Allahabad High Court
Ambikeshwari Pratap Singh vs District Judge Raebareli And 2 Others on 11 March, 2025
Author: Pankaj Bhatia
Bench: Pankaj Bhatia
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2025:AHC-LKO:14997
Court No. - 7
Case :- WRIT - A No. - 18878 of 2017
Petitioner :- Ambikeshwari Pratap Singh
Respondent :- District Judge Raebareli And 2 Others
Counsel for Petitioner :- M.A. Siddiqui,Gantavya
Counsel for Respondent :- C.S.C.
Hon'ble Pankaj Bhatia,J.
1. Heard Ms. Meha Rashmi, learned counsel for the petitioner, Shri Madan Mohan Pandey, learned counsel, who appears on behalf of respondent No.2 in his personal capacity as well as Shri Hari Govind Upadhyay, learned counsel for the State.
2. The present petition is being taken up in terms of an order of remand passed by the Hon'ble Apex Court in Civil Appeal No.14459 of 2024, wherein the Supreme Court had remanded the matter for consideration afresh of the bona fide requirement, which as per the order has not been upset by the High Court in its judgement dated 14.05.2024.
3. The facts in brief, as dealing to the filing of the petition, which had led to passing of the order, are that an application under Section 21(1)(a) of U.P. Act No.13 of 1972 (hereinafter referred to as the 'Rent Act') was filed by the land lord, the petitioner herein, claiming that the premises in question was let out to the Superintendent of Police in his personal capacity and the premises in question was required for the personal need as set up by the land lord in his application dated 20.04.2009. The said application is on record. In terms of the said application, it was alleged that rent of the premises under the occupation of respondent No.1, the Superintendent of Police was Rs.100/- per month. The boundaries of the property were also disclosed. It was stated that the property is in possession of the land lord by virtue of a family settlement and it was also pleaded that the property in question was required for personal residence of the land lord. The said proceedings were contested by the respondents and ultimately, an order came to be passed, whereby the release application was allowed. The said order was passed on 06.03.2012 in P.A. Case No.3 of 2009. The same is contained in Annexure No.2 to the writ petition. While deciding the release application, the prescribed authority under the Act noted pleadings, also noted oral submissions in the form of affidavit recorded as document No.14-Kha as well as the affidavit of PW-2 Bhuneshwari Pratap Singh recorded as document No.16-Kha. The other evidences led by the parties were also noticed. While dealing with bona fide need, the prescribed authority decided the same in favour of the land lord in view of the two affidavits and after considering the case laws, the release application was allowed on 06.03.2012. The defendants were directed to vacate the premises within a period of two months. The said release order was challenged by the Superintendent of Police as well as the District Magistrate, State of U.P., being the appellant No.2 through Rent Appeal No.31 of 2012. In the said appeal, various pleas were taken. However, the appellate court held that although, the pleading of bona fide need was pleaded, however, there was no specific pleading with regard to the extent of occupation required by the land lord. It further recorded that generally it has come to the knowledge that the State/Administration does not illegally occupy the premises as is generally done by the private litigants and whenever the alternative accommodation of the Superintendent of Police and his camp office is ready, the premises shall be given to the petitioner. It was also recorded that the impugned order of release was being set aside on the condition that whenever in future, the residence and the camp office of the Superintendent of Police is ready, the same shall be vacated and the possession shall be given to the land lord. The appeal came to be decided in terms of the said order on 31.05.2017. The said order was challenged by the petitioner by preferring Writ-A No.18878 of 2017. The said writ petition came to be decided by means of a judgement dated 14.05.2024. While doing so, this Court recorded that the appellate court itself had recorded in its judgement that as soon as, the Government manages an alternative accommodation for the residence and camp office of the Superintendent of Police, the same shall be vacated. It was further recorded that despite seven years having passed, there is no challenge by the State to the said order insofar as it directs that as soon as the building is made available for the residence and office of the S.P., the same shall be vacated and the premises shall be handed over to the land lord and without there being challenge, the said direction becomes binding on the parties. It further recorded that in the appellate order no time frame was prescribed and in that regard, this Court vide its order dated 04.01.2024 had asked the State to indicate the time within which, the instructions would be completed. Subsequently, on two occasions, further time was granted to the State to file an affidavit, however, no affidavit seems to have been filed indicating the time frame within which, the premises shall be handed over to the land lord, as such, this Court granted six months time to vacate the premises, i.e., up to 15th November, 2024. Other directions were also issued. The judgement dated 14.05.2024 was challenged before the Hon'ble Supreme Court in SLP (Civil) No.26900 of 2024, which was later on converted to Civil Appeal No.14459 of 2024, which was decided. The entire order of the Hon'ble Supreme Court is being reproduced herein-below:
"Leave granted.
Heard the learned senior counsel appearing for the parties.
We have perused the affidavit of compliance dated 9th December, 2024 and, in particular, what is stated in paragraph No.3 thereof.
The order of eviction passed in favour of the first respondent by the Prescribed Authority was set aside in an appeal by the learned District Judge by judgment and order dated 31 May, 2017. Being aggrieved by the said order, the first respondent filed a writ Petition under Article 227 of the Constitution of India and the Writ Petition was allowed by the impugned judgment. However, we find that the finding of the District Court against the first respondent regarding failure of the first respondent to prove the ground of bonafide requirement has not been upset by the High Court. In fact, there is no finding on the said issue by the High Court. Therefore, the only proper course will be to set aside the impugned judgment and to direct the High Court to re-hear the Writ Petition.
Accordingly, we set aside the impugned order dated 14th May, 2024 in Writ Petition A No.18878 of 2017 and restore the said Writ Petition to the file of the High Court. The restored petition shall be listed before the roster Bench on 20th January, 2025 in the morning. Both the appellants and the first respondent shall be represented before the High Court on that day and no further notice shall be served to them. The High Court shall fix an appropriate date for hearing of the restored petition, considering the fact that the Writ Petition is of the year 2017 and the plea of the first respondent is of bonafide need.
Needless to add that the appellants shall continue to pay the agreed rent to the first respondent during the pendency of the Writ Petition before the High Court.
All contentions on merits of the parties to the petition are kept open to be decided by the High Court.
The appeal is accordingly allowed on the above terms."
4. In terms of the order of the Supreme Court as extracted above, this Court is to decide whether the bona fide need as set up by the land lord was duly established or not?
5. Arguing the matter after remand, learned counsel for the petitioner argues that in terms of the pleadings contained in the application, there was no specific denial that the need set up by the petitioner as land lord was either fanciful or mala fide. In the absence of any specific pleadings, two affidavits were filed to substantiate the pleadings of bona fide need, which are recorded in the order of the prescribed authority itself and there being no contravention with regard to the said two affidavits and there being no cross-examination to discredit the statements given by the said two deponents, material to substantiate the pleadings of bona fide need duly existed.
6. She further argues that in any case, the appellate court itself had granted time to vacate the premises, which direction was never challenged by the opposite parties.
7. She further argues that the findings and the directions of the Supreme Court are to the extent of recording a finding with regard to bona fide need which, the Supreme Court found to be apparently missing in the earlier judgement of this Court. She thus argues that the writ petition deserves to be allowed.
8. Learned counsel for the State as well as Shri Madan Mohan Pandey, learned counsel appearing on behalf of the Superintendent of Police in his personal capacity, strenuously argue that the rent of the premises was fixed at Rs.16,000/-, which is more than the rent of Rs.2,000/- and draws attention to Section 2 of the Act to argue that where the rent of premises is more than Rs.2,000/-, the provisions of Rent Control Act do not apply. He further argues that the Supreme Court in its judgement dated 13th December, 2024 had kept all contentions on merits of the parties to the petition has referred to be decided by the High Court and in terms of that liberty, it was argued that the Rent Act itself was not applicable.
9. In the light of the rival pleadings as recorded above, the issues as raised in between the parties are to be decided. Although, in terms of the intent of remand by the Hon'ble Supreme Court in its judgement recorded above, the issue of bona fide requirement not being considered by the High Court is to be decided. However, as an additional point has been raised by learned counsel for the respondent and to avoid any further extension of litigation in between the parties, which is going on since 2009, I intend to decide the issues as argued by learned counsel for the respondent. To decide the said issue, it is essential to notice certain material facts.
10. The property in question was commonly known as Tikari kothari and was constructed over a nazul plot, which was leased in favour of the father of the petitioner in 1937. The term of the said lease was 90 years. Subsequently, after attaining the majority, the petitioner became co-lessee of the property in question. It also bears from the record that in the year 1967, the lease was extended once again for a period of 90 years with a further stipulation of two renewals of 30 years each. Subsequently, in a family partition that took place in the petitioner's family amongst his three brothers, the property in question fell in the share of the petitioner through a civil court decree passed in the year 1972, which was also recorded in the nazul records. The property in question was leased to the Superintendent of Police in the year 1937 on a monthly rent of Rs.100/-. Subsequently, the successors of then Superintendent of Police continued to reside and pay the rent of the premises at the same rent of Rs.100/- per month. Never at point of time, was the State the tenant of the premises as is also evident from the documents, which demonstrates that the rent was paid out of pocket of the then Superintendent of Police. In fact, the letter dated 27th October, 1967 on record along with supplementary affidavit indicates that the Superintendent of Police could not draw his salary for four months and requested for a week's time for payment of the rent and also expressed his regret for inconvenience caused. Similar letter dated 18th October, 1967 is also part of the supplementary affidavit. Thereafter, the petitioner, was in requirement of the premises for his personal use, as such, an application was filed for release of the premises. It also bears from the record that when, the action was taken by the petitioner by an application for vacating the premises, measures were taken by the State Government firstly by recalling the nazul lease, which subsisted in favour of the petitioner and was to continue up to 2027. The said conduct of the State Government was also noticed by this Court in M/B No.1775 of 2011; Ambikeshwari Pratap Singh Vs. Zila Adhikari, decided on 07.12.2015.
11. As it has been argued that the rent of the premises was above Rs.2000/- and thus, the premises in question was outside the purview of Rent Control Act. It is essential to notice the fact that after the petition was filed for vacation of the premises, communication took place in between the Secretary and the District Magistrate, Raibareli and view was found that the fair rent should be around Rs.16,000/-. It also bears from the record that after the State Government took a decision for recalling the lease, the petitioner had approached this Court by filing Writ Petition No.2065 of 2006, which was disposed of on 08.10.2010 directing the District Magistrate, Raibareli to decide the petitioner's representation afresh, on which, an order came to be passed on 30.11.2010, whereby the Nazul rights of the petitioner over the property in question were withdrawn. The said order dated 30.11.2010 was challenged in M/B No.1775 of 2011, in which, initially an order came to be passed directing for payment of the arrears of rent, which included the rent as was proposed to be fixed. The said interim order passed in the month of February, 2011 was challenged in SLP No.34275 of 2011. However, the same was dismissed. It also appears that in terms of an interim order passed on 20.02.2011, the arrears of rent was deposited, out of which Rs.5 lacs was permitted to be released in favour of the Superintendent of Police, respondent No.5 of M/B No.1775 of 2011 for carrying out the repair work. Subsequently, the order recalling the lease passed on 30.11.2010 was set aside vide judgement dated 07.12.2015 and the petitioner was given liberty to invoke the appropriate remedies under the Rent Control Act.
12. In the light of the said, what transpires is that simultaneously along with the decision to recall the lease, communications took place for fixing the rent, which was proposed to be fixed at Rs.16124.44/-, which according to learned counsel for the respondents was the rent fixed in terms of the U.P. Act No.13 of 1972. Thus, in view thereof, according to him, the premises would be beyond the purview of Act No.13 of 1972.
13. To appreciate the said argument, it is essential to notice that U.P. Act No.13 of 1972 was enacted with a view to regulate the rent and eviction of certain class of buildings. Section 3(a) of the said Act defines the tenant, which is as under:
"3(a) "tenant", in relation to a building, means a person by whom its rent is payable, and on the tenant's death -
(1) in the case of a residential building, such only of his heirs as normally resided with him in the building at the time of his death;
(2) in the case of a non-residential building, his heirs;
Explanation? An occupant of a room in a hotel or a lodging house shall not be deemed to be a tenant;"
14. Section 3(k) defines standard rent, which is as under:
"3(k) "standard rent", subject to the provisions of section 6, 8 and 10 means-
(i) in the case of a building governed by the old Act and let out at the time of the commencement of this Act-
(a) where there is both an agreed rent payable therefor at such commencement as well as a reasonable annual rent which in this Act has the same meaning as in section 2(f) of the old Act, reproduced in the Schedule the agreed rent or the reasonable annual rent plus 25 per cent thereon, whichever is greater;
(b) where there is no agreed rent, but there is a reasonable annual rent, the reasonable rent plus 25 per cent thereon;
(c) where there is neither agreed rent nor reasonable annual rent, the rent as determined under section 9 ;
(ii) in any other case, the assessed letting value, for the time being in force, and in the absence of assessment, the rent determined under section 9;
15. Section 9 of the said Act provides for manner of determination of standard rent, which is as under:
"9. Determination of standard rent- (1) In the case of a building to which the old Act was applicable and which is let out at the time of the commencement or this Act in respect of which there is neither ally reasonable annual rout nor any agreed rent or in any other case where there is neither any agreed rent nor any assessment in force, the District Magistrate shall, on an application being made in that behalf, determine the standard rent.
(2) In determining the standard rent, the District Magistrate may consider-
(a) the respective market value of the building and of its side immediately before the date of commencement of this Act or the date of letting, whichever is later (hereinafter in this section referred to as the said date) ;
(b) the cost of construction, maintenance and repairs of the building;
(c) the prevailing rents for similar buildings in the locality immediately before the said date;
(d) the amenities provided in the building;
(e) the latest assessment, if any, of the building;
(f) any other relevant fact which appears in the circumstance of the ease to he material.
(2-A) Subject to the provisions of sub-section (2), the District Magistrate shall ordinarily consider ten per centum per annum on the market values of the building (including its site) on the said date to be the annual standard rent thereof and the monthly standard rent, shall be equal to one-twelfth of the annual standard rent so calculated.
(3) Every order made under sub-section (1) shall, subject to the result of any appeal preferred under section 10, be final."
16. Section 21(1)(a) of the said Act prescribes the manner, in which the land lord of a building can seek the release of the building for his personal need. Section 21(1)(a) of the said Act is quoted herein-below:
"21(1)(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;"
17. In the present case, admittedly, prior to the enactment of 1972 Act, the rent as fixed in between the parties was Rs.100/- per month. No process for determination of the standard rent as prescribed under Section 9 of said Act ever took place admittedly in between the parties. No process as prescribed in the other provisions of U.P. Act No.13 of 1972 ever took place in between the parties for fixation/re-fixation of the standard rent. Thus, I have no hesitation in holding that the standard rent in respect of the premises in question is Rs.100/- per month and not Rs.16,214.44 as was sought to be canvassed by learned counsel for the respondent. Thus the first contention of counsel for respondents that the Rent Act will not apply in view of rent being more than Rs.2000/- per month merits rejection and is rejected.
18. The documents on record, clearly indicate that the premises in question was taken by the then Superintendent of Police in his personal capacity and thereafter, the premises continued to be occupied by the subsequent Superintendent of Police, without there being any objection at the instance of the land lord. The State Government by no stretch of imagination can be termed as a 'tenant' of the premises in question merely because the subsequent Superintendent of Police continued to occupy the premises, the same would by no stretch of imagination mean that the State Government has become the tenant of the premises in question particularly in view of the definition of tenant as contained in Section 3(a) of the U.P. Act No.13 of 1972.
19. As regards the recording of the bona fide need by the prescribed authority as well as by the appellate authority, the prescribed authority in its judgement clearly recorded that two affidavits were filed in support of the contention of the pleadings contained in application under Section 21(1)(a) of the Act. The said affidavits in support of the pleadings were un-controverted and were duly considered by the prescribed authority while allowing the release application on the ground of bona fide need. Thus, the said finding on bona fide need, was based upon appreciation of evidence and to that extent a finding of fact was recorded in favour of the land lord.
20. The prescribed authority also considered that during the pendency of the release application, no efforts were made by the tenant to find another premises, which was also a factor considered against the tenant and in favour of the land lord. The appellate authority in its judgement merely recorded that on the premises in question, the residence of the Superintendent of Police along with his camp office were running. He also recorded that his common knowledge that extensive areas were required for camp office of the Superintendent of Police and thus, he found that the prescribed authority had erred in recording that the entire premises was needed for personal occupation. He further recorded that normally, it was a common knowledge that the State or its authorities do not encroach upon the properties, which can be done by a private litigant. He also recorded that whenever, the alternative premises is made for the Superintendent of Police and his camp office, essentially the premises would be vacated. He ultimately came to dismiss the release application with the observation that in the future as and when, the alternative premises is ready for occupation of the Superintendent of Police for his personal need and camp office, the possession of the premises shall be given to the petitioner.
21. The said order of the appellate authority is beyond the realm of reasoning as is expected to be performed by an appellate authority. The appellate authority did not record any reason for disagreeing with the finding of the prescribed authority in respect of his bona fide need, which was decided by the prescribed authority based upon two un-controverted affidavits. The reasoning for passing the appellate order are wholly perverse and based upon the some personal notion of the appellate authority, which cannot be accepted to be the valid mode of decision taking in exercise of appellate powers.
22. As the Hon'ble Supreme Court has remanded the matter with specific instructions to record finding on bona fide need, I have no hesitation in holding that the bona fide need as pleaded by the land lord in his application was duly substantiated by two affidavits. The said affidavits were never controverted by the defendants and even in the present petition, there is no averment discrediting the two affidavits filed by the land lord in support of his pleadings, which would substantiate the pleadings of bona fide need as specifically pleaded in the application.
23. That being the case, I have no hesitation in holding that the land lord had succeeded in establishing his bona fide need, the State was never the tenant of the premises in question, the rent of the premises continued to be Rs.100/- per month as no process of determination of standard rent was ever undertaking as prescribed under the U.P. Act No.13 of 1972. Thus, on all the said grounds, the petition deserves to be allowed.
24. The respondents are directed to vacate the premises within a period of six months from today. As, I have already held that the rent of the premises was not enhanced by any process of determination of standard rent as prescribed under the Act, the rent deposited in this Court by virtue of the interim orders, shall be returned to the respondents on their moving appropriate application.
25. The writ petition is allowed in terms of above.
Order Date :- 11.3.2025
Ashutosh
