Anil Kumar Singh vs Iind Additional Distt.Judge ...
2022 Latest Caselaw 1338 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

RESERVED
 
Court No. 26								A.F.R.
 
Case :- WRIT - A No. - 1000074 of 2012
 
             RENT CONTROL No. - 74 of 2012 (Old Number)
 
Petitioner :- Anil Kumar Singh
 
Respondent :- IInd Additional Distt.Judge Hardoi And 3 Ors.
 
Counsel for Petitioner :- Ganga Singh
 
Counsel for Respondent :- C.S.C.,Akhlaq Ali, Rajendra S. Kushwaha, Sharad Pathak, Shyam Mohan
 

 
Hon'ble J.J. Munir, J.

1. This writ petition is directed against concurrent refusal of an application for release under Section 21(1)(a) of The Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U.P. Act No. 13 of 1972) (for short 'the Act') by both the Courts below.

2. An application for release was moved under Section 21(1)(a) of the Act by Anil Kumar Singh, seeking release of House No. 167, situate at Mohalla Sarai Thok Purvi, Pargana Bangar, Tehsil and District Hardoi that was in the tenancy occupation of Brijendra Pal Singh. The release application was registered on the file of the Prescribed Authority/Civil Judge, Hardoi as P.A. Case No. 11 of 1989. This application was instituted way back in the month of August, 1989 before the Prescribed Authority by Anil Kumar Singh alone, setting up a case of bona fide need and comparative hardship in his favour. Later on, Anil kumar Singh's father Surendra Pal Singh was also impleaded as a co-applicant, applicant no. 2 to the application, in order to obviate certain objections that Brijendra Pal Singh raised about the right of Anil Kumar Singh to maintain the proceedings on ground that it was Anil Kumar Singh's father who was the landlord and not Anil Kumar Singh.

3. Anil Kumar Singh passed away pending this petition and his heirs and LRs, to wit, Shitanshu Singh Parmar and Priyanshu Singh Parmar have been brought on record as petitioners nos. 1/1 and 1/2. Anil Kumar Singh and his heirs and LRs shall hereinafter be referred to as 'the landlord', unless the context requires an individual reference. Brijendra Pal Singh, tenant, also passed away pending this petition and his heirs and LRs too have been brought on record. They are four in number and arrayed as respondent nos. 3/1, 3/2, 3/3 and 3/4 to this petition. Brijendra Pal Singh shall hereinafter be referred to as 'the tenant' which would include reference to his heirs and LRs, unless the context otherwise requires. In the latter case, the tenant concerned shall be referred to by name.

4. The landlord came up with a case in his application for release that House No. 161, situate at Mohalla Sarai Thok Purvi, Pargana Bangar, Tehsil & District Hardoi (for short 'the demised premises') is a property of the landlord, his father Surendra Pal Singh and brothers, who constitute a Joint Hindu Family. The landlord's father was the Karta of the Joint Hindu Family and the tenant was in occupation of the demised premises that were let out by the landlord's father at a monthly rent of Rs. 20/-. There was a partition of the joint family and its properties where the demised premises had fallen to the landlord's share. The partition was brought about on 10.05.1989 through a family settlement. According to the family settlement, the landlord had become the owner of the demised premises and, therefore, its landlord vis-a-vis the tenant. The fact of this family settlement is well within the tenant's knowledge. The landlord's father, Surendra Pal Singh had permitted him to reside in a part of his house on condition that he could stay there until time that amicably or by taking recourse to legal proceedings, he got the demised premises vacated.

5. The landlord further pleaded that he hails from a respectable and educated family and is an Advocate practicing at the District Court, Hardoi. He is in bona fide need of the demised premises for his residence and that of his family members, besides establishing his chamber. It was also asserted by the landlord that the part of his father's house that he was occupying with the latter's permission is not sufficient for his needs and he is facing hardship. The landlord has in his family his wife, who does not get along with her mother-in-law and sisters-in-law, resulting in squabbles in the family. In turn, the landlord has to suffer the resultant tension and anxiety, which adversely impact his profession. It is also pleaded by the landlord that he apprised the tenant about the difficulties faced by him on account of shortage of accommodation and the need for space to establish his chamber. He requested the tenant to vacate the demised premises. The tenant initially agreed to vacate, but later on, acting on the ill-advice of some residents of the locality, refused.

6. The tenant then instituted Original Suit no. 258 of 1989 before the Munsif West, Hardoi for permanent injunction, agitating the issue of his right to secure an electricity connection in the demised premises and indicating an apprehension of forcible dispossession. By the aforesaid acts of the tenant, it became evident that he was not minded to vacate the demised premises. The demised premises are located on the Hardoi Bilgram Road and are suitable for the landlord to establish his chamber. The landlord further asserted that he had a pressing need for release of the demised premises. The tenant, on the other hand, had no such need. He was employed as a Teacher with the Raja Rookamagarh Inter College and was well-off. He was in a position to buy land any time and construct his own house thereon. Two of the tenant's daughters were married during the pendency of the appeal arising from the order refusing release. The son and the daughter-in-law of the tenant were employed in government jobs on good positions. They stayed with the tenant. All three of them together have an income of more than Rs. 20,000/- per month.

7. It must be remarked here that this part of the assertion in the application for release appears to have been brought in through amendment made during proceedings of the Appeal. The further case pleaded is that in the city of Hardoi, there are lots of land and constructed houses available under the Awas Vikas Yojana, any of which the tenant was in a position to buy. That apart, there are lots of houses available for rent, which the tenant could settle in according to his need. However, the tenant has made no efforts to search for an alternate accommodation. There is a specific pleading brought in through amendment in paragraph No. 10A of the release application in the alternate to the effect that in case the family settlement is not accepted, bona fide need of Surendra Pal Singh, the landlord's father and applicant no. 2 to the release application, may be considered in support of the case for release.

8. The tenant filed a written statement dated 15.11.1989. He generally denied the landlord's case in the parawise reply, except the fact asserted in paragraph no. 6 of the application to the effect that the tenant had instituted a suit. It was also not denied that the tenant was a Teacher with the Raja Rookamagarh Inter College, Hardoi. In the additional pleas, the tenant came up with a case that there was no landlord-tenant relationship between him and the landlord. The landlord was not the owner of the demised premises and, therefore, the release application at his instance was not maintainable. The landlord's father, Surendra Pal Singh, was the owner and landlord of the demised premises and the tenant held the said premises on Surendra Pal Singh's behalf. The tenant was let out the demised premises pursuant to an order of allotment dated 10.03.1967 by Surendra Pal Singh. He was in occupation ever since. The tenant paid rent to Surendra Pal Singh, which he had paid up to the month of October, 1989. The demised premises had no electricity connection. The tenant attempted to get one installed, but in retaliation, the landlord's father attempted to get the demised premises forcibly vacated. This compelled the tenant to institute Original Suit No. 258 of 1989 before the Court of the Munsif West, Hardoi. Some injunction was granted in the said suit irked over which Surendra Pal Singh caused the present application for release to be instituted setting up a false case of a family settlement. The landlord's father, Surendra Pal Singh had a house in Hardoi built on a plot of 100 x 300 ft. The house had 20-22 rooms. Surendra Pal Singh had three members in his family, that is to say, the landlord and his mother, that is to say, Surendra Pal Singh's wife. The landlord had no need for the demised premises. He does not come to Court everyday, but attends infrequently. Some houses of his, the landlord's father has recently got vacated from various tenants, which he has let out again. By contrast, the tenant had a family of eight members. He had two daughters of marriagable age. The tenant needed money in abundance to settle his daughters' marriage. The tenant did not have the necessary wherewithal to buy a house or land and construct a house. The tenant also pleaded that he would not get another house in the city of Hardoi at a rate as cheap as the demised premises. The tenant had a greater need for the demised premises whereas the landlord had none.

9. It was also asserted by the tenant that once vacated, the demised premises would be let out by the landlord at a monthly rent of Rs. 100/-. It is for the said reason that the landlord had instituted the instant proceedings for release on concocted facts. The further case of the tenant is that there was no partition between the landlord, his father and brothers, and the demised premises have not fallen to the landlord's share. The tenant does not have any alternative accommodation in the city of Hardoi except the demised premises. In the event, the demised premises were released, the tenant would face immense hardship, whereas by refusal of the release application, the landlord would not face any. There is also a detail of the accommodation available with the landlord, which according to the tenant, he could utilize to establish his chamber. It is on the foot of all these facts that the tenant resisted the landlord's application for release. The landlord, in support of his case, filed his own affidavit bearing Paper No. 16 Aa, an affidavit of one Mohd. Ali, Paper No. 11 Aa, an affidavit of one Zakir, Paper No. 18 Aa and a rejoinder affidavit of Anil Kumar Singh, the landlord. The tenant filed his affidavits bearing Paper Nos. 28 Aa and 68 Aa, besides those of one Abid and another Satendra Pal Singh, Paper Nos. 29 Aa and 69 Aa, respectively. On behalf of the landlord, an affidavit of Surendra Pal Singh, applicant no. 2, Paper No. 63 Aa was also filed.

10. The Prescribed Authority, by its judgment and order dated 09.10.1991, dismissed the release application. The aforesaid judgment was appealed by the landlord to the District Judge of Hardoi, sitting as the Appellate Authority, under Section 22 of the Act. The Appeal was registered on the file of the learned District Judge as Rent Appeal No. 20 of 1991. The said Appeal, upon assignment, came up for determination before the learned Additional District Judge, Second, Hardoi on 28.03.2020. The Appeal was dismissed and the judgment of the Prescribed Authority affirmed.

11. Aggrieved, this writ petition was filed by the landlord on 10.05.2000 before this Court, arraying the tenant as respondent no. 3 and Surendra Pal Singh, the landlord's father and applicant no. 2 to the release application as respondent no. 4. Apparently, Surendra Pal Singh, respondent no. 4 is a proforma party, as no relief has been claimed against him.

12. No counter affidavit has been filed on behalf of the respondent no. 3, as the record would show, though time was granted to file a counter affidavit on 14.03.2019 and 17.04.2019 and a supplementary counter affidavit on 17.07.2019 with a stop order. There is a counter affidavit, however, on behalf of respondent no. 4 dated 16.09.2000, which is obviously one by the proforma respondent and not the tenant.

13. Heard Mr. Ganga Singh, learned Counsel for the landlord and Mr. Sharad Pathak, Advocate appearing for the tenant.

14. This Court must remark at this stage that the parties addressed this Court on the merits of their case, irrespective of the fact that the landlord, who had set up his need, passed away pending this petition. His heirs and LRs who have been substituted, urge the same case that Anil Kumar Singh, the deceased-landlord had all along pleaded. May be, if Anil Kumar Singh were alive, for the need set up by him and the evidence on record, conclusions very different from the Authorities below could possibly have been recorded. But, that is not to be. Here, the landlord has not left behind a member of his family within the meaning of Section 3(g) of the Act. There is considerable quarrel about the issue whether the landlord was unmarried, or was married but his wife deserted him shortly after marriage, never to come back again. The landlord has said in his application for release that he was married and had a wife, who did not get along with his mother and sisters. The tenant in his affidavit dated 11.09.1990 filed before the Prescribed Authority has stated thus:

"7. यह कि विवादित मकान की कोई आवश्यकता प्रार्थी अथवा उसके पिता को नही है क्योकि उनके पास संलग्न नक्शा नजरी के अनुसार मकानियत है तथा उनके परिवार में मात्र 3, सदस्य सुरेन्द्र सिंह एवं उनकी पत्नी एवं पार्थी स्वयं रहता है तथा प्रार्थी की पत्नी शादी में एक बार के बाद दुवारा कभी हरदोई नही आकर रही प्रार्थी स्वयं खाना अपनी माँ का बनाया हुआ खाता है तथा प्रार्थी के माता पिता ने अलग रहने का कभी भी जोर नही दिया है क्योकि उनकी सेवा स्वयं प्रार्थी करता है।"

15. The landlord in his affidavit dated 22.09.1990 has denied the aforesaid assertion in the following terms:

"4- यह कि विपक्षी का यह भी कथन कि मुझ शपथी की पत्नी उसके साथ नही रहती है तथा मुझ शपथी हरदोई में अधिवक्ता व्यवसाय नही करता है बिलकुल गलत है।"

16. Surendra Pal Singh, the landlord's father, in his affidavit dated 25.02.1991 has stated:

"4- यह कि शपथकर्ता के तीनों पुत्रों की शादिया हो गयी है तथा परिवार बढ़ जाने से शपथकर्ता व उसकी पत्नी व बहुओं व पुत्रों में अक्सर विवाद हो जाता था तथा उनमें वैमनस्ता बढ़ रही थी अत: पारिवारिक शांति व मान मर्यादा बनाए रखने हेतु शपथकर्ता एवं शपथकर्ता की पत्नी तथा पुत्रों के मध्य दिनाँक 10-5-89 को मौखिक पारिवारिक समझौता हो गया था और उक्त मौखिक पारिवारिक समझौता की यादास्त हेतु एक मेंमोरेन्डस भी तहरीर किया गया था जिसकी नोटरी से प्रमाणित फोटों कापी शपथकर्ता के समक्ष है तथा एक प्रति प्रार्थी अनिल कुमार द्वारा न्यायालय में दाखिल की गयी है जो शामिल पत्रावली है।"

17. Pending this petition, the landlord passed away on 12.08.2020 and a substitution application to bring on record his heirs and LRs was moved by Sitanshu Singh Parmar and Priyanshu Singh Parmar, since allowed by this Court. The heirs and LRs are the sons of the landlord's brother and they claim on the basis of a will dated 19.06.2020 left by the deceased-landlord. In paragraph no. 5 of the application for substitution duly supported by an affidavit of Sitanshu Singh Parmar, it has been stated:

"5. That the petitioner during his life time executed a registered Will in favour of the applicants as they were taking care of their uncle i.e. petitioner as such on the basis of the registered Will dated 19.06.2020 applicants are only sole legal heirs of deceased petitioner as such applicants deserve to be substituted in place of petitioner, as petitioner was issueless, having no wife. True Photostat copy of the registered Will dated 19.06.2020 is being annexed herewith as Annexure No. 2 to this affidavit."

(Emphasis by Court)

18. Apart from the aforesaid contention about the marital status of the landlord, what is evident is that assuming that the landlord was married at some point of time, his widow never came forward to seek substitution and allowed his nephews to be substituted as the heirs and LRs. For the limited purpose of the present petition, therefore, it has to be held that the landlord was married for a while, who had separated from his wife early in life and the wife was not staying with him at the time of his death. Even if she had a subsisting marriage that has not been severed by divorce, entitling her to be substituted by virtue of being a member of the landlord's family, she has never come forward to assert that right. Whosoever was the landlord's wife, her existence is so obscure that even her name has nowhere figured on the record. The clinching point is that it is the landlord's nephews who have come forward to apply as his heirs and LRs without objection from any quarter and have been substituted on record. Therefore, it is they who have to be heard as the ones representing the landlord's interest in the present proceeding for release.

19. Mr. Ganga Singh, learned Counsel for the landlord submits that his heirs and legal representatives have stepped into his shoes and are entitled to pursue the application for release in the same right as the landlord. He submits that whatever bona fide need the landlord had pleaded would enure to the benefit of the legal representatives who now represent him.

20. Mr. Sharad Pathak, learned Counsel for the tenant submits that whatever bona fide need was set up in the release application, stands effaced, because the landlord, pending this petition, has passed away. It is submitted that the landlord was an Advocate and required the demised premises to establish his chamber. His heirs and LRs are not entitled to pursue the application for release on the basis of the need set up by the landlord. It is submitted that these proceedings must be held to have outlived their purpose and office and the heirs and LRs of the landlord be required to institute fresh proceedings on the basis of whatever kind of bona fide need, if at all, they wish to plead.

21. This Court has keenly considered the rival submissions advanced by learned Counsel for both parties.

22. The specific need that the landlord set up has come to an end with his life that the long course of these proceedings have defeated by sheer lapse of time. Even if a member of the landlord's family, within the meaning of Section 3(g) of the Act were alive, the prayer for release could have been considered because the landlord had sought release for the purpose of his residence and to set up his chamber. The bona fide need for the purpose of the landlord's residence would include the interest of a person who was a member of his family, particularly one who was residing with the landlord, within the meaning of Section 3(g) of the Act. Here, the landlord's wife was not staying with him and upon his death, has not come forward to seek substitution in his stead.

23. The heirs and LRs, who have been substituted, claim on the basis of a registered will dated 19.06.2020. It is the case of the heirs and LRs themselves set out in the affidavit that they have filed, in support of the substitution application, that they are the landlord's nephews. They are the sons of his brother Vishnu Pal Singh. No doubt, they have stepped into the landlord's shoes, but the landlord's bona fide need cannot enure to their benefit. If the landlord's widow or a son had asked to pursue release for the purpose of his/ their residence, being members of his family as defined under Section 3(g) of the Act, they would be entitled to maintain the release application. This would be so because a member of the landlord's family would be sharing the landlord's bona fide need for residential purpose. Here, the heirs and LRs who have come on record are the sons of the landlord's brother and claim through a testamentary disposition. Thus, if the heirs and LRs of the landlord do have a case of bona fide need of their own, it would be generically different and unconnected to the landlord's case. If the heirs and LRs of the landlord have a case of bona fide need as aforesaid, they would be free to pursue it by instituting appropriate proceedings before the Prescribed Authority or other Court of competent jurisdiction, as may be advised. However, so far as the present writ petition is concerned, no relief can be granted in favour of the heirs and LRs of the landlord.

24. In the result, subject to the above clarification about the rights of heirs and LRs of the landlord, this writ petition fails and is dismissed.

Order Date :- 25.4.2022

Brijesh Maurya/ Anoop