Allahabad High Court
Ambikeshwari Pratap Singh vs District Judge Raebareli And 2 Others on 14 May, 2024
Author: Manish Mathur
Bench: Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2024:AHC-LKO:36979
Court No. - 17
Case :- WRIT - A No. - 18878 of 2017
Petitioner :- Ambikeshwari Pratap Singh
Respondent :- District Judge Raebareli And 2 Others
Counsel for Petitioner :- M.A. Siddiqui
Counsel for Respondent :- C.S.C.
Hon'ble Manish Mathur,J.
1. Heard Mr. Aftab Ahmad Advocate holding brief on behalf of Mr. M.A. Siddiqui learned counsel for petitioner and Mr. V.K. Shahi learned Additional Advocate General assisted by Mr. Hari Govind Upadhyay learned Additional Chief Standing Counsel for opposite parties.
2. Petition has been filed under Article 227 of Constitution of India challenging order dated 31st May, 2017 passed in appeal under Section 22 of the U.P. Act No.13 of 1972.
3. The petitioner calming to be land-lord of the premises in question filed an application under section 21(1)(a) of the Act seeking release of the premises on the basis of bona fide need. The aforesaid application was allowed by means of judgment and order dated 6th March, 2012 in which issue pertaining to land-lord tenant relationship was decided in favour of the petitioner and it was held that although the premises was a nazool property but the petitioner came within definition of land-lord of the same. Issues regarding bona fide need and comparative hardship were also decided in favour of petitioner.
4. The said judgment and order dated 6th March, 2012 was thereafter challenged by the State being tenant, in appeal which has been allowed by means of impugned judgment and order.
5. Learned counsel for petitioner submits that the appellate court despite not interfering with the findings recorded by the trial court has also held that finding recorded by trial court pertaining to bona fide need was not in accordance with law but did not interfere with the same and has in fact recorded a finding that the State never intends to usurp private properties and has thereafter indicated in the operative portion that premises in question would be handed over to the land-lord by the State once camp office of Superintendent of Police and his residence are constructed. It is submitted that no time frame was indicated by the appellate authority and now despite passing of 7 years the same remains uncomplied with.
6. It has therefore been submitted that once the judgment and order of trial court directing release of the premises in question was not interfered with by the appellate court, a specific time frame was required to be indicated for a direction to the opposite parties to hand over vacant and peaceful possession of the premises in question to the land-lord.
7. Learned counsel has placed reliance on judgments rendered by Hon'ble Supreme Court in the cases of Subhash Mahadevasa Habib versus Nemasa Ambasa Dharmadas (dead) by L.Rs. and others reported in (2007) 13 Supreme Court Cases 650 and Triloki Nath Agarwal (dead) through L.Rs. versus Bata India Ltd. through Manager Lease and Rent reported in 2012 SCC OnLine All 232.
8. Learned counsel appearing on behalf of opposite parties-State has refuted submissions advanced by learned counsel for petitioner with submission that the State as tenant had raised a specific plea before the appellate court that the proceedings under section 21(1)(a) of the Act itself were not maintainable and that the judgment therefore rendered by the trial court was without jurisdiction. It is further submitted that although such a plea was not raised before the trial court but since the issue of jurisdiction goes to the root of matter, the same should have been adjudicated upon by the appellate court. It is submitted that surprisingly even no issue was framed either by the trial court or even by the appellate court on the aforesaid point despite specific pleadings in that regard.
9. It is also submitted that the finding pertaining to bona fide need by the trial court was not based on any evidence as has been rightly held by the appellate court and therefore there was no occasion for the appellate court to have issued a direction for vacation of the premises. Learned counsel has placed reliance on judgments rendered by Hon'ble Supreme Court in the cases of Ramesh Chandra versus III Additional District Judge and others reported in (1992) 1 Supreme Court Cases 751 and Union of India and another versus Deoki Nandan Aggarwal reported in AIR 1992 Supreme Court 96 to buttress his submissions.
10. Upon consideration of submissions advanced by learned counsel for parties and perusal of material on record, the facts as indicated herein above are undisputed. However it appears that the application under section 21(1)(a) was filed on 20th April, 2009 and during course of aforesaid proceedings, an order dated 30th November, 2010 was passed by the opposite parties whereby leasehold rights of petitioner in respect of premises in question were withdrawn. The said order was challenged before this court in writ Petition No. 1775 (M/B) of 2011 and was allowed by means of judgment and order dated 7th December, 2015 which attained finality and in pursuance thereof, petitioner's leasehold rights over the premises in question continued.
11. A perusal of the plaint indicates the same having been filed under section 21(1)(a) of the Act on the ground of bona fide need. The trial court framed two issues pertaining to bona fide need and comparative hardship with findings on both being returned in favour of the plaintiff/petitioner. It is evident from the plaint that in paragraph 1 thereof, it was specifically stated that the premises in question had been let out at the rate of Rs.100/- per month. In paragraph 15 of the written statement, the aforesaid statement was admitted that the premises in question was let out at the rate of Rs. 100/- per month.
12. It appears therefore that no issue was framed by the trial court regarding maintainability of the proceedings in terms of Act No.13 of 1972 since no such plea was taken.
13. It is only in the memorandum of appeal that the tenant/State took a plea regarding maintainability of the proceedings on the ground that rent for the premises in question being Rs. 16124.55 per month with effect from 23rd July, 1997 in pursuance of order dated 22nd February, 2011 passed in Writ Petition No. 1775 (M/B) of 2011 it was exempted from the provisions of the Act in view of Section 2(1)(g) since the rent exceeded an amount of Rs.2000/- per month.
14. Learned counsel for opposite parties-State has laid much emphasis on the fact that issue pertaining to jurisdiction can be raised at any stage including the appellate stage as well as in writ jurisdiction. He has placed reliance on judgments indicated herein above to submit that issue of jurisdiction going to the root of the matter can be raised at any stage as a new plea and on that ground has submitted that since the said plea had specifically been taken in the memorandum of appeal, the appellate court was duty bound to advert to the same.
15. A perusal of material on record, particularly the written statement filed by tenants before the trial court as well as counter affidavit filed in present writ petition makes it evident that opposite parties admit the fact that from Ist April, 1937 to 31st March, 1967 the premises in question was let out at the rate of Rs.20/- per annum. The lease was renewed from Ist April, 1967 to 31st March, 1997 against the enhanced lease rent of Rs. 30/- per annum whereafter it was increased to Rs. 100/- per month. From the pleadings made by opposite parties themselves in the written statement and in counter affidavit, it is evident that as on the date of filing of application under Section 21(1)(a) of the Act, monthly rent of the premises in question was Rs.100/- per month.
16. From the record it also appears that the rate of rent was subsequently enhanced to Rs. 16124.55 with effect from 23rdJuly, 1997 in pursuance of order dated 22nd February, 2011 passed in writ petition No. 1775 (M/B) of 2011 with compliance thereof being made only on 7th December, 2015 as indicated in paragraph 17 of the counter affidavit filed to this writ petition. It is also apparent that enhanced rent though referable with effect from 23rd July, 1997 was not paid to the land-lord till 2015 and therefore it is evident that as on the date of filing of the application for release, the rate of rent remained Rs.100/- per month.
17. Learned counsel for opposite parties has placed reliance on judgment rendered by Hon'ble Supreme Court in the case of Ramesh Chandra (supra). It is however noticeable that in paragraph 12 of the aforesaid judgment, Hon'ble Supreme Court has clearly enunciated that law applicable on the date of institution of suit alone governs the suit and subsequent facts would not become applicable regarding its maintainability. Relevant portion of the judgment is as follows:-
"12. Yet another contention urged by the learned counsel for the tenant on the strength of Vineet Kumar v. Mangal Sain Wadhera [(1984) 3 SCC 352] is that inasmuch as the statutory period of ten years expired during the pendency of the suit, the Act became applicable and the suit must be disposed of only in accordance with the provisions of the Act and in particular sub-section (2) of Section 20. This decision has, however, been explained in a subsequent decision in Nand Kishore Marwah v. Samundri Devi [(1987) 4 SCC 382] wherein it has been held that the law applicable on the date of the institution of the suit alone governs the suit and the mere fact that the statutory period of 10 years expires during the pendency of the suit/appeal/revision, the Act does not become applicable. It was held that the suit has to be tried and decided without reference to the Act. We are in respectful agreement with the view expressed in Nand Kishore Marwah [(1987) 4 SCC 382] ."
18. An examination of appellate court judgment also reveals the fact that although the appellate court did not agree with findings regarding bona fide need and comparative hardship, nonetheless refused to interfere with the same and has specifically recorded a finding and issued a direction in pursuance thereof that the State as tenant would hand over vacant and peaceful possession of the premises in question as soon as the government manages an alternative and suitable accommodation for the Superintendent of Police for his camp office and residence. It is also relevant fact that the State has not challenged the appellate judgment and order dated 31st May, 2017 despite seven years having passed and therefore in the considered opinion of this Court, the findings as recorded by the trial court and followed by the appellate court becomes binding on opposite parties.
19. It is also evident that despite the appellate court having expressed a desire that premises in question would be handed over to the tenant, no specific time frame for the same has been indicated.
20. From a perusal of order sheet in the present writ petition, it appears that this Court vide order dated 4th January, 2024 has passed a detailed order requiring the State to indicate a time frame within which the residence of Superintendent of Police would be constructed for shifting out of the premises in dispute and efforts made by state Government for construction of the same. Vide subsequent order dated 29th January, 2024 this Court has again recorded that despite specific directions issued by this Court and a period of more than six and half years having elapsed, no specific time frame has been indicated by the State regarding handing over of vacant and peaceful possession of the premises in question. Subsequently vide another order dated 16th April, 2024 two weeks and no more time had been granted to the opposite parties to file an affidavit in compliance of directions issued by this court earlier.
21. Although in pursuance thereof, a supplementary affidavit has been filed by the opposite parties but the same only raises issues regarding jurisdiction of the trial court to entertain the application under section 21(1) (a). The affidavit does not indicate any specific time frame and therefore in the absence thereof despite repeated directions of this Court, it falls upon this Court to issue specific directions for the same.
22. In view of discussions made herein above, it is directed that the opposite parties shall hand over vacant and peaceful possession of the premises in question as indicated in the plaint to the petitioner- land lord within a period of six months from today latest by 15th November, 2024 failing which the petitioner shall be at liberty to indicate disobedience to this Court by filing of an affidavit in the present petition or taking recourse to contempt jurisdiction.
23. An affidavit of undertaking shall be filed by the opposite parties within two weeks from today.
24. It has been submitted by learned counsel for petitioner that despite the admission made by opposite parties in their counter affidavit that current rent of the premises is Rs. 16124.55, no payment thereof has been made after November, 2015. In view thereof, the opposite parties are directed to make payment of arrears of outstanding rent at the rate of Rs.16124.55 per month to the petitioner, in case there is any outstanding, within a period of six weeks from today. The petitioner shall also be entitled to interest at the rate of 6% per annum from the date it is due till the date of actual payment. The opposite parties are furthermore directed to continue payment of Rs. 16124.55 per month to the petitioner within the first week of every month as rent and damages for use and occupation.
25. Resultantly the petition succeeds and is allowed. Parties to bear their own cost.
Order Date :- 14.5.2024
prabhat
