a contingency covered by Section 21(1-A) the legislature presumed that the need of the landlord would be genuine and that his requirements must necessarily take precedence over those of the tenant.
In the case of Kalyan Rai Saxena Vs. The Iind Additional District Judge, Bulandshahr and others , 1982 (1) ARC 363, a Division Bench of this Court had an occasion to interpret Section 21(1-A) of the Act. While interpreting the said Section, it laid down as to what was the object of the Act. It was held as under:-
" In our opinion, Section 21(1-A) was enacted for providing an immediate shelter to a landlord who is left without any accommodation in consequence of having to vacate upon cessation of his employment a public building. The Legislature appears to have made this provision to meet the exigency arising out of the landlord being confronted with the serious problem of finding an accommodation for his residence after being deprived of the use of public building which was allotted to him in consequence of his employment, so that the landlord might rehabilitate himself without going through the rigorous and time consuming process envisaged under Section 21 (1) (a) ."
In the case of Colonel Brown Cambridge School , Dehra Dun Vs. Additional District Judge, Dehra Dun and another, 1988(2) Allahabad Rent Cases, 183 this Court has held that an application moved by a person who has to retire from service to vacate the official accommodation allotted to him is entitled to get his own premises vacated in view of the provisions as provided under Section 21(1-A) of the Act and in para 14 this Court has held as under:-
" This Act was promulgated with the object of regulating the eviction of tenants from certain class of buildings in the interest of general public, situate in urban areas. Public interest requires that persons residing in buildings should vacate the same on the cessation of their employment. The question then would arise that where would these persons go. It was in these special circumstances that the Legislature made a person for evicting tenants of these affected persons. The classification , consequently, has a rational nexus to the object sought to be achieved by the statute."
Fuhrer in the present case , concurrent finding of facts are also given by the court below that the tenant/ petitioner has not made any effort in searching out the alternative accommodation since the date of moving of application of release before the court below as per the law laid down by the Apex Court in the case of Badrinarayan Chunilal Bhutada Vs. Govindram Ramgopal Mundada, AIR 2003 Supreme Court 2713 held that if the tenant would not say that what effort has been made after filing of the release application and even thereafter the said facts are sufficient to tilt the balance of comparative hardship against the tenant.
In the case of Rajaram and others Vs. IInd Additional District Judge, Farrukhabad and others, 2006(1) ARC 829 after placing reliance in the law as laid down by the Apex in the case Badrinarayan Chunilal Bhutada (Supra) has held as under :-
" The finding of fact arrived at by the Appellate Court and sustained by the High Court is that the landlord and the tenant are both engaged in cloth business, which is being run by the two in the respective ground floors of the eastern and western wings of the building. On the sons of the landlord having come up in age, they have started the business of dealing in electronic goods. As there was no other independent accommodation available for the business of electronic goods, the same had to be commenced and accommodated in the shop in which the cloth business was being already carried on by the landlord. Thus, the two businesses , both flourishing as the evidence reveals , have been squeezed into space of one shop. ON the date of the institution of the suit, the landlord-appellant and his second son were looking after the cloth business while the electronic goods business was being looked after by the eldest and the third son of the appellant. Although , the two businesses are being run in the same premises, the landlord and his sons felt suffocated on account of inadequate space for both the businesses. A pre-existing partition on the ground floor had to be removed and the entire ground floor in the occupation of the landlord is being made use of for commercial activity and yet the space is insufficient . In the electronic goods shop TV sets, refrigerators, washing machines and other such items are required to be kept and displayed as in a showroom and for that purpose the available space is not enough. On these facts, the findings as to genuine requirement was arrived at by the Appellate Court and upheld by the High Court and rightly so in our opinion. The only question which now survives for decision is the exercise of discretion under sub-Section (2) of Section 13 of the Act."
In view of the above said fact and also taking into account , this court while exercising the judicial review cannot set aside the concurrent findings of fact which recorded by the courts below which are based on material facts on record and not perverse in nature. I do not find any irregularities or infirmity in the impugned orders which are challenged by the petitioner in the present writ petition.
For the foregoing reasons, the writ petition lacks merits and is dismissed accordingly.
No order as to costs.
Order Date :- 8.4.2011 dk/