Mahtab Husain vs Iiird Addl. Dist. Judge Kheri & ...
2021 Latest Caselaw 11177 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

AFR
 
Reserved
 

 
Case :- RENT CONTROL No. - 7699 of 2019
 
Petitioner :- Mahtab Husain
 
Respondent :- Iiird Addl. Dist. Judge Kheri & Ors.
 
Counsel for Petitioner :- Mohammad Aslam Khan
 
Counsel for Respondent :- Upendra Kumar,S.Saxena
 

 
Hon'ble Vivek Chaudhary,J.

1. Present writ petition is filed by the petitioner-tenant against the judgment and order dated 20.8.2014 passed by the Prescribed Authority as well as order dated 3.1.2019 passed by the appellate authority, whereby the release application of respondent no.3-landlord is allowed and the order dated 20.8.2014 is affirmed.

2. The dispute is with regard to a shop under tenancy of the petitioner for which, a release application was filed by respondent no.3-landlord, claiming that both his sons are not having any job and are at the age of marriage, therefore, in the said shop, he intends to engage his sons for carrying on business of computer, mobile phones and other related equipment and materials.

3. Both the courts below have found the need of respondent no.3-landlord bona fide and genuine and directed for eviction of of the petitioner from the shop.

4. I have heard for the petitioner Sri Mohd. Arif Khan, learned Senior Advocate, assisted by Sri Mohd. Aslam Khan and for respondent no.3, Sri Samarth Saxena, learned Advocate and perused the record.

5. The first submission, challenging the impugned orders, raised by learned Senior counsel for the petitioner, is that before moving of application under Section 21(1)(c) of U.P. Act No.13 of 1972 (for short ''the Act of 1972'), respondent no.3 had moved an application under Section 16 of the Act of 1972, claiming that petitioner is an unauthorized occupant and, therefore, the landlord cannot raise both the arguments simultaneously, that, petitioner is a tenant as well as, that, he is an unauthorized occupant. Thus, both the proceedings simultaneously cannot be held and, therefore, the application under Section 21 of the Act of 1972, is liable to be rejected. For the said purpose, learned counsel for the petitioner has relied upon the judgment in the case of Ravi Shanker vs. Additional District Judge II, Kanpur and others, reported in 1979 ARC 273 and Smt. Suman Lata vs. Prescribed Authority (Munsif), Etawah and others, reported in 1985(2) ARC 454.

6. I have gone through the said judgment and I find that the fact of the case of Ravi Shanker (supra) are entirely different from the facts of the present case. Paragraph-2 of the said judgment notes the facts, which reads:

"2. In this case, the dispute is about one shop of the aforesaid building which had been let out to one Sant Saran. The petitioner filed suit No.1046 of 1976 against Sant Saran and another for ejectment on the ground that as Sant Saran had illegally sub-let the shop to Maiku, he was liable to ejectment. During the pendency of the suit before the Civil Court, Respondent No.3 Ram Shankar Shukla made an application for the allotment of the shop under Section 16 of the U.P. Act No.13 of 1972, on the ground of deemed vacancy. His case was also that as Sant Saran allowed the shop to be occupied by a person, who was not a member of his family, the shop was to be treated as vacated."

7. Therefore, in the said case, there was no application filed under Section 21 of the Act of 1972 for release of the property along with an application under Section 16. Thus, the said judgment is not applicable to the facts of the present case.

8. So far as the judgment in the case of Smt. Suman Lata (supra) on which reliance is placed by learned counsel for the petitioner, is concerned, the same is only a judgment running in three paragraphs, which reads as follows:

"1. Notice of this petition was accepted on behalf of respondent Nos. 2 to 8 by Sri V.N.L. Katiyar, Advocate.

2. This petition is directed against the order dated 11-7-1984 passed by the Prescribed Authority, Etawah. The landlords respondents No.2 to 8, who are the owners of the premises in dispute, filed an application under Section 21(1)(a) of Act No. 13 of 1972. It was averred in the application that the tenant Hulas Rai Bhagan Dass has closed their business and vacated the premises after subletting the premises to respondent No.10 Smt. Jagrani. It was further averred in the application that the landlords do not accept Smt. Jagrani as subtenant and she is in unauthorised occupation. Since there was no relationship of landlord and tenant, the application under Section 21 is not maintainable. The landlords in such circumstances have alternative remedy under the Act. The impugned order passed by the Prescribed Authority therefore deserves to be quashed.

3. The writ petition is allowed. The impugned order dated 11-7-1984 is set aside but there will be no order as to costs. It would be open to the landlords to take such proceeding which is permissible under the law."

9. There is no law discussed or declared by the Court, therefore, same is not a judgment in the eyes of law and merely an observation of the Court.

10. The issue as to whether the proceedings can be simultaneously proceeded with, i.e., under Section 21 as well as under Section 16 of the Act of 1972, is considered at length in number of judgments. Reference can be made to the case of Smt. Ganga Devi vs. District Judge, Ghaziabad, 1980 ARC 335, wherein the Court has made the following observations:

"Having heard learned counsel for the parties, I am of opinion that the contention of the learned counsel for the petitioner is well founded and has to be accepted. The learned District Judge is of the view that once the jurisdiction of the Rent Control and Eviction Officer is invoked under Section 16 of the aforesaid Act, and the matter becomes pending before him, the Prescribed Authority would have no jurisdiction thereafter to proceed under Section 21 of the Act. I do not agree with this broad and sweeping statement of the law. There is no warrant for such a conclusion either on the plain language of Sections 21 and 16 of the aforesaid Act or even in the scheme underlying the Act. Section 21 of the Act, in my judgment is available so long as the tenant is holding on the to the building in question and is in lawful occupation thereof. The provisions of Section 21 of the Act are applicable against who may be described as a sitting tenant. The mere fact that the matter relating to declaration of vacancy and allotment of the building in question happens to be pending for adjudication before the Rent control and Eviction Officer does not automatically deprive the Prescribed Authority of the jurisdiction to deal with an application under Section 21 of the Act. The position would, however, be different if after final adjudication of vacancy, the building is allotted to some one. Section 21 will have no application in that contingency, for in that eventuality the continued occupation of the tenant wold be unlawfull and the tenant would be deemed to have ceased to occupy the building by virtue of Section 13 of the aforesaid Act which provides that after a building is allotted or released under Section 16, no person shall occupy the same, and if he does so in contravention of the order of allotment or release, he would be deemed to be an unauthorised occupant of such building. In such a case, it is obvious that there would be no question or necessity of a landlord seeking an order of eviction against a tenant under Section 21 of the aforesaid Act. Nor can the tenant be characterised, in that eventuality, as a sitting tenant."

11. In T.C. Rekhi vs. Prescribed Authority, Nainital, 1983 (2) ARC 223, the landlord filed a release application under Section 21(1)(a) during pendency of a writ petition whereunder he had challenged the order of the Rent Control and Eviction Officer, setting aside the release order passed in his favour under Section 16(1)(b) and remitting the matter for a fresh consideration. The tenant challenged the maintainability of release application filed by the landlord under Section 21 exactly on the same ground. The argument was repelled by the following observations:

".................The argument of learned counsel for petitioner that permitting the landlord to take proceedings u/s. 21(1)(a) and Section 16(b) amounts to abuse of process of law cannot be accepted. There is no specific bar in the Act prohibiting a landlord from filing an application u/s. 21(1)(a) if he has already filed an application u/s. 16(1)(b). True in a case where order declaring vacancy has become final probably it might not be possible to file an application u/s. 21(1)(a) as the person against whom it is filed ceased to be tenant by operation of law. But it would not be the same in a case where the application has been filed when the matter is still pending adjudication. As has been seen above Section 16(1)(b) application has not been decided on merits as yet. To say in the circumstances that application u/s. 21 was not maintainable is not correct."

12. In Munni Lal vs. Prescribed Authority, Agra, 1992 ACJ 789, this Court explained the difference in causes of action for initiating proceedings under Section 16(1)(b), Section 21(1) and Section 20 in the following words:

"6. A close scrutiny of the provisions of the Act would show that the causes of action for initiating proceedings under Section 16(1)(b) or under Section 21(1) or for instituting a suit for eviction of a tenant are entirely different. In proceedings under Section 21(1) the tenant asserts that he is in occupation of the building and the landlord also admits the said fact. In proceedings under Section 16(1)(b) though the tenant says that he is continuing in occupation of the building and is in lawful occupation thereof the landlord asserts that on account of one of the acts enumerated in sub-section (1), (2) or (3) or Section 12 of the Act, done by the tenant he shall be deemed to have vacated the building within the meaning of sub-section (4) thereof. Thus in such a proceeding the landlord seeks to rely upon the legal fiction created by sub-section (4) of Section 12 of the Act. Therefore, there can be no confliction the facts which have to be alleged and proved by a landlord for getting an order in his favour while initiating proceedings under Section 16(1)(b) for under Section 21(1) of the Act."

13. Similar view has been taken by this Court in Buddu Lal alias Budh Ram vs. District Judge, Allahabad, 1998 (1) ARC 597, by holding that there is no provision in the Act, which bars moving of an application under Section 21(1)(a) even where a deemed vacancy under Section 12 of the Act may have occurred. The considerations which weighed with the Court while coming to such a conclusion are contained in paragraph 6, which reads:

"6. The main argument of the learned Counsel for the petitioner is that once the landlord himself came with the case that the petitioner-tenant was not residing in the tenanted accommodation and was actually residing at 60, Akhara Man Khan accommodation, there occurred a deemed vacancy as per his own admission and, therefore, the only course open for him was to move an application under Section 16 of the Act and application under section 21(1)(a) of the Act was not legally maintainable. This argument of the learned counsel for the petitioner must be rejected out rightly as not tenable. It may be relevant to mention here that in his application under Section 21(1)(a) of the Act, the landlord made an averment that the tenant-petitioner was not in need of the disputed accommodation as he has started residing at 60, Akhara Man Khan, Allahabad. From this averment it cannot be inferred either on fact or in law that the petitioner no longer remained the tenant of the landlord. So long as tenancy subsists it is always open for the landlord to more an application under Section 21(1)(a) of the Act. It was also open for the landlord to have approached the Rent Control & Eviction Officer under Section 16 of the Act for the release on the ground that the accommodation should be deemed to be vacant by legal fiction under the provisions of Section 12 of the Act. It is true that a different consideration weigh with the authorities while considering an application under Section 21(1)(a) and an application under Section 16 of the Act. In an application moved under Section 21(1)(a) besides providing bona fide need, the landlord has also to show that he will suffer a greater hardship than that of the tenant. Such a comparison of hardship is not at all required to be gone into in an application under Section 16 of the Act."

14. Taking into consideration all the aforesaid judgments in the case of Lakshmi Traders, Akbarpur Mandi and others vs. Navin Rastogi and another, (2019) 132 ALR 652, this Court again reaffirmed the long settled law that both the proceedings can be simultaneously held.

15. Further, admittedly, the proceedings which were initiated under Section 16 of the Act of 1972 were dismissed and even the revision against the same was also dismissed. Learned counsel for the petitioner has argued that the same are pending before the High Court, being Writ Petition No.82 (RC) of 1992.

16. Learned counsel for respondent no.3 has placed before this Court documents to show that the said writ petition itself stands decided on 8.12.2004. He has informed the Court that the said writ petition stands dismissed. Therefore, it is wrong to suggest that there are any proceedings under Section 16 of the Act of 1972 pending before this Court at this stage. Thus, even otherwise, there is no force in the submission of learned counsel for the petitioner and the proceedings under Section 21 of the Act of 1972 are not maintainable as proceedings under Section 16 are pending.

17. The next submission of learned counsel for the petitioner is that on 28.2.2005, a notice was given by the landlord and thereafter, the release application was filed on 16.10.2008, therefore, for around three years after giving notice, he did not proceed with the filing of the release application and thus, his need is neither bona fide nor genuine.

18. It is incorrect to make any such presumption merely because after giving notice, for certain period, the landlord did not file the release application. So far as the notice is concerned, the same is not filed by the petitioner before this Court. There is only a vague averment made in Para-8 of the writ petition. No such ground was raised before the courts below. Even presuming that after giving the notice, landlord took some time in filing the release application, the same would not put any bar on his right to file release application. There could be so many reasons; he may be trying to settle his sons otherwise, may be presuming the tenant would vacate the property, may be looking for some alternative livelihood or any such other reasons. Since there is no bar under law upon the landlord in filing the release application, for which he is not even required to serve a notice under Section 21 of the Act of 1972 upon the tenant, merely because he has given notice and thereafter taken time in filing the release application would not bar the same. There is no force in the said submission of learned counsel for the petitioner.

19. The next submission of learned counsel for the petitioner is that both the courts below were required to look into the aspect that the shop in question could be bifurcated and divided in a manner that need of both the parties may be fulfilled.

20. The said right is being claimed by the petitioner on the basis of Rule 16(1)(d) read with Rule 16(2) of U.P. Urban Building (Regulation of Letting, Rent and Eviction) Rules, 1972.

21. A bare perusal of Rule 16(1) shows that it provides for part release in respect of residential premises. For residential premises, the said Rule makes it mandatory for the Prescribed Authority to decide the issue of part release. But no such provision is made under Rule 16(2), which is in respect of commercial building. The said Rules are again considered in number of judgments of this Court. One such case is reported in 2015 (3) ARC 24: Vijay Sethi vs. Anil Kumar Gupta and others, wherein this Court has taken into consideration the said Rules as well as law settled by this Court and held:

"4. It is clear from the rule that there is a distinction made by the Legislature in framing the two sets of the Rules, Rule 16(1) is applicable to residential premises, whereas, Rule 16(2) is applicable to non-residential premises. The application in the present case is for release of the non-residential accommodation, therefore, Rule 16(2) would apply. A perusal of Rule 16(2) will demonstrate that there is nothing like Sub rule (1)(d) of Rule 16. In this view of the matter, the argument is not available to the learned counsel for the petitioner, therefore, this Court declines to entertain the argument for the reason that the argument was not raised either before the Prescribed Authority, or before the appellate authority, therefore, it cannot be raised for the first time before the writ court."

22. Thus, the aforesaid ground raised by learned counsel for the petitioner has no force and is rejected.

23. It is further submitted by learned counsel for the petitioner that before the appellate court, a submission was made by the petitioner-tenant that he is looking for an alternative accommodation, but he is not getting the same. The said statement is wrongly treated by the appellate court to be an admission of the petitioner with regard to bona fide need of the landlord. Thus, the appellate court has committed an illegality in making such a presumption.

24. I have perused the order passed by the trial court as well as order passed by the appellate court. There are detailed findings of fact with regard to bona fide need of respondent no.3 with regard to his sons as well as on hardship. The said observation is only one of the observations made by the appellate court, other than that, there are detailed discussions made by both the courts below. Therefore, there is no force in this submission also of the learned counsel for the petitioner.

25. Learned counsel for the petitioner further submits that the court below has wrongly rejected the applications moved by the petitioner with regard to interrogatory and cross-examination by different orders, which ought to have been allowed.

26. No doubt, any interim order by which, applications are decided, which may impact the rights of a party to a case, can be challenged by him while challenging the final order. But while filing a writ petition, record of the courts below is not summoned in normal course, like in an appeal, therefore, it is incumbent upon the parties challenging the said interim orders, to file the same before the Court. None of the said orders, by which applications of the petitioner were rejected by the court below, are filed along with the writ petition. There is also no ground raised for challenging the said orders or such relief sought. Therefore, during course of argument before this Court, the petitioner cannot be now permitted to say that he is challenging the said orders. Therefore, I do not find any force in the submission of learned counsel for the petitioner.

27. Lastly, a feeble attempt is made by learned counsel for the petitioner that since no counter affidavit is filed by respondent no.3, therefore, his writ petition should be allowed.

28. No doubt, there are judgments, which provide that uncontroverted pleadings in a plaint can be taken to be correct. However, in the present case, the petitioner is required to challenge findings of both the courts below. Merely his statement that the findings are bad, would not make them bad. He is required to prove from the record that any material illegality or irregularity is committed by the courts below or the finding in impugned orders are perverse. The petitioner has failed to do the same.

29. In view thereof, even the aforesaid submission of learned counsel for the petitioner is bound to be rejected and is rejected.

30. In view of the aforesaid discussions, I find no force in the present writ petition. It is accordingly dismissed.

[Vivek Chaudhary,J.]

Dated: October 04, 2021

Sachin

After the aforesaid order was passed, learned Senior Advocate Sri Mohd. Arif Khan assisted by Sri Mohd. Aslam Khan, learned counsel for petitioner, appeared and prays that the petitioner may be granted some time to vacate the premises.

Learned counsel for respondent no.3 has no objection in case a reasonable time is granted to the petitioner provided, he files an undertaking before the court below by way of an affidavit that he shall vacate the premises within the time granted by this Court.

In view thereof, nine months time is granted to the petitioner to vacate the premises provided, he files an affidavit before the Prescribed Authority to the effect that he shall vacate the premises without causing any hindrance before expiry of nine months from this date and he shall also pay rent to respondent no.3 regularly every month. In case of violation of said condition, the same shall be amongst other things, treated to be a violation of undertaking given by him to this Court.

[Vivek Chaudhary,J.]

Dated: October 04, 2021

Sachin/Rajneesh