Ashok Kumar Kesarwani vs 6Th Additional District Judge ...
2022 Latest Caselaw 257 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

RESERVED
 
A.F.R.     
 
Court No. - 6							  
 

 
Case :- MATTERS UNDER ARTICLE 227 No. - 872 of 2019
 

 
Petitioner :- Ashok Kumar Kesarwani
 
Respondent :- 6th Additional District Judge Court No 5, Allahabad and others
 
Counsel for Petitioner :- Vishal Khandelwal, Prakash Chandra Gupta
 
Counsel for Respondent :- Prem Sagar Verma, Arvind Srivastava, Kunal Shah, Madan Mohan
 

 
Hon'ble J.J. Munir,J.

1. This petition is directed against an order of Mr. Ramesh Chandra, the 8th Additional District Judge, Court No.5, Allahabad passed in Rent Control Appeal No.10 of 2018, dismissing the said appeal and affirming the order of the Prescribed Authority/ Additional Civil Judge (Senior Division), Court No.14, Allahabad, allowing the landlord's 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)1.

2. An application for release under Section 21(1)(a) of the Act was made by Deepak Tandon and Shekhar Tandon, both sons of the late Manmohan Tandon, seeking release of a part of residential accommodation bearing premises No 18/15, Hastings Road, 1/5 Nyay Marg, Tandon Quarters, Allahabad (now Prayagraj), as detailed at the foot of the application. The aforesaid accommodation, that shall hereinafter be referred to as the property in dispute, is in the tenancy occupation of Ashok Kumar Kesarwani. Kesarwani is a tenant in the property in dispute at a monthly rent of Rs.520/-, besides water tax and house tax. The property in dispute was let out to Kesarwani's father, the late Kundan Lal Kesarwani for residential purposes. Kundan Lal Kesarwani lived in the property in dispute during his lifetime and left behind him Ashok Kumar Kesarwani, who is the opposite party to the application for release and the petitioner here, besides two other sons and daughters. The two other brothers of Ashok Kumar Kesarwani, who shall hereinafter be referred to as 'the tenant-petitioner', moved away from the property in dispute and settled elsewhere in Allahabad. The tenant-petitioner's sisters got married and have settled down in their matrimonial homes. The late Kundan Lal Kesarwani passed away some 20 years prior to institution of proceedings for release. The tenant-petitioner has inherited the tenancy and stays in the property in dispute along with his family. The tenant-petitioner manages a General Merchant and Grocers Shop located 25 metres away from the property in dispute. The tenant-petitioner's shop aforesaid is housed in the premises of one Smt. Chanda Rani Tandon, an aunt of the the two landlords, Deepak Tandon and Shekhar Tandon. Pending proceedings before the Courts below, Shekhar Tandon has passed away and is represented on record before this Court by his two sons, Ayush Tandon and Utkarsh Tandon, besides his widow Smt. Archana Tandon. Deepak Tandon is arrayed as respondent no.3 to the petition. The heirs of Shekhar Tandon and Deepak Tandon shall hereinafter be referred to as 'the landlord-respondents' in case of a collective reference; in case of an individual reference, the landlord concerned shall be mentioned by name.

3. It is the landlord-respondents' further case that the tenant-petitioner has built a house of his own bearing Premises No. 62/30/6 B, Nawab Yusuf Road, Allahabad and has moved to the aforesaid house of his after vacating the property in dispute. For all practical purposes, the tenant-petitioner has moved out of the property in dispute and holds it in namesake, as it carries meagre rent. The tenant-petitioner has placed his lock on the property in dispute in order to retain possession thereof. It was the case of Deepak Tandon and Shekhar Tandon that their mother is very old and stays with them at their residential premises located at 47/33, Lukarganj, Allahabad. The distance between the landlord-respondents' residence and that of their business premises is about 3 kilometers. Deepak Tandon owns a firm by the name of Shubham Fluent Controls and Dynamics, whereas Shekhar Tandon owns a business by the name of Tele Links. Both the businesses are housed in parts of premises owned by Smt. Chanda Rani Tandon, an aunt of Deepak Tandon and Shekhar Tandon.

4. The landlord-respondents are doing business in rented accommodation that is located at a distance of 100 metres for Deepak Tandon and 25 metres for Shekhar Tandon from the property in dispute. Deepak Tandon and Shekhar Tandon have to stay in their business premises in connection with their business from 9:00 a.m. to 9:00 p.m. Both of them are turning old and to spend 12 hours and more at work causes exertion and tension. Deepak Tandon is a heart patient and has been advised by Doctors to eschew excessive labour and tension. The passage between the business premises of Deepak Tandon and Shekhar Tandon and their house involves negotiating the Railway Over-bridge, which is plagued by extraordinary traffic congestion leading the two brothers to face extreme inconvenience and difficulties.

5. It is the landlord-respondents' case that Deepak Tandon has filed P.A. Case No. 20 of 2011 against Rajesh Kumar Gupta, who is in occupation of accommodation abutting the tenant-petitioner. That accommodation is sought release of by Deepak Tandon for business's purposes. The said relief has been granted by the Prescribed Authority and the Appellate Authority, but the case was pending before this Court when the present release application was moved. Likewise, another P.A. Case was filed against a different tenant by Deepak Tandon and Shekhar Tandon, that is to say, Rajendra Kumar Abbi, who was in occupation of a shop, also sought release of for business purposes.

6. It is the pleaded case of the landlord-respondents that they made another release application being P.A. Case No. 6 of 13, Deepak Tandon and another vs. Smt. Saroj Anand, seeking release of part of the house in her possession on the ground of personal need for residential occupation for themselves and their families. It is the landlord-respondents' further case that in future they desire to have a house that was next to their office and business premises. For the present, the two landlords, Deepak Tandon and Shekhar Tandon said that they bona fide required the property in dispute for the purpose of lunch and rest during the afternoon, as it was close by to their business premises. If available, it would obviate obviate the necessity for the two brothers negotiating the traffic jam to make it to their residence located at Lukerganj everyday for lunch and rest.

7. It is the landlord-respondents' further case that the tenant-petitioner's need for the property in dispute has been effaced because he has acquired in the same city area at the distance of a mere 150 metres from the last mentioned property, a house of his own, much larger in size, that is a three storied structure. The tenant-petitioner resides in the aforesaid house of his along with his family members.

8. It is specifically pleaded that the requirement of the two landlords, Deepak Tandon and Shekhar Tandon is bona fide for the property.

9. The tenant-petitioner filed a written statement and also an additional written statement, wherein he has not disputed his status as a tenant in the property in dispute, whereof the landlord-respondents have been acknowledged to be the landlords. It is the tenant-petitioner's case that the property in dispute has been in the tenancy occupation of the family since the past 50 years. His father was originally the tenant and used the said property as a godown to store his wares. After the death of the tenant-petitioner's father, he took up residence in the property in dispute and at the same time, utilized it as a godown. The tenant-petitioner denied the fact that he utilizes the property in dispute exclusively for the purpose of his residence, as asserted by the landlord-respondents. It was further pleaded at the instance of the landlord-respondents that the tenant-petitioner, from time to time, increased the monthly rent, which, in the current time, is a sum of Rs. 520/- per mensem. It includes water tax and sewer tax. The landlord-respondents, in the month of November, 2015 demanded of the tenant-petitioner that the rent may be enhanced to a sum of Rs. 3,000/-, which the latter declined. There is a case also pleaded about the fact that initially, the landlord-respondents accepted the rent, but later on refused, on account of which, the tenant-petitioner is regularly depositing the same under Section 30(1) of the Act. It was then pleaded that some other tenants have been evicted and there is available accommodation with the landlord-respondents to satisfy their claimed bona fide need, but deliberately the landlord-respondents have suppressed the facts and made the present release application mala fide.

10. There is also a specific plea raised in paragraph no. 25 of the written statement, setting out names of various tenants who are continuing to occupy different parts of the landlord-respondents' premises, but no proceedings for eviction have been taken against them. The tenant-petitioner, on the basis of singling him out for eviction proceedings has raised a plea of mala fides against the landlord-respondents. In the additional written statement, the tenant-petitioner has not denied the fact that he has got constructed a house of his own bearing Premises No. 62/30/6B, Nawab Yusuf Road, Allahabad, but said that his house is very small, admeasuring 15' x 30'. The tenant-petitioner goes to the said house to retire for the night. It is then pleaded in the additional written statement that in the afternoon hours, he takes time off from his shop and eats his lunch, utilizing the property in dispute. The tenant-petitioner also says that he is afflicted by kidney disease, that causes him to frequently need the urinal. He utilizes the property in dispute that was located at the distance of a three quarters of a kilometer from his shop for the twin purpose of eating his lunch and answering the frequent call of nature, a fallout of his diseased kidneys. In addition, the property in dispute is used as a godown for his shop, where he can conveniently and quickly ensure supplies to his shop. It is also the tenant-petitioner's case that pending the proceedings for release, the landlord-respondents have got vacated adjoining shops from the other tenants, Rajesh Kumar Gupta, Surendra Kumar, Suresh Khanna, Rajendra Kumar Abbi, all of which has led the landlord-respondents to acquire in a vacant state much accommodation, that they can utilize for the purpose of satisfaction of their claimed bona fide need. The shops vacated by the above named persons are part of the same premises as the property in dispute and adjoining it. It is broadly on the aforesaid pleas that the tenant-petitioner has resisted the release application.

11. The parties filed their affidavits and some on behalf of the witnesses in support of their respective cases. The Prescribed Authority vide judgment and award dated 30.11.2017 allowed the release application. The tenant-petitioner filed Rent Appeal No. 10 of 2018 before the District Judge of Allahabad. The appeal came up for determination before the Additional District Judge, Court No. 5 Allahabad, who proceeded to hear and dismiss the appeal vide the judgment impugned dated 07.01.2019.

12. Dissatisfied, the tenant-petitioner has filed the present petition under Article 227 of the Constitution.

13. Parties have exchanged affidavits.

14. Heard Mr. Vishal Khandelwal, learned Counsel for the tenant-petitioner and Mr. Kunal Shah, learned Counsel appearing on behalf of respondent nos. 3 to 6.

15. It has been argued by Mr. Khandelwal that the property in dispute being one that is a residential building, it cannot be released for a business purpose, because what the landlord-respondents have said in their application normally constitutes a business purpose. He points out that the application is not maintainable, in view of Clause (ii) of the third proviso to Section 21(1) of the Act. It is argued that the landlord-respondents have pleaded a case that they need the property in dispute so that they can eat their lunch conveniently, as it is situate close to their business premises, sparing them the trouble of going home everyday, that is located three kilometers away from their place of work. This purpose the learned Counsel for the appellant submits is a business purpose, and not residential purpose.

16. This Court is afraid that the aforesaid objection is not very well-founded, because the plea that the property in dispute is a residential accommodation, attracting the bar carried in Clause (ii) of the third proviso to Section 21(1)(a) of the Act, was never taken in the written statement filed before the Prescribed Authority. It was also not argued before the Appellate Authority. It is before this Court that the plea has been urged for the first time. Learned Counsel for the tenant-petitioner says that the position is admitted that the property in dispute is a residential accommodation, and therefore, no pleading to that effect is required. He has urged that admission is the best form of proof and here, this position it admitted that the property in dispute is a residential accommodation. This submission too is not borne out by the facts on record. In paragraph no. 21 of the written statement filed by the tenant-petitioner, it has been averred that the property in dispute was used since the time of their father for the purpose of his godown and also residence and until date, the tenant-petitioner utilizes the said property as a godown and also for the purpose of residence. However, a perusal of paragraph no. 5 of the additional written statement shows that the tenant-petitioner utilizes the property in dispute as a godown in order to facilitate his business and the only other use to which it is put is that the tenant-petitioner eats his lunch there and uses the washroom. This clearly would not show that the property in dispute was let out for a residential purpose. Rather, the totality of the pleadings indicate that since the time of his father, the property in dispute was used as a godown. Quite apart, how much of it was used for residence and what part as a godown would be a matter which would have been gone into from the point of view of maintainability, if that plea had specifically been raised before the Authorities below. The plea was not specifically taken before the Authorities below, on account of which, that issue with reference to the evidence was never examined. The same issue arose between the petitioner and another tenant, Rajesh Kumar Gupta, against whom, release was ordered by the Prescribed Authority and the Appellate Authority. This Court, however, in a writ petition, set aside the order on the ground that the tenancy was essentially for a residential purpose, where three rooms were utilized for residence and one for a shop, whereas the landlord-respondents had sought release for commercial purpose, attracting the bar under the third proviso to Section 21 of the Act.

17. The aforesaid view of this Court did not find favour with their Lordships of the Supreme Court in Deepak Tandon and another v. Rajesh Kumar Gupta2 where it was held :

15. In our considered opinion, the High Court committed jurisdictional error in setting aside the concurrent findings of the two courts below and thereby erred in allowing the respondent's writ appeal and dismissing the appellants' application under Section 21(1)(a) of the 1972 Act as not maintainable. This we say for the following reasons:

15.1. First, it is not in dispute that the respondent (opposite party) had not raised the plea of maintainability of the appellants' application under Section 21(1)(a) of the 1972 Act in his written statement before the Prescribed Authority.

15.2. Second, since the respondent failed to raise the plea of maintainability, the Prescribed Authority rightly did not decide this question either way.

15.3. Third, the respondent again did not raise the plea of maintainability before the first appellate court in his appeal and, therefore, the first appellate court was also right in not deciding this question either way.

15.4. Fourth, it is a settled law that if the plea is not taken in the pleadings by the parties and no issue on such plea was, therefore, framed and no finding was recorded either way by the trial court or the first appellate court, such plea cannot be allowed to be raised by the party for the first time in third court whether in appeal, revision or writ, as the case may be, for want of any factual foundation and finding.

15.5. Fifth, it is more so when such plea is founded on factual pleadings and requires evidence to prove i.e. it is a mixed question of law and fact and not pure jurisdictional legal issue requiring no facts to probe.

15.6. Sixth, the question as to whether the tenancy is solely for residential purpose or for commercial purpose or for composite purpose i.e. for both residential and commercial purpose, is not a pure question of law but is a question of fact, therefore, this question is required to be first pleaded and then proved by adducing evidence. It is for this reason, such question could not have been decided by the High Court for the first time in third round of litigation in its writ jurisdiction simply by referring to some portions of the pleadings. In any case and without going into much detail, we are of the view that if the tenancy is for composite purpose because some portion of tenanted premises was being used for residence and some portion for commercial purpose i.e. residential and commercial, then the landlord will have a right to seek the tenant's eviction from the tenanted premises for his residential need or commercial need, as the case may be.

15.7. Seventh, the High Court exceeded its jurisdiction in interfering with the concurrent findings of fact of the two courts below while allowing the writ appeal entirely on the new ground of maintainability of the application without examining the legality and correctness of the concurrent findings of the two courts below, which was impugned in the writ appeal.

15.8. Eighth, the High Court should have seen that the concurrent findings of facts of the two courts below were binding on the writ court because these findings were based on appreciation of evidence and, therefore, did not call for any interference in the writ jurisdiction.

18. This is precisely the position here on facts and the state of pleadings. In view of holding of the Supreme Court in Deepak Tandon (supra), the point urged by Mr. Khandelwal does not hold substance. So far as the question of bona fide need and comparative hardship is concerned, both the Authorities below have concurrently answered it against the tenant-petitioner and the inference drawn by both Courts from the evidence on record is, in no way, perverse or based on irrelevant material. The most important fact that tips the scales heavily in favour of the tenant-petitioner on both the counts of bona fide need and comparative hardship is that it is admitted to the tenant-petitioner that he has acquired/got constructed a house within the same city, situate at Premises No. 62/30/6B, Nawab Yusuf Road, Allahabad. The tenant-petitioner has, no doubt, attempted to explain the possession of a residential accommodation on the ground that the house constructed by him is very small, as he says in paragraph no. 5 of his Additional W.S., admeasuring 15' x 30' that he utilizes to retire at night alone, but that explanation is in apology for a plenary admission of the fact that the tenant-petitioner has a residential accommodation available to him in the same city. Rather, the tenant-petitioner's further case that he utilizes the property in dispute to eat his lunch and answer the call of nature excludes the case that he utilizes the property in dispute for residential purposes at all. These facts have figured in the pleadings of the tenant-petitioner, let alone the evidence. The findings that the Authorities below have given on its basis cannot, therefore, be faulted at all.

19. It is, thus, clear that the property in dispute is not at all utilized as a residential premises by the tenant-petitioner, but as a godown and a place to facilitate his business located at a short distance. It is the tenant-petitioner's case that he utilizes the property in dispute to eat his lunch and use the washroom, accessing it conveniently from his shop located close by. The landlord-respondents also need the property in dispute for a similar purpose, that is to say, as an adjunct or facility to their business, which they can utilize during the day to eat their lunch, instead of going to their faraway located home. Once both the tenant-petitioner and the landlord-respondents seek to utilize the property in dispute for a similar purpose and the landlord-respondents have shown that they need it to carry on their business with ease, the bona fide need of the landlord-respondents must be accepted. Likewise, comparative hardship would also have to be held in favour of the landlord-respondents, as both the tenant-petitioner and the landlord-respondents need the property in dispute for a similar purpose. Where the competing need is similar and evenly balanced, comparative hardship has to be held in favour of the landlord-respondents.

20. The Appellate Court has taken note particularly of the fact that in paragraph no. 13 of the affidavit, Paper No. 24ka, the tenant-petitioner has admitted the fact that he has recently got constructed the house bearing Premises No. 62/30/6B, Nawab Yusuf Road, Allahabad and has, on that basis, opined that the tenant-petitioner has no right whatsoever to object to the release of the property in dispute. This line of reasoning is an alternate to that this Court has hitherto considered. It proceeds on the tenant-petitioner's assertion that the property in dispute is residential or that was the purpose for which it was let out. Even if this case of the tenant-petitioner were to be accepted, Explanation (i) to Section 21(1) of the Act would come into play and disable the tenant-petitioner from objecting to the application for release. The disability under the aforesaid provision would be attracted if the tenant-petitioner or any member of his family has acquired another residential building in the same city, municipality etc. In this connection, reference may be made to the decision of the Supreme Court in Shiv Singh Chak v. Baby Jain3, where it has been held :

8. Explanation (i) to Section 21(1) of the Act provides that where a proceeding for eviction is initiated by the landlord in regard to a residential building under Section 21(1) of the Act and where the tenant or any member of his family has acquired a vacant residential building in the same city/town/area, the prescribed authority shall not entertain any objection of the tenant against the application for eviction. In effect this means that where the landlord avers and proves in an eviction proceedings relating to a residential building under Section 21(1) of the Act, that the tenant has acquired vacant possession of a residential building in the same city/town/area, it will not be permissible for the tenant to challenge the bona fides of the landlord or put forth any hardship as a defence. But the said Explanation (i) to Section 21(1) does not apply to non-residential buildings. The Explanation to Section 21(1) starts with the words "In the case of a residential building". As the Explanation is inapplicable to a non-residential building, the bar contained in Clause (i) of the Explanation will not operate where the eviction petition is in regard to a non-residential building. But the fact that the tenant has acquired a suitable alternative non-residential building may, however, be urged as a good ground to hold that no hardship will be caused to the tenant if he is evicted from the premises let out to him.

21. To the same effect is the decision of this Court in Laxmi Kant Bhatnagar v. District Judge, Muzaffarnagar and another4, where it was observed :

8. The legislative mandate is very clear. Once a tenant has himself got a residential accommodation, or through any member of his family who has been normally residing with him or is wholly dependent on him, in a vacant state, no objection against release application under section 21(1)(a) of Act, 1972 shall be entertained from such tenant.

9. The sale-deed is on record. There is nothing to show that accommodation was not vacant at the time of execution of sale-deed between petitioner-tenant's wife and erstwhile landlord of said building. No other material has been placed to show that the building when acquired was not vacant. The acquirement of building by petitioner's wife is not in dispute. It is also not in dispute that Explanation (i) would be attracted in the present case. Even during course of argument Sri A.K. Mehrotra has not controverted that the said provision i.e., Explanation (i) to section 21(1)(a) shall be attracted in the present case.

10. That being so, against landlord's application for release of residential accommodation, no objection can be entertained from the tenant. It means that the tenant loses any locus standi to object prayer for release made by the landlord.

11. That being so, it results in extinguishing any right to contest prayer of landlord for release of residential building which embraces within itself right to pursue or contest in subsequent proceedings also.

22. Thus, viewed from any angle and whichever way it is considered, no case for interference with the impugned order is made out.

23. In the result, this petition fails and is dismissed. There shall be no order as to costs.

Order Date :- April the 1st, 2022

I. Batabyal/Anoop

(J.J. Munir, J.)