Munna Lal Agrawal vs Sri Mani Ram Gupta And Others
2019 Latest Caselaw 991 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 
A.F.R.
 
Court No. - 19
 

 
Case :- WRIT - A No. - 60096 of 2009
 

 
Petitioner :- Munna Lal Agrawal
 
Respondent :- Sri Mani Ram Gupta And Others
 
Counsel for Petitioner :- Sanjay Agrawal,B.N. Agarwal
 
Counsel for Respondent :- K.K. Dubey,K.P.Tiwari
 

 
Hon'ble Manoj Kumar Gupta,J.

Heard Sri Sanjay Agrawal, counsel for the petitioner and Sri K.P. Tiwari counsel for the respondents.

An interesting point arises for consideration in the instant petition. The question is whether a landlord can seek eviction of tenant under Section 21 (1) (a) of U.P. Act No.13 of 1972 (for short 'the Act') on the ground that the building in his tenancy is required for demolition and construction of a new market complex with more number of shops so as to fetch higher rent and thereby augment his income.

The petitioner is the owner and landlord of Building No.147 Laxmanganj, Jhansi popularly known as Ram Gopal Market comprising of several shops. Five shops in the said market are in the tenancy of the respondent-tenants. The petitioner applied for eviction of the respondent-tenants under Section 21(1)(a) of the Act. It is alleged that the total amount of rent being fetched from shops in the tenancy of the respondent-tenants is Rs.390/- per month. The petitioner, who is an advocate, has not been very successful in profession, therefore he wants to augment his income and for such purpose he would construct a new commercial complex, after demolishing the existing one. It will have shops in the basement, ground floor and first floor and help him in augmenting his income. It is also vaguely asserted that there is paucity of residential accommodation with him. The relationship between his wife and daughter-in-laws is strained resulting in mental tension to him and his wife. It is admitted in the release application that five shops on the ground floor are lying vacant. It is alleged that in one of these shops, there exists a mazar of Syed Baba. It is also admitted that behind the market, there is residential building of the petitioner.

The respondent-tenants Mani Ram Gupta, Arun Kumar Singh and Awadh Naresh Agrawal, who were opposite parties 1, 3 and 4 to the release application filed joint written statement contending that the alleged need for demolition and new construction of a commercial complex in place of the existing one is wholly beyond the scope of Section 21(1) (a) of the Act. The alleged need is not bonafide, as the landlord himself admits that five shops are still lying vacant. Each son of the landlord is occupying four rooms and the landlord himself is in possession of five rooms and one hall. The landlord is also having huge monthly income from another commercial building in mohalla Parwaran. Recently the landlord had inducted one tenant in a shop which was previously in the tenancy of Brahma Kumari Ishwariya Vishwavidyalaya, but the possession whereof was obtained by the landlord for his bonafide need in Case No.147. It was let out on a rent of Rs.1500/- per month.

The Prescribed Authority held that the release application is not maintainable under Section 21(1)(a). The petitioner has no bonafide need as otherwise he would not keep five shops on ground floor in vacant state. The family of the landlord has got sufficient residential accommodation in its possession and that they do not require additional accommodation for residence. The comparative hardship is also in favour of the respondent-tenants. The appellate court has concurred with the findings returned by the Prescribed Authority and rejected the appeal.

The sole submission of learned counsel for the petitioner is that the courts below have erred in holding that the release application is not maintainable under Section 21(1)(a) of the Act. According to him, it is not necessary for the landlord to even disclose nature of business which he proposes to carry on from the shop in respect of which release is sought. He further submitted that a landlord has got indefeasible right to augment his income and in that regard in case he wants to demolish the existing building and construct a new one in its place, the need cannot be held to be malafide or the application not maintainable under Section 21 (1)(a).

On the other hand, learned counsel for the respondents submitted that the courts below have rightly rejected the release application as beyond the scope of Section 21(1)(a). He further stated that although there are concurrent judgements in favour of the respondent-tenants but the tenants are still ready to pay rent at the rate of Rs.500/- per month for each shop in their possession.

The relevant part of Section 21(1) reads as follows :-

"21. Proceeding for release of building under occupation of tenant.- (1) The prescribed authority may, on an application of the landlord in that behalf, order the eviction of a tenant from the building under tenancy or any specified part thereof if it is satisfied that any of the following grounds exists namely-

(a) that the building is bona fide required either in its existing form or after demolition and new construction by the landlord for occupation by himself or any member of his family, or any person for whose benefit it is held by him, either for residential purposes or for purposes of any profession, trade or calling, or where the landlord is the trustee of a public charitable trust, for the objects of the trust :

(b) that the building is in a dilapidated condition and is required for purposes of demolition and new construction"

A plain reading of the provisions would show that under clause (a), the landlord can pray for eviction of tenant from the building under his tenancy where it is bonafide required either in its existing form or after demolition and new construction by the landlord for occupation by himself or any member of his family, or any person for whose benefit it is held by him, either for residential purposes or for purposes of any profession, trade or calling. Under clause (b), the release is sought not for occupation by himself or any member of his family but for the purposes of demolition and new construction as the building is in dilapidated condition.

It is not in dispute that the release of the building is being sought under clause (a) and not under clause (b). No doubt, the provision permits the landlord to seek release of the building in its existing form or after demolition and new construction. However, in either case, it should be required for occupation by "the landlord himself or any member of his family". The alleged need to demolish the existing market and construct a new one, to augment rental income, is definitely not for occupation of the building by the landlord himself or any member of his family, either for residential purposes or for purposes of any profession, trade or calling.

It is apposite to take note of Section 24 also which provides as under :-

"24. Option of re-entry by tenant.- (1) Where a building is released in favour of the landlord and the tenant is evicted under section 21 or on appeal under section 22, and the landlord either puts or causes to be put into occupation thereof any person different from the person for whose occupation according to the landlord's representation, the building was required, or permits any such person to occupy it, or otherwise puts it to any use other than the one for which it was released, or as the case may be, omits to occupy it within one month or such extended period as the prescribed authority may for sufficient cause allow from the date of his obtaining possession or, in the case a building which was proposed to be occupied after some construction or reconstruction, from the date of completion thereof, or in the case of a building which was proposed to be demolished, omits to demolish it within two months or such extended period as the prescribed authority may for sufficient cause allow from the date of his obtaining possession, then the prescribed authority or, as the case may be, the District Judge. may, on an application in that behalf within three months from the date of such act or omission, order the landlord to place the evicted tenant in occupation of the building on the original terms and conditions, and on such order being made, the landlord and any person who may be in occupation thereof shall give vacant possession of the building to the said tenant, failing which, the prescribed authority shall put him into possession and may for that purpose use or cause to be used such force as may be necessary.

(2) Where the landlord after obtaining a release order under clause (b) of sub-section (1) of section 21 demolishes a building and constructs a new building or buildings on its site, then the District Magistrate may, on an application being made in that behalf by the original tenant within such time as may be prescribed, allot to him the new building or such one of them as the District Magistrate after considering his requirements thinks fit, and thereupon that tenant shall be liable to pay as rent for such building an amount equivalent to one per cent per month of the cost of construction thereof (including the cost of demolition of the old building but not including the value of the land) and the building shall, subject to the tenant's liability to pay rent as aforesaid, be subject to the provisions of this Act, and where the tenant makes no such application or refuses or fails to take that building on lease within the time allowed by the District Magistrate, or subsequently ceases to occupy it or otherwise vacates it, that building shall also be exempt from the operation of this Act for the period or the remaining period, as the case may be, specified in sub-section (2) of section 2."

The provision makes it amply clear that a landlord after seeking release of the building under Section 21(1)(a) has to necessarily occupy it himself or through member/s of his family, either for residential purposes or for purposes of any profession, trade or calling, but is not entitled to let out the same to fetch a higher rental income. Even under clause (b) where the release is not granted on the ground of bonafide need of landlord or any member of his family but for the purposes of demolition and new construction, the sitting tenant has been given right of re-entry on a rent to be settled by the District Magistrate. He cannot directly let out the newly constructed building, without the tenant failing to exercise his right of re-entry.

Concededly, in the instant case, the only ground on which release was sought, was for construction of a new commercial complex so as to fetch higher rental income. This, in considered opinion of the Court, would not be a need falling within the ambit of Section 21(1)(a) of the Act. This Court, therefore, finds no illegality in the view taken by the courts below. However, as per statement made by learned counsel for the respondent-tenants, the respondent-tenants would be liable to pay rent at the rate of Rs.500/- per month for each shop in their tenancy since the month of April, 2019.

The petition stands disposed of accordingly.

Order Date :- 12.3.2019

skv

(Manoj Kumar Gupta, J.)