Uttarakhand High Court
Singh And Another vs Najakat Ali Khan And on 5 January, 2021
HIGH COURT OF UTTARAKHAND
AT NAINITAL
ON THE 5TH DAY OF JANUARY, 2021
BEFORE:
HON'BLE SHRI JUSTICE SHARAD KUMAR SHARMA
Writ Petition (M/S) No.3375 of 2019
BETWEEN:
1. Manmohan Singh (Male) aged about 52 years
2. Harpal Singh (Male) aged about 59 years,
Both sons of Late Rajendra Singh
Both R/o Tanakpur Road, Tehsil Haldwani, District Nainital
....Petitioners
(By Sri Siddhartha Singh, Advocate)
AND:
Najakat Ali Khan S/o Late Barkat Ali Khan, R/o Tanakpur Road, Tehsil
Haldwani, District Nainital
.....Respondent
(By Sri B.P. Nautiyal, Senior Advocate assisted by Sri
Muhammad Matlub, Advocate for respondent)
JUDGEMENT
This writ petition has been preferred by the petitioners
for the following reliefs:-
Prayer
It is therefore most respectfully prayed that this
Hon'ble Court may graciously be pleased:-
(i) Issue a writ, order or direction in the nature
of certiorari calling of the record of the case
and quashing the judgment dated
15.10.2019 (Annexure No.1) passed by
Learned District Judge, Nainital in Rent
Control Appeal No.12 of 2018 Manmohan
Singh and another vs. Najakat Ali Khan and
further the judgment dated 03.11.2018
(Annexure No.2) passed by Prescribed
Authority/Civil Judge (J.D.) Haldwani,
District Nainital in RCC No.1 of 2013 Najakat
Ali Khan vs. Manmohan Singh and another
and further to reject the release application
with exemplary cost.
(ii) Issue any other suitable writ, order or
direction which this Hon'ble Court may deem
fit, just and proper in the circumstances of
the case as also in the interest of justice.
(iii) Allow the writ petition with cost."
2. The petitioners' who are the tenants of the
tenement in question, which has been more appropriately
described in the release application; as to be a residential
accommodation, bearing Municipal No.4-773, Tanakpur
Road, Haldwani, District Nainital (hereinafter to be called as
the tenement in dispute). On 05.01.2013 the
respondent/landlord had filed a release application seeking
release of the tenement in question, which constitutes to be
residential accommodation having three rooms, one store,
one kitchen and toilet, situated in the ground floor of the
building in question.
3. The contention of the petitioners before the Court
below was that the late father of the petitioner Late Mr.
Rajendra Singh had occupied the premises in question in
the capacity of being the tenant of the premises. The
release was sought by the landlord/respondent, of the
tenament in question on the ground that he has got three
grown up daughters, who are studying in the higher classes
viz. M.B.A; M.B.B.S and L.L.B. and in order to
accommodate them comfortably in the accommodation and
to meet their independent educational requirement, the
tenement in question was required in order to meet his
bonafide requirement. Coupled with the fact that it was also
the case of the landlord/respondent that he is a social
worker engaged in various social works, that owing to the
fact that they are also engaged in political activities since
being the "Sabhasad", (member of a Municipality) ten now
and then there are social gathering and visitors also are
often visiting their place and hence, also they required a
sufficient accommodation to be utilized by them, in order to
hold meetings, and the political gatherings, in which he
wants to be engaged in, alongwith his wife, who too was
District Secretary of Minority Cell of a particular political
party.
4. Besides this, in the release application,
respondent/landlord has also come up with the case that
opposite to the tenement in question, there lies an
accommodation, which was under the ownership of the
mother of the petitioners, in which petitioners have their
rights and share and there they can easily shift themselves
and accommodate their family and meet the requirement of
the residential need of their family. Besides the
accommodation already available with the petitioners, was
pleaded to be in same municipal area, having both
residential and commercial accommodation, where the
petitioners can easily shift with their family.
5. On the other hand, the tenant in their written
statement submitted that as far as the availability of the
accommodation, which the landlord/respondent has
contended that it was available to him, in fact, is not an
accommodation which is exactly available to them at the
moments, for the reason being that according to the case,
which was developed by the tenant in his objection, which
was filed to the release application, it was to the effect that
the said property, which was bearing Municipal Number 4-
1370; Tanakpur Road, Halwani, District Nainital, was later
on divested by the late mother of the petitioners in favour
of the sister of the present tenants/petitioners by execution
of a will in her favour, and hence their contention was that
the said property was not available at their disposal where
the tenants/petitioners, could shift and accommodate their
family.
6. The landlord/respondent, at the time when the
release was instituted on 15.01.2013, had specifically
pleaded in its para 1, of the release application that there
existed a relationship of landlord and tenant; between them
and the said fact, was not denied by petitioner but was
rather admitted by the petitioners while filing the
objection/written statement, to the release application on
13.03.2014; whereby the fact of a subsisting relationship of
landlord and tenants was admitted by the petitioner, in the
objection in writing which was filed to the release
application, which was an admission of there being
relationship of landlord and tenant by pleading in writing.
However, the said admitted plea raised at the first instance
by the tenant/petitioner, about the acceptance of the fact of
relationship of landlord and tenants, was later on attempted
to be qualified by virtue of making of an amendment, which
was made in the written statement by qualifying the earlier
pleading of written statement of existing relationship of
landlord and tenant by denying it, and by also making an
assertion to the effect that the pleading which has been
raised in the written statement was inadvertently made by
mistake, and their existed no relationship of the landlord
and tenant; because according to the argument which was
later extended, before the prescribed authority, the
contention of the petitioners/tenants; was that the
respondent was not the landlord in fact, he was an agent,
who was acting on behalf of the landlord, for the purposes
of collection of rent and as such on that pretext of the
amended plea raised in the written statement, the
petitioners' case was that the release application itself was
not tenable and cannot be sustained. One of the issues,
which would have an impact is that this plea made by virtue
of amendment, will amount to be withdrawing of admission,
which was made at the first instance by the
petitioner/tenant.
7. On the contrary, the argument of the
landlord/respondent, in response to the pleadings, which
has been raised in the writ petition and as opposed by the
tenant in the written statement, which was filed by them on
13.03.2014, the respondent/landlord, has also contended
that the said plea of denying the relationship of landlord
and tenant by making a subsequent amendment; cannot be
permitted to be legally sustainable for the reason being that
according to their own conduct of the tenants/petitioners, in
the earlier set of proceedings, which had already
culminated, itself will amount to be an admission of a
established fact, at the behest of the petitioners, that they
had consistently admitted the fact that their existed a
relationship of landlord and tenant and for the said purpose,
the respondents/landlord; had made reference to the
proceedings, which was chosen to be drawn by the
petitioners themselves under Section 30 of Act No.13 of
1972, which was registered as Misc. Case No.04 of
2013, Harpal Singh vs Najakat Ali, which subsequently
stood allowed in favour of the tenant/petitioner, by virtue of
an order of 02.07.2013; As far as the said judgment of
02.07.2013 which was rendered in the proceedings under
Section 30 of the Act No.13 of 1922, is concerned, whereby
the direction was issued to the petitioner, for the purposes
of remittance of rent before the court, which was contended
by the petitioners/tenant, was allegedly denied to be
accepted by the landlord/respondent, has attained finality;
because the said judgment was never put to challenge by
the petitioner/tenant, before any superior court on any of
the subsequent concocted, above grounds, rather in
compliance to it, the petitioner/tenant had rather continued
to pay the rent by depositing it with the Court, in order to
avoid the action of eviction against him, on the ground of
default in remittance of rent, under Section 20 of the Act of
1972, and hence, that in itself, since being a proceedings,
which was drawn under the statute; under which it's the
tenant, who invokes the proceedings, which can be
instituted by the tenants only, it would amount to be an
admission of his status of being a tenant, by his own
recourse to the judicial proceedings, hence, he would be
estopped to plead to the contrary, by taking a somersaulted
plea by virtue of the later amendment which was sought in
the written statement, because Section 30 of the Act is
referred to here under:-
(A) 30. Deposit of rent in court in certain
circumstance. - (1) If any person claiming to be
a tenant of a building tenders any amount as rent
in respect of the building to its alleged landlord
and the alleged landlord refuses to accept the
same then the former may deposit such amount
in the prescribed manner and continue to deposit
any rent which he alleges to be due for any
subsequent period in respect of such building
until the landlord in the meantime signifies by
notice in writing to the tenant his willingness to
accept it.
(2) Where any bona fide doubt or dispute has
arisen as to the person who is entitled to receive
any rent in respect of any building, the tenant
may like wise deposit the rent stating the
circumstances under which such deposit is made
and may until such doubt has been removed or
such dispute has been settled by the decision of
any competent Court or by settlement between
the parties, continue to deposit the rent that may
subsequently become due in respect of such
building.
(3) The deposit referred to in sub-section (1) , or
sub-section (2) shall be made in the Court of the
Munsif having jurisdiction.
(4) On any deposit being made under sub-section
(1) , the Court shall cause a notice of the deposit
to be served on the alleged landlord, and the
amount of deposit may be withdrawn by that
person on application made by him to the Court
in that behalf.
(5) On a deposit being made under sub-section
(2), the Court shall cause notice of the deposit to
be served on the person or persons concerned
and hold the amount of the deposit for the benefit
of the person who may be found entitled to it by
any competent Court or by a settlement between
the parties, and the same shall be payable to
such person.
(6) In respect of a deposit made as aforesaid, it
shall be deemed that the person depositing it has
paid it on the date of such deposit to the person
in, whose favour it is deposited in the case
referred to in sub-section (1) or to the landlord in
the case referred to in sub-section (2).
(B) ^^izkFkhZx.k dh vksj ls izLrqr izkFkZuki= vUrxZr /kkjk&30¼1½ ;w0ih0 ,DV
ua0 [email protected] ds vUrZxr bl vk'k; ls fn;k gS f dog foi{kh ds Hkou
la&4&297 fLFkr vPNu dk cxhpk Vudiqj jksM gY}kuh esa foi{kh dk
fdjk;snkj gSA mDr Hkou dk fdjk;k [email protected]&:0 izfr 6 ekg gS tks izfroknh
}kjk gksyh ls nhokyh o nhokyh ls gksyh fujarj tek fd;k tkrk jgk gSA
izkFkhZx.k }kjk fnukad 20-7-12 dks : [email protected]&: fdjk;k gksyh 2012 ls nhokyh
2012 rd dk tfj;s efuvkMZj foi{kh dks fHktok;k x;k ftls foi{kh }kjk
izkIr fd;k x;kA ysfdu foi{kh nhokyh 2012 ls gksyh 2013 rd dk fdjk;k
ugha ys jgk gS ftls izkFkhZx.k us euhvkMZj ls fHktok;k ysfdu foi{kh }kjk
fdjk;k ysus ls euk dj fn;kA ftldks tek fd;s tkus dh vuqefr pkgh x;h
gSA izkFkhZx.k dh vksj ls vius dFkuksa ds leFkZu esa euhvkMZj dh jlhn o
ikorh jlhn nkf[ky dh gSA^^
8. Its thereafter that the proceedings under Section
21(1)(a), has been carried by the respondents landlord, and
which is now the subject matter of the present writ petition,
it would amount to that the said initiation of the
proceedings under Section 30 of the Act, at the behest of
the petitioners itself will amount to be an admission of the
relationship of landlord and tenant and his status, as that to
be a tenant; justifying the proceedings and its validity too,
under Section 21(1)(a) of the Act because thereafter the
petitioner after acceptance of states of landlord and tenant,
between them, continued to deposit the rent in the
proceedings under Section 30 of the Act.
9. The respondent/landlord, has further submitted
that the contention of the petitioners to deny the
relationship of landlord and tenant under the pretext of
amended plea, contending thereof that the
respondent/landlord, used to act as an agent only for the
purposes of collection of the rent is also denied and not
accepted in view of the judgment dated 25.07.2016, which
was rendered in the regular, Civil Suit No.68 of 2014,
Harpal Singh and another vs. Najakat Ali, though it was
an ex-parte judgment which was passed as against the
respondent/landlord; but the fact, which remains, that even
in those proceeding, also the purposes of grant of decree of
permanent injunction, which was initiated by the
petitioners, themselves before the court of Civil Judge (Jr.
Div.), Haldwani, District Nainital; a specific finding in those
proceedings, have yet again been recorded to the effect
that their existed a relationship of tenant and landlord, and
which was rather the only case which was developed by the
petitioners themselves in the suit, which was instituted by
them and hence, in view of their own recourse to the
judicial proceedings, which they have resorted to and which
had been ultimately culminated and has attained finality,
they cannot be permitted to take a liberty by way of an
amended plea to deny the relationship of landlord and
tenant; because the said decree by regular civil court too
which was rendered on 25.07.2016, in an injunction suit
filed by them had attained its finality. In which the following
pleading was raised by the petitioner themselves.
^^la{ksi esa] oknh }kjk okn i= esa bl vk'k; dFkkud fd;k x;k gS fd
izfroknh Vudiqj jksM gY}kukh ftyk uSuhrky esa fLFkr Hkou la[;k 4&297 dk
Hkou LOkkeh gS ftlesa oknhx.k :0 [email protected] izfr N% ekg dh nj ls izfroknh ds
fdjk;snkj pys vk jgs gSaA fookfnr lEifRRk esa oknh la[;k 1 dh ifRu] ,d
iq= o ,d iq=h rFkk oknh la[;k 2 dh iRuh] ,d iq= o ,d iq=h fuokl dj
jgs gSaA izfroknh }kjk fookfnr lEifRr dk fdjk;k ysus ls vLohdkj djus ij
izfroknh }kjk fookfnr lEifRr dk fdjk;k /kkjk 30 ¼1½ jsUV daVzksy ,DV 13
lu~ 1972 ds vUrxZr U;k;ky; esa lqpk: :Ik ls tek fd;k tk jgk gSA
izfroknh }kjk oknhx.k dks fookfnr lEifRr ls voS/kkfud :Ik ls csn[ky djus
ds fy;s izkjEHk esa vius etnwjksa ds ek/;e ls ijs'kku fd;k x;k rFkk >wBs rF;ksa
ds vk/kkj ij oknhx.k ds fo:) ,d jsUV daVzksy okn la[;k [email protected] utkdr
- 10 -
vyh cuke~ eueksgu flag U;k;ky; Jheku fofgr izkf/kdkjh gY}kuh ds
U;k;ky; esa izLrqr fd;k x;k tks U;k;ky; ds le{k fopkjk/khu gSA^^
10. Apart from it, the counsel for the
respondent/landlord, had also drawn the attention of this
Court to yet another judgment which was rendered by this
Court in Writ Petition No.598 of 2006 (M/S), Saleem
Khan & Others vs. Nazaqat Ali Khan and Another,
where there was an inter-se dispute of ownership, as a
consequence of the vesting of the property between two
brothers, namely, Gucchan Khan and Acchan Khan and in
view of the decision, which was rendered by this Court in a
judgment dated 03.08.2017, in which yet again a finding as
has been recorded therein that as far as inter-se rights
between the two brothers are concerned, the respondents
of the said writ petition, were held to be the owner and
landlord of the property in dispute; which consequently, too
it stood vested with the present respondent/landlords, who
was the respondent in Writ Petition No.598 of 2006 (M/S)
also. This judgment of 03.08.2017 has attained finality.
11. The counsel for the petitioners had once again
submitted that in view of the amendment and amended
plea, which was carried by him in written statement, and
which was also permitted to be carried by the court below,
since it remained unchallenged, and consequentially the
amendment which was carried out with regards to the
status of the respondent/landlord, being described as to be
description of the statues of an agent to collect rent only,
that would be treated as to have attained finality and hence
it would lead to an inference that the respondent/landlord,
had only enjoyed the status of being an agent only and not
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the landlord. This Court is of the view that allowing of an
amendment and subsequently permitting its incorporation
in the written statement, that in itself does not deprive the
Courts at least to scrutinize the veracity of such
amendment and the status pleaded by the petitioner, which
has been made in the written statement, itself and
particularly when it is having a bearing of withdrawing of an
earlier concurrent admissions, which was already made by
the petitioner/tenant in the principal written statement,
which was filed on 13.03.2014 and also in the proceedings
of civil suit and proceedings under Section 30 of the Act
No.13 of 1972 which were filed by the petitioners
themselves coupled with the fact that; I am of the view that
the said amendment, cannot be read in exclusion to the
proceedings, which had already culminated and which were
initiated at the behest of the petitioners themselves, where
the fact of the earlier regular civil judgments, being
rendered in their favour already stands settled finally and
where the relationship of landlord and tenant was a fact
which has been established and judicially settled by a
regular Civil Court by the judgment which was rendered in
the favour of the tenant/petitioners.
12. Besides this the consistent stand of the
petitioner/tenant that amendment in the proceedings under
Section 21(1)(a), since was not put to challenge by the
landlord/respondent, hence it would be exfacie taken to be
correct and true, is not acceptable by this Court, because I
am of the view that an amendment if allowed and permitted
to be incorporated, even it is not challenged; it would
always be a subject matter of judicial test in a proceedings
depending upon the overwhelming facts and other collateral
- 12 -
and unrebutted evidences on record, even if it has not been
challenged by the party to the proceedings against whom it
was allowed. Amendment allowed, will only be acceptable in
an evidence when it is proved and tested by other evidence,
it cannot be acceptable merely because it was not
challenged.
13. The counsel for the petitioners had made the
reference to the findings, which has been recorded by the
learned prescribed authority particularly, he has drawn the
attention of this Court to the contents of para 10 of the
judgment, rendered by the appellate court, where he has
contended that that applicant/landlord, is shown to have
been appointed as an authorized agent to collect the rent
on behalf of Chunni Begum, whom he later succeeded by
will executed by her, which was upheld in the unchallenged
judicial proceedings. Hence, her death and succession of
testatory estate, the respondent acquires the status of
landlord.
14. I am of the view that this finding recorded by the
learned appellate authority, cannot be extracted to be read
in exclusion and in isolation to the other finding which has
already been recorded by the regular Civil Court and
particularly with the finding, where that the definite finding,
which has been recorded in a judgment rendered by Civil
Court holding thereof, that as a consequence of the
property being divested from Chunni Begum, the present
respondent/landlord, had been already determined, as to be
the owner and landlord of the property in question and
hence, the finding of summary proceedings as recorded
- 13 -
under Section 22 of the Act No.13 of 1972; cannot be
extracted to override finding of the regular Civil Court,
where it has already been settled that after determination
of an inter-se rights of devolvement of their ownership, the
respondent had been held to be the owner and landlord, it
was a finding which was solicited in the proceedings of the
petitioner/tenant himself, which will be atleast be binding
on them.
15. Apart from it, this Court will also have to bear in
mind that the petitioners, who are the tenants, has an
accommodation, which is already available with them,
under their ownership, which has devolved on them by
succession, which is situated just opposite to the tenement
in question. However, the said fact has been attempted to
be denied by the petitioners, on the pretext that it had been
bequeathed by their mother, to their sister by virtue of a
will dated 09.04.2011, which was executed in her favour.
16. This Court at this stage is not agreeing to accept
the said argument, which had been raised by the
petitioner/tenant, about vesting of the property with the
sister of the petitioner, for the reason being that the will
dated 09.04.2011, the reference of which has been made
by the counsel for the petitioners, had neither been placed
on record, nor it has been even attempted to be proved to
be establish by any evidence which was lead by the
petitioner showing that the mother had actually divested
the property, exclusively in the name of the sisters of the
petitioners, in order to enable them to derive a plea that
the petitioners were not the owners; of the property
- 14 -
available to them vertically opposite to the tenement in
question; nor there was any such order or judgment, which
was placed on record and provided on record by the
petitioner/tenant, that the property which initially belonged
to the mother of the petitioner, which was succeeded by
him, was ever recorded in the name of the petitioner. The
burden of proof of which was never discharge by the
petitioners, because it was they who were trying to derive
the benefit to continue with tenancy, on the ground of
bequeath, which was never proved, nor even-ever
attempted to be proved on record by evidence, which was
to be led by the petitioners/tenants.
17. The counsel for the petitioners had drawn the
attention of this Court, on various authorities, for the
purposes of establishing the relationship of landlord and
tenant from the judgments on which reliance has been
placed by them and as had been reported in (1988) 1 ARC
517 Naseeruddin and others vs. Prescribed Authority,
Meerut and others and also a judgment reported in (1983)
2 ARC 143 Smt. Sughra Begum vs. Sri Ram and others,
wherein he has contended that in view of the ratio which
had been propounded therein in the judgment of (1988) 1
ARC 517 Naseeruddin and others vs. Prescribed
Authority, Meerut and others; particularly, he has made
reference to the contents of para 5, the part of the
aforesaid judgment, which has been sought to be extracted
and relied by the petitioner, will not be applicable in the
circumstances of the present case, for the reason being that
in those proceedings the contention, which were dealt with
was with regards to the relationship of landlord and tenant,
in relation to tenement shop, which was sought to be
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vacated by the landlord and where the said question of
determination of the relationship of landlord and tenant,
was itself raised as one of the ground of contest, right from
its initiation of the acceptance of the proceedings itself. But
here in the present case as already observed by this Court
earlier, that since the said controversy was laid to rest by
the petitioner themselves by regular civil proceedings and
by the proceedings under Section 30 of the Act, it was no
more open for the petitioners to derive the benefit from the
finding recorded in para 5 of the said judgment, which is
quoted hereunder:-
"5. It was further argued by the learned counsel
for the petitioner that the rent had been collected
by Dal Chand son of Ramji Lal who was one of
the co-owners and not by respondent No. 3 and,
therefore, Dal Chand alone being the landlord, he
alone is entitled to file the application for release
under Section 21(1)(a) of the Act. I find no merit
in this submission also. It has been held by this
Court in Lakshmi Shanker Misra v. 1st Additional
District Judge and others, reported in 1977 ARC
7, that it is only by such landlords to whom the
rent is payable and not by whom it is collected,
that the application under Section 21(1)(a) can
be filed. Again in the case of Smt. Sughra Begum
v. Sri Ram and others, reported in 1983(2) ARC
143, it was held by this Court that only a person
who is entitled to occupy the house in his own
right can alone file the release application. Thus,
an agent and attorney of an owner of a house
may realise the rent of the house but such a
person would not be entitled to move an
application under Section 21. Again in the case of
E.E. Daual v. Smt. Phoolmani Dayal and others,
reported in 1977 ARC 4, (Short Notes) it has
been held that an attorney or an agent cannot
become a landlord and hence such person cannot
file an application for the release of the
accommodation under Section 21(1)(a) of the
being admittedly one of the co-owners of the
accommodation in dispute and entitled to occupy
the house as an owner and also being a person to
- 16 -
whom the rent is payable under the law was fully
competent to file the application for the release of
the accommodation under Section 21(1)(a) of the
Act. Hence, I find no merit in the submission
made by learned counsel for the petitioner that
respondent No. 3 could not file the application for
the release of the accommodation."
18. In order to contend in the arguments of that of
the petitioners since has been dealt with and had described
as to be an agent in para 10 of the judgment of the
appellate court and hence he, cannot be treated to be the
landlord in order to sustain the release application preferred
by him has already been answered above. In that view of
the matter, as far as the findings recorded by both the
courts below pertaining to the bonafide need of the landlord
no argument has been extended by the learned counsel for
the petitioners in relation to the bonafides of need, as was
expressed by the landlord in the release application except
the challenge which has been given on the ground that the
release was not maintainable in view of the ratio laid down
in 1988 (1) ARC 517 (Supra) and in view of findings of the
appellate court cursorily describing the respondent/landlord
as to be an agent who was collecting the rent on behalf of
the landlord the said aspect has already been answered
earlier in quite detail which needs no reiteration.
19. In order to elucidate his argument, with regards
to the sustainability of the application for release which was
filed under Section 21(1)(a), through an agent, the learned
counsel for the petitioner had made reference to a
judgment reported in 1983 (2) ARC 143, Smt. Sughra
Begum and others vs. Shiv Ram and others and
- 17 -
particularly he has made reference to the reasoning which
has been recorded by the Coordinate Bench of Allahabad
High Court; in para 8 of the said judgment, which is quoted
hereunder:-
"8. Learned counsel for the petitioner contended
that as Smt. Sughra Begam had been realizing
the rent of the house from respondent no.1, she
was the landlord of the premises, and that she
could file the application under Section 21 for her
need, even though she may not be its owner. The
submission made is not correct. Under Section 21
a landlord can move an application for occupation
by himself or any member of his family. The fact
that only a person who is entitled to occupy can
alone move an application indicates that one who
is not entitled to occupy or has no right to occupy
in his own right cannot apply for release under
Section 21. An agent or attorney of an owner of
the house may realize the rent of the house in
respect of which power is conferred upon him by
the owner to do so and for that purpose he may
be considered to be landlord within the meaning
of that expression defined in Section 3, but such
a person would not be entitled to move an
application under Section 21."
20. The judgment therein in para 8, which has
created a restriction of initiation of proceedings under
Section 21(1)(a); through an agent or an attorney of an
owner of the house, who may realize the rent of the
tenement in question, but the authority of agency conferred
on a person to recover the rent may not include within its
ambit the power to initiate the proceedings under Section
21(1)(a), in that case it was, because that is an exclusive
right which has been protected under Section 21(1)(a), to
be read with the definition of the landlord as given under
Section 3(j) of the Act, where an exception has been carved
out in the definition clause itself that the landlord would
- 18 -
include within its ambit, the person who owns the house or
the one who collects the rent, which is payable in relation to
the tenement; except the agent or an attorney, as it has
been described and dealt with in Sub Clause (g) of Section
3 of the Act. The reliance which has been placed by the
counsel for the petitioners with relation to the said
judgment, there cannot be any doubt with regard to the
ratio laid down therein about the limitations of the right of
an agent to initiate or sustained the proceedings under
Section 21(1)(a) under Act No.13 of 1972. The restrictions
therein intended for initiation of the proceedings through an
agent or an attorney of an owner is being restricted; from
the prospective its only when an exclusive right has been
given to an agent to initiate the proceedings under Section
21(1)(a) of the Act, which was the case there, which was
dealt with by the Allahabad High Court in the judgment of
Sughra Begum (Supra). The principles enunciated therein
would not be applicable in the present case for the reason
being that if the factual backdrop of the present case is
taken into consideration, in the set of circumstance of the
present case, the applicant to the release application in fact
was judicially already held as, an owner of the property,
which was a fact, admitted by the petitioners themselves in
the written statement, which was filed by them in the
proceedings before the prescribed authority at the first
instance.
At this stage of the writ petition, the petitioners
cannot be permitted to carved out a distinction in a case,
in order to suit the preposition which has been laid down in
the judgment of Sughra Begum (Supra) to make his case
fall in that category, because there the application under
- 19 -
Section 21(1)(a), was exclusively proved to have been filed
by the agent, which is not a akin circumstances, in the
present case, where admittedly the release was filed by the
respondents/landlord, and that too particularly in the light
of the facts, when his rights were already determined to be
an owner in a regular civil proceedings, which were held
under the regular civil laws, as applicable and ultimately
that has also culminated into a judgment which was
rendered by this Court in a writ petition, being Writ Petition
No.598 of 2006, Salim Khan and others vs. Najakat Ali and
others (the details of which would be dealt with
hereinafter). In order to meet the argument of the learned
counsel for the petitioners, it would be apt to refer to the
definitions which had been given under the Act, itself of the
landlord, wherein as per its literal connotation it means that
a person, who owns the building or it means a person to
whom the rent is paid or would be payable to him, by the
tenant except those case as provided in Clause (g) of
Section 3, that means the 'family', where the agent or an
attorney has been excluded to be included in the said
definition for family. Hence, the exception granted under
Clause 3(j); is to be read in co-relation to the definition of
family under Sub Section (g) of Section 3 of the Act, which
excludes the agent or an attorney. But, if the said principles
is to be read alongwith the provisions contained under
Section 21(1)(a) of the Act, it deals with the application
filed by the landlord for eviction of a tenant and here the
term landlord would be read in consonance with the
definition of the landlord as it has been provided under the
Act, means a person, who realizes the rent from the tenant.
- 20 -
This argument of the counsel for the petitioner
may not be available to him to be argued, at this stage of
the writ petition for the reason being, that at the stage of
the proceedings before the prescribed authority, when the
respondents/landlord has pleaded that he happens to be
the owner of the property in question. The said fact had
been admitted by the petitioners themselves in their
pleading while, filing the written statement and in that
eventuality, they would be estopped to raise the plea to the
contrary and that to particularly, it will be apt to point out
at this stage itself, that when particularly in a regular
proceedings for declaration of rights and title of the
landlord/respondent, which has already culminated by way
of a judgment, which was passed in a revision, being
Revision No.27 of 2002-2003, Najakat Ali vs. Wahid
Khan and others whereby the revisional court vide its
judgment of 14.08.2002 which was rendered by the
Additional Chief Revenue Commissioner, was dealing with
the right and title which was vested with the present
respondent as to be an owner of the property on the basis
of the will which was executed by Late Chunni Begum, has
inter-se attained finality because the judgment of the
revisional court dated 14.08.2002, has been later affirmed
in his favour by this Court.
In short, the devolvement of right of an
ownership over the tenement in question, which has proved
to be with the respondent, was that there were two
brothers Gucchan Khan and Acchan Khan. Acchan Khan on
his death, was succeeded by his wife Chuuni Begum, who
died issueless, whereas the other brother Gucchan Khan,
who had three sons they were in contest with the present
- 21 -
respondent/landlord with regards to devolvement of the
estates and ownership of Chunni Begum estate, which was
adjudicated in favour of the respondent/landlord on the
basis of a hiba, which was executed by Late Chunni Begum
and was ultimately settled by the competent Revenue
Court; holding thereof that the present respondent was
holding the rights of ownership on the basis of the hiba
executed by Late Chunni Begum and hence since the said
judgment of the revisional court has been affirmed by this
Court, with the dismissal of the writ petition by the opposite
parties of the revision, the respondent would be held to be
the landlord of the property in question and release filed by
him is hold to be maintainable.
21. The counsel for the petitioners in order to further
elaborate his argument on the said prospective of
maintainability of release had drawn the attention of this
Court to the judgment, which was rendered by the
Coordinate Bench of Allahabad High Court, as reported in
2014 (3) ARC 106, Ganga Ram Singh vs. Additional
District Judge and Others particularly he has made
reference to the ratio laid down in para 3, 4 and 5 of the
said judgment which is referred to hereunder:-
"3. It is contended that in the application
preferred by respondents under Section 21(1)(a)
of U.P. Urban Buildings (Regulation of Letting,
Rent and Eviction) Act, 1972 (hereinafter referred
to as "Act, 1972"), the specific case pleaded by
petitioner in his written statement was that there
was that there is no relation of landlord and
tenant between the petitioner and applicants-
respondents and no evidence was adduced by
applicants-respondents on this issue and Courts
below have also not considered this aspect at all
and just assuming that defendant-petitioner was
- 22 -
not able to show that he was the owner of
premises in dispute, the application under Section
21(1)(a) of Act, 1972 has been allowed without
deciding the question, whether there existed
relationship of tenant and landlord between
applicants and defendant or not. Therefore the
impugned proceedings and the impugned orders
are patently illegal and without jurisdiction since
the relationship of landlord and tenant is the
condition precedent to attract Section 21(1)(a) of
Act, 1972. Reliance is placed on Sukha vs. 5th
Additional District Aligarh and others 1989
(2) AWC 772: 1989 (1) ARC 349.
4. I have perused the impugned judgments. In
the written statement filed by the petitioner, it
was specifically pleaded that he was not tenant in
the accommodation in question. Prescribed
Authority has not at all discussed this question as
to whether there was any evidence to show that
petitioner was tenant in the accommodation in
question. He has considered the question as to
whether petitioner was owner of property in
dispute or not and it has been said that petitioner
failed to prove that he is owner of property in
dispute and thereby had proceeded to hold that
petitioner is a tenant.
5. When the relationship of landlord and tenant
was disputed seriously, it was incumbent upon
the Prescribed Authority to decide this question
first, since it is a jurisdictional question and only
thereafter application under Section 21(1)(a) of
Act, 1972 could have been decided on merits,
which has not been done by both the Courts
below. The impugned orders, therefore, cannot
sustain."
22. There is a marked distinction of the said
judgment, and its applicability in the present case and the
said principles of the aforesaid ratio of Ganga Ram Singh
vs. Additional District Judge and others would not be
applicable in the present case for the reason being that:-
- 23 -
(a) In that case at the initiation of the proceedings
under Section 21(1)(a), a specific pleading was
raised by the tenement in the written statement
that there existed no relationship of landlord and
tenant, which is just contrary in the present case,
where relationship of landlord and tenant, has
been admitted by the petitioner, to be the tenant
of the respondent and further that is supported
by the adjudications which had been made by the
regular civil proceedings.
(b) The reason for rendering the said judgment by
the Allahabad High Court, was that in the written
statement, which was filed therein the tenant had
denied the relationship by way of specific
pleading, and that pleading which was raised by
the tenant at the initial stage in his written
statement was not discussed and dealt by the
prescribed authority, nor there was any evidence
which was brought on record to show, in that
case that there was a relationship of landlord and
tenant; which is not the case at hand, at present
for the reason being that there exists a
relationship of landlord and tenant is an admitted
fact by the petitioners. It is an admitted fact
because they himself have filed the proceedings
under Section 30 of Act No.13 of 1972 for
depositing of the rent in the Court, and was also
effectively held in regular civil suit, in which they
have admitted the relationship of landlord and
tenant hence, the said judgment would not be
applicable in the present case as it was based
- 24 -
upon altogether a distinct fact and circumstances
of the case. Hence, would not apply.
23. There is yet another judgment on which the
learned counsel for the petitioners had made reference to;
is that as reported in 2014 (2) ARC 144, Mam Chand
and others vs. Pramodini Srivastava and others.
Before answering, principles for placement of the reliance,
which was placed by the petitioners, to the contents of para
31, 32, 35, 36, 37, 44, 45, 46 and 47, it would be
necessary to deal with the backdrop, under which those
proceedings have emerged and for that purposes, this Court
would be obliviously dealing with the fact, that before
answering the aforesaid questions, the reference to para 2,
3, 5, 6, 7, 8, 10 and 14 would be relevant. The aforesaid
paragraphs are quoted hereunder:-
"2. It is contended that though eviction
proceedings were initiated against petitioners on
the ground of section 21(1)(b) of U.P. Urban
Buildings (Regulation of Letting, Rent and
Eviction) Act, 1972 (hereinafter referred to as
the "Act, 1972"), i.e., the building is in
dilapidated condition and requires to be
reconstructed after demolition but the
proceedings were initiated by respondents No. 1
to 4 through power of attorney holder, Sri Padam
Prakash and two more persons, namely, Sri
Sanjay Prakash and Sri Amit Prakash, both sons
of Sri Padam Prakash, who were also impleaded
as plaintiffs No. 5 and 6, though they had no
right to the property in dispute.
3. It is said that the entire proceedings in fact
were initiated, controlled and persuaded by
holder of power of attorney of respondents No. 1
to 4. Admittedly the respondents No. 1 to 4 were
landlords and owner of accommodation in
question but the real owners and landlords
never come forward and it is only the holder
- 25 -
of power of attorney who has prosecuted entire
matter, so much so that, in respect of such
matters where the evidence relating to status and
position of landlords and owners was to be seen,
there the power of attorney holders have
adduced evidence of their own status and
position etc. and the Courts below accepting the
same have recorded a finding in favour landlords
owners and passed impugned orders. It is thus
contended that entire approach of Courts below in
passing impugned orders is patently erroneous
and illegal.
Shivaji Marg, Meerut City, which is owned by
is the mother of respondents No. 2, 3 and 4,
who are son and daughters. They entered
into an "agreement to sell" of the house in
question, on 10.3.1999, with respondents
No. 5 and 6. The symbolic possession of
property was also given to them with further right
to recover rent from tenants. Respondents No. 1
to 4 as also 5 and 6 instituted eviction
proceedings by filing PA Case No. 112 of 1999
vide plaint dated 30.8.1999 alleging that house in
question is in dilapidated condition and,
therefore, is required to be vacated by petitioners
for the purpose of demolition and new
construction. Smt. Pramodini Srivastava,
respondent No. 1, herself and in the capacity of
holder of power of attorney of respondents No. 2,
3 and 4, vide power of attorney dated
17.12.1998, executed attorney in favour of
Padam Prakash son of Raghunandan, as a holder
of general power of attorney in respect of
disputed property.
6. The petitioners contested the matter, denied
any valid attorney in favour of respondents No. 5
and 6 and any relationship of landlord and tenant
with them, through written statement dated
9.12.1999. It is also said that there was no
compliance of Rule 17 of U.P. Urban Buildings
(Regulation of Letting, Rent and Eviction) Rules,
1972 (hereinafter referred to as the "Rules,
1972"). The respondents No. 1 to 4 did not
adduce any evidence either by filing their
own affidavits or otherwise and instead an
- 26 -
affidavit was filed by Padam Prakash, father
of respondents No. 5 and 6, stating that he
is the holder of power of attorney executed
by respondents No. 1 to 4 and that a
registered agreement to sell dated
10.3.1999 has been executed in favour of
respondents No. 5 and 6 and that the
applicants are financially strong having financial
capacity to bear expenses to be incurred in
property demolition and reconstruction etc. He
filed income tax returns and bank accounts of
himself to show sound financial position of
respondents No. 1 to 4.
7. The Small Cause Court, Meerut vide judgment
dated 22.2.2002 allowed the application, filed
under section 21(1)(b) of Act, 1972. It had
treated affidavit of Padam Prakash, holder of
power of attorney, as affidavit of respondents No.
1 to 4 themselves and considering the same, as
also the affidavit of Smt. Shama Mehra
(Architect) and one Vijay Kshetrapal, held that
disputed building is in dilapidated condition.
Thereafter relying upon affidavit of holder of
power of attorney and his own bank
statement, i.e., Padam Prakash, it held that
applicants i.e., respondents No. 1 to 4 have
enough financial capacity to bear expenses
of demolition and reconstruction and
accordingly allowed application. There against
petitioners preferred Rent Control Appeal No. 70
of 2002, which has been dismissed by Additional
District Judge, Court No. 4, Meerut vide
impugned order dated 10.4.2006, though the
operative part of Trial Court's order has been
slightly modified, which, for the purpose of
present dispute, is not relevant.
8. It is contended that the owner-landlord did
not adduce any evidence whatsoever and on
the evidence adduced by power of attorney
holder and that too in respect of himself, the
Courts below have allowed application filed under
section 21(1)(b) of Act, 1972, which is patently
illegal. An "agreement to sale" does not
confer any ownership right and the property
continued to be owned by earlier owner.
Similarly a holder of power of attorney represent
the owner himself but that does not mean that
- 27 -
the status and position of power of attorney,
individually, can be looked into as that of the
owner, and this approach of Courts below is
patently illegal.
10. Sale of immoveable property is defined
in section 54 of Transfer of Property Act,
1882 (hereinafter referred to as the "Act, 1882").
It says that sale is a transfer of ownership in
exchange for a price paid or promised or part
paid and part promised. The procedure to give
effect to sale of immoveable property is also
stated in the aforesaid provision. Section 54 as
amended in State of Uttar Pradesh clearly
provides that such transfer can be made only by
a registered instrument. Then there is a
provision for "contract of sale" also and as
amended in State of Uttar Pradesh, this also
required to be a registered instrument. Since
the sale can be effective only by registered
instrument of sale of immoveable property, the
property itself shall pass on to vendee and the
sale is complete as soon as the deed is registered
and not otherwise.
14. The agreement for sale or contract for sale,
by itself is not an instrument giving effect to sale
of immoveable property. The title to property
agreed to be sold continued to vests in the
vendor, in case of agreement for sale, but in case
of sale, title or property vests with purchaser. In
other words an agreement for sale is an
executory contract whereas sale is an
executed contract. An agreement for sale
does not create an interest in the proposed
vendee in the suit property but only creates an
enforceable right in parties. An agreement for
sale of property, and promise to transfer the
property convey the same meaning and effect in
law. A promise to transfer property is an
agreement for sale of property."
24. In para 2, the Coordinate Bench of Allahabad
High Court, in Mam Chand (Supra), was seized with the
proceedings under Section 21(1)(b); and it was not a
proceedings under Section 20(1)(a). In that case, the
- 28 -
respondents in the writ petition being respondent nos.1 to 4
were the owners and there attorney holder nos.5 and 6 had
contested the proceedings before the Court below under the
strength of Agreement for sale, which is not conferring of
title under Section 54 of Transfer of Property Act, they were
not the owners or the landlords.
25. In Mam Chand's (Supra), para 3, case the said
principle was laid down under the backdrop that the
respondent nos.5 and 6 were the attorney holders of
respondent nos.1 to 4, the landlord in the said release
application under Section 21(1)(b), they were the attorney
holders on the pretext that there was an agreement for sale
dated 10.03.1999, which was executed by respondent nos.1
to 4 of the said writ petition in faovur of respondent nos.5
and 6, who were the attorney holders that itself was not a
conveyance of title with them.
26. The Allahabad High Court, in those circumstances
was dealing with a case, where it was the attorney holder
respondent no.5 and 6 therein who were representing the
case and cause of the actual landlords, and had recorded
their evidence on behalf of respondent nos.1 to 4; the
actual recorded landlord was under the strength of an
agreement for sale, where the attorney holders respondent
nos.5 and 6, have contemplated that a symbolic possession
was given to them, and further they had a right to recover
the rent from the tenants. The recovery of rent made by
the attorney holders/agents, therein was under the strength
of an agreement for sale, in that case the Allahabad High
Court was dealing with a right to recover the rent which
- 29 -
was granted to the proposed purchaser, in whose favour
there was an agreement for sale, which was executors
contract and who had pleaded that they had a right to
recover the rent not on the basis of an executed contract.
27. In the said judgment in para 6, the Court has
specifically held that there the petitioners, that is, who were
the tenants therein from the initial stage had denied the
validity of the attorney, which was executed there in favour
of respondent nos.5 and 6, and they had at the very initial
stage had denied the relationship of landlord and tenant in
the written statement, which was filed by them and further
more the challenge was on the ground of non compliance of
Rule 17 framed under the Act No.13 of 1972, which was
necessary to be considered for the proceedings under
Section 21(1)(b). In that case, the landlord respondent
nos.1 to 4, had not contested the proceedings nor had led
any evidence. Hence, it was the case in quite contradiction
to the one at hand with which this Court is dealing.
28. The Court has observed that the proceedings
under Section 21(1)(b) in Mam Chand (Supra), in the
circumstance of that case would not be maintainable,
because it was rather the proposed purchaser in whose
favour the agreement for sale was executed who had filed
an affidavit, to adduce evidence in the proceedings under
Section 21(1)(b) and the Court has held in those
circumstances that since no valid right or title was
conferred to him because of the agreement for sale, there
was no relationship of landlord and tenant.
- 30 -
29. The Court has further observed that in the
circumstances of that case respondent nos.5 and 6, who
were the proposed purchaser and an holder for agreement
for sale, since the sale of an immovable property as it has
been defined under Section 54 of Transfer of Property Act,
there is only a provision for a contract for sale in favour of
the attorney holder respondent nos.5 and 6 therein. The
Coordinate Bench of Allahabad High Court; interfered in the
writ petition preferred by the tenant on the ground that the
attorney holder who had adduced evidence and filed the
proceedings under Section 21(1)(a), it was under the
strength of the agreement for sale, and the attorney
executed by respondent nos. 1 to 4, it was held that the
agreement for sale merely since does not confer any
ownership right over the property, as it continued to be
owned by earlier owners that is respondent nos.1 to 4,
therein the proceedings was held to be not maintainable.
30. The Coordinate Bench of the Allahabad High
Court while dealing with the implications of Section 54 of
the Transfer of Property Act, qua its vesting of right with
the attorney holder respondent nos.5 and 6; therein had
declined to treat them as to be an owner of the property,
for the reasons already recorded above and further more
for the reasons given in para 14 of it that an agreement for
sale or a contract for sale since is not an instrument giving
an effect for title to an immovable property, as it was only a
property agreed to be sold, its ownership still continued to
be vested with the vendor and in that eventuality the Court
had held that the agreement for sale, is an "executory
contract", whereas the sale is an "executed contract".
Hence, the Allahabad High Court held that executory
- 31 -
contract will not grant a title because it's the deed itself of
conveyance is yet to come into existence conferring, a valid
title because until and unless an executed contract, is
executed the title would still continue to be with the owner,
who agreed to sale the property and hence, in those
circumstances, the Court held that the release filed by the
proposed purchaser and holder of an attorney and an holder
of an executory for sale and a holder of an executor
contract cannot be treated as to be the landlord and owner
of the property in order to enable him to be brought within
the ambit of Section 3(j), to be read with Section 21(1)(b)
of Act No.13 of 1972.
31. It was under these factual backdrop, the Court
has allowed the writ petition of the tenant, holding thereof
that the release itself was not tenable in view of the finding
which has been recorded and relied by the counsel for the
petitioners in aforesaid paragraphs 31, 32, 34, 35, 36, 37,
43, 44, 45, 46 and 47. Even if the principles which has been
laid down in the aforesaid paragraphs is taken into
consideration, it was dealing with the scope of an agent and
attorney, as to whether they would be falling within the
ambit of Section 3(j) i.e. a definition of landlord, which
excludes the agent and attorney to be treated as a landlord
and that is why it was held that the deviation from a normal
capacity and status of the landlord; as to be an owner it
would not be permissible under the Act, until and unless, he
is covered by Section 3(j) of the Act. It needs no answer
that a person authorized to collect the rent by the landlord
or where in the present cases, it is admitted that the
applicant to the release was accepting the rent which is the
case at hand, it would be deemed that there exited the
- 32 -
relationship of landlord and tenant between the petitioners
and respondent.
32. The counsel for the petitioners had drawn the
attention of this Court to para 43 of the said judgment,
which was dealing with yet another principle, which was laid
down by another Coordinate Bench of Allahabad High Court
reported in 1997 ARC 7, wherein the Coordinate Bench of
the Allahabad High Court while dealing with the definition of
the landlord under Section 3(j) to be read with Section
3(g), there the Court was dealing with the effect of an
agent dealing with attorney of such person, wherein it had
been observed as under:-
"43. One of the earliest decision in this regard is
Sri Lakshmi Shanker Misra v. The 1st
Additional District Judge, Allahabad and
others 1976 (2) ALR 767. Hon'ble N.D. Ojha, J.
(as His Lordship then was) observed:
"Landlord' as defined in section 3(j) of the
Act in relation to a building, means a person
to whom its rent is or if the building, were
let would be payable and includes, except in
Clause (g) the agent or attorney, of such
person. In cases where there is a privity
of contract between two persons in
pursuance of which rent is payable by
one person to the other in respect of a
building occupied by him in the capacity
of a tenant, the person to whom rent is
payable, in view of the agreement,
would be the landlord of the person by
whom the rent would be payable
irrespective of the fact as to who was
the actual owner of the property. It
would be a case covered by the first
part of the definition viz., the landlord
would be such person to whom the rent
of the building is payable. The position in
law would, however, be different of an
accommodation falls vacant and the
- 33 -
question arises as to who is the landlord to
whom notices as contemplated by Rules 8
and 9 of the rules aforesaid are to be given
before passing an order of allotment. At this
stage the second part of the definition would
be attracted, viz., the landlord would be the
person to whom rent, if the building were
let, would be payable. It may be emphasised
that in either event landlord would be such
person to whom rent is or would be payable
as the case may be and not the person by
whom rent is physically collected on behalf
of the landlord would himself become the
landlord. Who would be the person to whom
rent, if the building were let, would be
payable is the crucial question. It would be
the person authorised to let out the building
and to recover rent from the tenants.
Normally such person would be the owner of
the building. However, if the owner has
entered into a contract with some other
person authorising him to let out the vacant
building and to recover rent from the
tenants either as his agent or attorney it
may be that person who would be called
landlord within the definition of the said
term under the Act. Similar may be the case
when for the time being either by an order
of the Court or by operation of some law the
right to let out the building and recover rent
from the tenants vests in some person other
than the owner. (Emphasis added)
33. Even if the principles relied by the counsel for the
petitioners which was based on the preposition laid down by
the Allahabad High Court, while it was dealing with yet
another judgment reported in 1977 ARC 4, E.E. Dayal vs.
Phoolmani Dayal and others, there the Court was
dealing with a situation where a trust which was reposed to
a person to collect the rent, and the payment of the rent by
the tenant was made in view of the communication thus
received of creating a trust to collect the rent, there in
- 34 -
those circumstances, the respondents becomes the landlord
of premises. It was a case where the collection of rent was
made by the Principal Officer of the Trust and the mere fact
that the tenant was paying the rent to the trust or an officer
who was thus authorized to collect the rent, he was held to
be non suited for the purposes of Section 21(1)(a), to be
filed on behalf of a Registered Trust, which is not the case
at hand. An identical view has been expressed in para 45
and 46 of the said judgment, which yet again was based
upon altogether under a different context, where in para
45 the Coordinate Bench of the Allahabad High Court, was
dealing with the matters of Prem Chandra Pachayat vs.
Second Additional District Judge, Saharanpur, in a
judgment reported in 1978 ARC 394, where the occupant,
who was realizing the rent had initiated the proceedings
under Section 21(1)(a) on the pretext that he has obtained
a "Theka" of the building, so as to use the same as a
lodging house and the said "Theka", which was given in the
name of the applicant, who filed the release application
under Section 21(1)(a), has held that would not be falling
within the definition of landlord as was "The pleader",
only which is not the case at hand.
34. Similarly, in para 46, the reliance, on which has
been placed by the counsel for the petitioners is on the
basis of principles laid down in the matters of M.M. Kasim
vs. Manohar Lal Sharma and others reported in 1981
(3) Supreme Court Cases 36, whereby the Hon'ble Apex
Court was dealing with a comparative scrutiny of Bihar
Building (Lease, Rent and Eviction) Control, Act, 1947, so
far it relates to the definition of landlord given therein under
Section 2(d) of Bihar Statute, that those similar implications
- 35 -
of it to Section 3(j) of the Act No.13 of 1972, which is the
case at hand, wherein the Hon'ble Apex Court has observed
that there is a marked distinction, as far as the definition of
the landlord in the two Acts are concerned because of the
explanation which was provided, under Section 11(c) of the
Bihar Rent Control Act of 1947, whereby in its explanation
the word landlord, was excluding the agent specifically by
incorporation under law, in view of Sub Section (d) of
Section 2 of the said Act which will not apply in the present
case under Act No.13 of 1972.
35. Since the counsel for the petitioner had
specifically drawn the attention of this Court towards the
effect of the terms, an agency and an attorney holder,
initiating the proceedings under Section 21(1)(a) in
response to it, it would be necessary to deal with the
counter plea taken by the respondents to the effect that
first of all there was no attorney which was executed in
favour of the respondent/landlord for the reason being that
at the time when the release was filed he was acting as
landlord collecting rent, the fact not denied by petitioners,
on behalf of Chunni Begum, who later on had met with the
sad demise after executing the will in favour of the
respondent/landlord, who was subsequently judicially held
to be the owner of the property in a regular proceedings
decided by the court of Additional Chief Revenue
Commissioner, in his favour and further more because the
respondent herein his status of being an attorney of Chunni
Begum, was never proved or even attempted to be proved,
besides it, will loose its significance, because later on
Chunni Begum has met with the sad demise and
respondent landlord was determined to be the landlord,
- 36 -
hence the plea of agent or attorney holder will have no
relevance, coupled with the fact that it is also substantiated
from the fact that the regular proceedings have already
held the respondent to be the owner and landlord of the
property, hence, the said plea would be barred by the
principle of constructive resjudicata, also apart from the
fact that the petitioners themselves have given away their
plea to raise any objection in that regard in view of the
admissions, which is already made by him in the
proceedings before the court below and coupled with the
fact that in the absence of there being any plea raised to
the contrary with regards to opposing the relationship of
landlord and tenant between the petitioners and the
respondent/landlord. Thus, the defence taken by the
counsel for the petitioners in the light of the aforesaid
judgment of 2014 (3) ARC 106, Ganga Ram Singh vs.
Additional District Judge and Others and 2014 (2) 144,
Mam Chand and others vs. Pramodini Srivastava and
others, would not be applicable for the reasons already
assigned above.
36. As such in view of the reasons already given
above, the issue has already been settled and both the
courts below have recorded a concurrent finding of fact in
relation to the bonafide requirement and in relation to the
availability of the accommodation with the
petitioners/tenant, which is situated vertically opposite to
the tenement in question, I do not find any merit in the writ
petition, consequently, the writ petition fails and is
accordingly, dismissed.
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37. The petitioner/tenant is directed to hand over the
vacant and peaceful possession of the tenement to the
landlord within 30 days from the date of receipt of certified
copy of this judgment, failing which it will be open for the
respondent/landlord to get release order executed as per
law.
(Sharad Kumar Sharma, J.)
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