Sangram Singh Chaudhary vs Musharaf Ali Ansari
2023 Latest Caselaw 1911 UK

   HIGH COURT OF UTTARAKHAND AT NAINITAL

                Writ Petition (M/S) No. 1552 of 2023

Sangram Singh Chaudhary                             .....Petitioner.

                                       Versus
Musharaf Ali Ansari                                 .... Respondent
Present :
Mr. M.S. Bhandari, Advocate, for the petitioner.
                                                   Reserved on : 25.05.2023
                                                   Delivered on : 24.07.2023

                                JUDGEMENT

Hon'ble Sharad Kumar Sharma, J.

The present Writ Petition has been preferred by the petitioner/tenant under Article 227 of the Constitution of India, seeking to exercise its supervisory jurisdiction under Article 227 of the Constitution of India, over the concurrent judgments dated 24th July, 2018, as it was rendered by the learned Trial Court / Civil Judge (Senior Division)/ Prescribed Authority, Pauri Garhwal, in Rent Control Case No. 6 of 2013, Musharaf Ali Ansari Vs. Sangram Singh Chaudhary, whereby, in a proceeding held under Section 21 (1) (a) of the U.P. Urban Buildings (Regulation of Letting, Rent & Eviction) Act, 1972, the release application preferred by the respondent / landlord, has been allowed. On a further challenge being given to the judgment of the Prescribed Authority before the Appellate Court of the District Judge, Pauri Garhwal, under Section 22 of the Act No. 13 of 1972, in Rent Control Appeal No. 56 of 2018, Sangram Singh Chaudhary (now deceased), who is herein now represented through his heirs of late Musharaf Ali Ansari, the Appeal thus preferred by the petitioner/tenant, has been dismissed by

the Appellate Court, thereby confirming the release of the tenement, in question, in favour of the landlord / respondent.

2. Brief facts as involved in the case are, that the tenement, in question, of which, the respondent is the landlord, is situated in Ward No. 4, Jail Gadhera, House No. 248, Khet No. 104, having a bandobasti No. 136, which constitutes of two Khani shops situated on the ground floor and a residential accommodation located on the first floor constituting of two rooms and a toilet, which was under the tenancy of the present petitioner. It was when the landlord / respondent felt the necessity for the release of the accommodation, it is contended by the respondent /landlord, and as also apparent from the records, that notice under the 1st proviso to Section 21 (1) (a) of Act No. 13 of 1972, was issued by the respondent / landlord on 11th April, 2012, giving an intimation to the petitioner/tenant to vacate the premises, as the same was required for his personal need and to accommodate his family in the residential accommodation situated on the first floor.

3. In the notice, thus issued, it was contended that the property, in question, was initially purchased by late Mr. Mangal Singh, the father of the landlord, from one Mr. Anand Singh, as back as in March, 2011.

4. It was further contended by the landlord, that immediately at the time of purchase itself, late Mr. Mangal Singh, had informed the tenant about the so called purchase by Mr. Musharaf Ali Ansari. In the notice thus sent on 11th

April, 2012, the landlord had intimated, that the tenant had defaulted in remittance of rent ever since 2011 till the serving of the notice on 11th April, 2012, and as a consequence thereto, he was ranked defaulter in the remittance of the rent amount, which was due to be paid @ Rs. 1,000/- per month, which was shown to be amounting a total amount of Rs. 13,000/-.

5. Apart from the aforesaid notice, the landlord had also sent an another notice under Section 106 of the Transfer of Property Act, by virtue of a registered post on 14th May, 2012, giving an intimation, that since, the tenant/petitioner has defaulted in regular remittance of the rent and after issuance of the notice under Section 106 of the Transfer of Property Act, on 14th May, 2012, even since then, neither the rent was remitted nor the tenement, in question was vacated, it was intimated in the notice, that after the expiry of 30 days period thereof, the petitioner as a consequence, had became an unauthorised occupant of the tenement, in question.

6. When despite of the aforesaid two notices dated 11th April, 2012 and 14th May, 2012, when the vacant possession of the tenement, in question, which has been described above, was not handed over, the landlord / respondent had issued a notice on 6th July, 2012, through his Advocate, wherein, he had sought the vacation of the tenement as described above, expressing his need, that since he needs the accommodation for expansion of his business and the need to accommodate his family, in the notice dated

6th July, 2012, was observed to be as a notice under the proviso to Section 21 (1) (a) of Act No. 13 of 1972.

7. In the notice, it was further observed that the aforesaid property, which initially belonged to Mr. Mangal Singh, he had purchased the property by virtue of a sale deed of 8th March, 2011, and accordingly, after the said purchase, the landlord was recorded in the revenue records, and hence, after the aforesaid purchase made by the landlord, it is not in controversy, that the relationship of landlord and tenant had legally developed between the petitioner and the respondent over the tenement, in question.

8. When despite of the aforesaid three notices, when the accommodation was not vacated, the landlord/respondent was constrained to file a release application on 2nd May, 2013, seeking release of the accommodation, i.e. the tenement, in question, which was numbered as Rent Control Case No. 6 of 2013, Musharaf Ali Ansari Vs. Sangram Singh Chaudhary, and in the pleadings thus raised in the release application, the landlord has come up with the case (though with a repetition) that the tenement, in question, was required for expansion of the business of the landlord, as well as for the need of the family. He further submitted, that the landlord, who was running a shop under the name and style of "Amar Cloth House" on the ground floor of the tenant's son building, he is willing to vacate the same, and coupled with the fact, that the residential accommodation on the first floor, in fact, the tenant is not utilizing the same and the same is kept locked, as such, in view of the satisfaction of the

conditions contained under the first proviso to Section 21 (1)

(a) of Act No. 13 of 1972, the release was sought by filing the aforesaid proceedings under Section 21 (1) (a) of Act No. 13 of 1972.

9. The basic intention of the effect of the proviso to Section 21 (1) (a) of Act No. 13 of 1972, as to at what stage the notices contemplated therein are required to be given by the landlord, who is the subsequent purchaser of the property by a sale deed, for the purposes of seeking release of the tenement in question or with regard to at what stage, and under what circumstances, the six months' notice as provided to the proviso under Section 21 (1) (a) is to be complied with was primarily dealt with by the Hon'ble Apex Court initially in a judgement as reported in (2001) 8 SCC 540, Anwar Hasan Khan Vs. Mohd. Shafi and others.

10. The Hon'ble Apex Court wherein in its paragraphs 8 and 10 of the said judgement, which are extracted hereunder, has observed that the basic objective of the Act No. 13 of 1972, so far as it relates to the provisions contained under the first proviso to Section 21 (1) (a) of the Act is concerned, it basically intended to ensure that unscrupulous litigation that may not be permitted to be nurtured to be proceeded with by the subsequent purchaser on transfer of property for the purposes of creating ground for eviction of the tenement.

"8. It is settled that for interpreting a particular provision of an Act, the import and effect of the meaning of the words and phrases used in the statute

has to be gathered from the text, the nature of the subject matter and the purpose and intention of the statute. It is cardinal principle of construction of a statute that effort should be made in construing its provisions by avoiding the conflict and adopting a harmonious construction. The statute or rules made thereunder should be read as a whole and one provision should be construed with reference to the other provision to make the provision consistent with the object sought to be achieved. The well-known principle of harmonious construction is that effect should be given to all the provisions and a construction that reduces one of the provision to a "dead letter" is not harmonious construction. With respect to law relating to interpretation of statute this Court in Union of India & Ors. v. Filip Tiago De Gama of Vedem Vasco De Gama held:

"The paramount object in statutory interpretation is to discover what the legislature intended. This intention is primarily to be ascertained from the text of enactment in question. That does not mean the text is to be construed merely as a piece of prose, without reference to its nature or purpose. A statute is neither a literary text nor a divine revelation. "Words are certainly not crystals, transparent and unchanged" as Mr. Justice Holmes was wisely and properly warned (Towne v. Eisner 245 US 418, 425 (1918)] learned (sic)and, J., was equally emphatic when he said" : "Statutes should be construed, not as theorems of Euclid, but with some imagination of the purpose which lie behind them." (Lenigh Valley Coal co. V. Yensavage 218 FR 547, 533]."

10. Keeping in mind the object of the Act to provide safeguards to the tenant, the first proviso to Section 21 of the Act was added to ensure that the unscrupulous litigants do not transfer properties only for the purposes of creating grounds for eviction of the tenant in occupation thereof. The aforesaid proviso, however, was not intended to put any restriction upon the owners of the property not to transfer it under any

circumstances. To ensure that the sale transaction was valid and not malafide, a statutory bar was created vide aforesaid proviso for the transferee to seek the eviction of the tenant with respect to such purchased property. The proviso mandates that no application shall be entertained by the Prescribed Authority on the grounds mentioned in clause (a) of sub-section (1) of Section 21 of the Act unless a period of three years had elapsed since the date of such purchase. It further provides that no application under the said clause shall be entertained unless the landlord had given a notice to the tenant not less than six months before the filing of such application and such notice may be given even before the expiration of a period of three years. The object of the service of the notice is to furnish information to the tenant about the requirement of the landlord in order to enable him to search for an alternative accommodation or to find out as to whether the scale made by his erstwhile owner was a genuine and bonafide or not. The proviso and the notice contemplated under it was never intended to be permanent clog on the rights of the purchaser. The period contemplated for not initiating the eviction against the tenant on the ground as specified in clause

(a) of sub-section (1) of Section 21 of the Act was intended to be for a period of three years and in no case for more than three years and six months. Any proceedings initiated for release of building under occupation of tenant on the aforesaid ground after the period contemplated under the aforesaid proviso does not require the service of aforesaid notice of six months."

11. The aforesaid proviso was basically intended to put a certain restriction upon the owner of property, not to transfer it under any circumstance whatsoever at least for 3 years, and the basic objective of the aforesaid proviso was to ensure, that the sale transaction was valid and was not malafide oriented to take the advantage of institution of the proceedings under Section 21 (1) (a). The guiding factor to

the proviso, where it provides that no application under the said clause would be entertained unless the landlord has given a notice to the tenant of not less than 6 months before filing of the application, such notice may be given even before the expiry of a period of 3 years. The basic objective of the cut off provided for 3 years from the date of the purchase for the purposes of furnishing the notice was required, where the information was to be given to the tenant about the requirement of the landlord to enable him to search his alternative accommodation, and to enable him to put his house in order.

12. On a harmonious construction of second proviso to Section 21 (1) (a), with regard to the necessity of giving of a notice of 6 months prior to the initiation of the proceedings under Section 21 (1) (a), and a restrained of entertainment of an application under Section 21 (1)(a) prior to the 3 years of purchase, the cardinal principle of construction of the statute, it has had to be made in reference to make the provision and its underlying objective consistent to the object to be achieved. That means, it has to be given effect to, to make all the provisions effective and construction that reduces one of the provisions as to be a dead letter, which cannot be permitted because all the provisions have got their own intention and objective to be met with, may be conjointly or separately.

13. The details as to how the title had devolved upon, the landlord / respondent was also detailed in the release application contending thereof, that the tenement, in

question, is an old construction of 20-22 years of age and that the tenancy of the petitioner and his predecessors have been since 1991, and later on, since the two portions of the tenement, i.e. the shop, in question, and the residential accommodation on the first floor was having an independent rent, the proceedings under Act No. 13 of 1972, for seeking the vacation of the premises, was therefore required.

14. In support of his release application, the landlord / respondent has submitted, that the need of the tenant / petitioner is not an exigent need for the reason being, that the son of the tenant has already built a construction of a two storey building, which constitutes of a commercial, as well as the residential accommodation, and in that view, since the tenant and his family members, have already constructed a building in the same municipal area, their need would not be justified nor any defence as such would be available to them in the light of the provisions contained under Explanation (i) to Section 21 (1) (a) to be read with Section 12 (1) (c) of Act No. 13 of 1972, which is extracted hereunder :-

"Explanation. - In the case of a residential building -

(i) where the tenant or any member of his family [who has been normally residing with or is wholly dependent on him] has built or has otherwise acquired in a vacant state or has got vacated after acquisition a residential building in the same city, municipality, notified area or town area, no objection by the tenant against an application under this sub-section shall be entertained.

[Note. For the purposes of this clause a person shall be deemed to have otherwise acquired a building, if he is occupying a public

building for residential purposes as a tenant, allottee or licensee]."

15. On presentation of the release application on 2nd May, 2013, the notices were issued, upon which, the petitioner / tenant had put in appearance on 4th September, 2013, and has filed his written statement. The plea taken by the landlord in his release application with regard to the construction of the building by his son in the same locality, in para 4 of the written statement, was in fact, a very placid reply has been given by the petitioner/tenant to the effect, that so far as the availability of accommodation and the construction having been made by the son of the tenant, a very vague pleading was raised to the effect, that since, the tenant has got no control over the accommodation, thus constructed by his son, owing to their strained relationship, the bar created by Explanation (i) to Section 21 (1) (a) to be read with Section 12 (1) (c) of Act No. 13 of 1972, would not be attracted.

16. The second plea, which was taken by the tenant, while opposing the release application was, that the provisions of Act No. 13 of 1972, would not be attracted, and as such, the release application was not sustainable, and hence, deserves to be dismissed.

17. It was further pleaded by the tenant, that there is no bona fide need of the landlord. In fact, it was an artificial need, which was developed by the landlord, as expressed in the release application, for seeking vacation of the premises.

Besides this, he has also denied that he occupies only two rooms which are on the first floor and, in fact, there is no toilet attached to it, which could be said to be part of the tenement, which is hereby sought to be released.

18. In fact, this plea taken in para 11 of the written statement is in self contradiction to the contents of para 11 of the written statement, where the tenant accepts the fact, that on the first floor, there exits two rooms, which are under his tenancy along with the toilet.

19. He further pleaded that so far as the commercial accommodation of the ground floor is concerned, these are two khani shops, in which, the tenant runs the business under the name and style of "Himalayan Cloth Centre" and he claims, that his tenancy over the accommodation was ever since 1955 and 1960.

20. In order to carve out a further complication into the pleadings raised in the release application, the tenant has pleaded, that so far as the remaining part of the two khani shops are concerned, in the other part, the brother of the tenant is also running a business under the name and style of "Chaudhary Ki Shop". As such, he contends that the tenanted accommodation on the ground floor of the property, i.e. Jail Gadhera, H.No. 248, in fact, the tenant and his brother were independently engaged in the business in the two khani shops on the ground floor.

21. The tenant, though without any authority being vested with upon him under law, had contended that the so called claim of the landlord, having purchased the property on 8th March, 2011, on the basis of a proposal extended by the erstwhile owner of selling the tenement, in question, on the basis of the principle of first come first receive, the tenant contends that had he got the knowledge about the alleged proposal of sale of the erstwhile owner to sell the property, the tenant claims, that he himself could offer to purchase the property himself. But this ground would be artificial in itself, for the reason being, that the tenant in his written statement, has admittedly pleaded, first to be a tenant and there being an existence of a relationship of landlord and tenant. Secondly, he admitted the fact of having occupying the accommodation on the rent as pleaded in the release application, coupled with its arrear as depicted in the notices which were issued under Section 106 of the Transfer of Property Act, as it was issued on 14th May, 2012, by the landlord. Hence, the philosophy sought to be developed by the landlord, that he would have been probably one of the purchasers of the tenement, in question, is out of picture to be considered, in this case particularly when he actually as on date of filing of the written statement, admits the status of the present respondent as to be the landlord of the property, in question.

22. In para 13 of the written statement, the tenant has pleaded, though very vaguely, that the tenanted shop, which is existing in Ward No. 4, he contended that there is no other commercial or residential accommodation, which is

available, and since, his son is major and married and is unemployed, his need would be more hard pressing as compared to that of the landlord, as expressed in the release application.

23. He took a plea, though not sustainable at the stage, when the proceedings were drawn before the learned Prescribed Authority on its merit, where, he contended that the release application under Section 21 (1) (a) of Act No. 13 of 1972, would be barred by the first proviso of Section 21 (1) (a) of Act No. 13 of 1972, which reads as under :-

"Provided that where the building was in the occupation of a tenant since before its purchase by the landlord, such purchase being made after the commencement of this Act, no application shall be entertained on the grounds, mentioned in clause (a), unless a period of three years has elapsed since the date of such purchase and the landlord has given a notice in that behalf to the tenant not less than six months before such application, and such notice may be given even before the expiration of the aforesaid period of three years:"

24. The first proviso creates an embargo for the landlord to initiate the proceedings under Section 21 (1) (a) of Act No. 13 of 1972, within a period of three years from the date of alleged purchase. In fact, the institution of the proceedings after the purchase and within the expiry of period of three years is not barred under law. The only aspect which is required to be considered is, that the actual release of the said accommodation, has had to be made only after the expiry of three years period from the date of purchase by the landlord, which in the instant case, happens

to be by virtue of the judgement of 24th July, 2018, as it has been rendered by the Prescribed Authority, which obviously happens to be much beyond the prescribed period of three years from the date of the admitted purchase by the landlord, i.e. 8th March, 2011.

25. Hence, the implications contained by the proviso and the manner in which, it has been ever pleaded in the written statement, will not be attracted in the instant case, and particularly more, when during the course of proceedings before the Prescribed Authority, no attempt has ever been made by the tenant to bring the release application within an ambit of first proviso to Section 21 (1) (a) of Act No. 13 of 1972 or within the ambit of embargo created by Explanation

(i) to Section 21 (1) (a) to be read with Section 12 (1) (c) of Act No. 13 of 1972, as extracted above.

26. Even though, the law in this field is very settled, that if a party to the proceeding takes a defence about the maintainability of a release application under Section 21 (1)

(a) of Act No. 13 of 1972, then it is always a burden, which has to be discharged by the tenant, who thus claims a defence with regard to the aforesaid statutory bar in his favour and the person who takes the defence, he has to discharge his burden to prove the same even otherwise as per the provisions contained under Section 101 of the Evidence Act.

27. Thus, on account of failure on the part of the tenant to establish the two facts, which were pleaded by him by way of his defence in the written statement, none of the

grounds as pleaded by him with regard to the embargo created by the first proviso to Section 21 (1) (a) or by Explanation (i) to Section 21 (1) (a) of the Act No. 13 of 1972, would be attracted.

28. The tenant, in the written statement, has further in his advisory capacity has suggested, that the need as expressed by the landlord in the release application would not be tenable in the eyes of law, for the reason being that the tenement, in question, which is admittedly to be a four floor building, the tenant has contended that the landlord has got two or three rooms and the 3rd and 4th floor which could be used by them for the commercial purposes. Though this is a fact, which is admitted by the tenant, that the accommodation, apart from the ground floor of the tenement, in question, was a residential accommodation and the use of the residential accommodation to a commercial accommodation, though is not specifically barred under law, but then too, the tenant cannot in the capacity of enjoying the relationship of a landlord and the tenant cannot sit in an advisory capacity to suggest the landlord to use the other accommodation for meeting up the need as expressed in the release application.

29. There are two aspects, which are very important to be observed at this juncture, that the tenant in contradiction to his evidence, which was adduced in the proceedings before the Prescribed Authority, at one hand, he pleads that the accommodation, which was built up by his son is not available for his use for the reason being, that there was a

strained relationship between the tenant and his son and that the accommodation which was constructed by the son of the tenant was not available to him. At least by this pleading, he admits one aspect, that in the same municipal area, i.e. Ward No.4, the son of the tenant has admittedly raised a construction of the nature as described in the release application. The strained relationship, which was taken as an escape goat argument is not available to the tenant, when he failed to establish that there was a strained relationship with the son and that the accommodation built by him was not available to him.

30. One of the most important aspect, which is to be considered, while deciding this Writ Petition in the context of the bona fide need of the landlord as compared to that of the tenant is that, in the entire written statement or for that matter in any other pleading at later stage, as developed by the tenant, nowhere it has been pleaded by the tenant, and particularly at the first available opportunity of filing of the written statement on 4th September, 2013, that the tenant had made or taken any positive step to look for an alternative accommodation as soon as the release itself was filed on 2nd May, 2013, or at least prior to it, when the first notice for vacating the premises was issued on 11th April, 2012. That too looking for an alternative accommodation as per the rent laws, i.e. under Section 16 of the Act.

31. In that eventuality, in the absence of there being any pleading established by law and evidence, since the tenant has failed to look for an alternative accommodation,

the presumption would be, that the need of the tenant was not at all bona fide, and hence in an event of issuance of the judgment of eviction, he would not suffer any hardship as such, which is one of the basic elements to be considered, when the release application under Section 21 (1) (a) of Act No. 13 of 1972, is considered by the learned Prescribed Authority.

32. This Court is of the view, that in the absence of plea with regard to making of an effort by the tenant to look for an alternative accommodation after the filing of the release or at least at the stage of issuance of the notice under the proviso to Section 21 (1) (a) of Act No. 13 of 1972, the tenant has to plead specifically at the stage of the first available opportunity, that he had made any positive effort for making an effort for finding an alternative accommodation, particularly in the light of the provisions contained under Section 16 of Act No. 13 of 1972. There is no such evidence on record brought by the tenant. Thus, the reason for release would be mere justified in favour of the landlord, contrary to that of the tenant.

33. The Hon'ble Apex Court in a judgment as reported in (1999) 6 SCC 222, Shiv Sarup Gupta Vs. Dr. Mahesh Chand Gupta, while dealing with the aspect of bonafide requirement of the landlord in a proceeding under Section 21 of Act under 1972, has observed that the landlord's bonafide need would be deemed to exist until and unless the tenant is able to establish by evidence with regard to his effort for search made for an alternative

accommodation. Merely because of the fact, that the landlord has got number of other accommodations, landlord's subjective choice from amongst the other accommodations, than the one accommodation available to him, has had to be respected and the Court has to satisfy after applying the objective standard regarding the bonafide need of the landlord for the premises or the additional premises. The Court has not to act upon or impose a wisdom as to which tenement or part of the building which the landlord owns could best suit for his purpose. Relevant paragraph 13 and 14 is extracted hereunder:

"13. Chambers 20th Century Dictionary defines bonafide to mean 'in good faith : genuine'. The word 'genuine' means 'natural; not spurious; real: pure: sincere'. In Law Dictionary, Mozley and Whitley define bonafide to mean 'good faith, without fraud or deceit'.

Thus the term bonafide or genuinely refers to a state of mind. Requirement is not a mere desire. The degree of intensity contemplated by 'requires' is much more higher than in mere desire. The phrase 'required bonafide' is suggestive of legislative intent that a mere desire which is outcome of whim or fancy is not taken note of by the Rent Control Legislation. A requirement in the sense of felt need which is an outcome of a sincere, honest desire, in contra-distinction with a mere pretence or pretext to ev.ict a tenant, on the part of the landlord claiming to occupy the premises for himself or for any member of the family would entitle him to seek ejectment of the tenant. Looked at from this angle, any setting of the facts and circumstances protruding the need of landlord and its bonafides would be capable of successfully withstanding the test of objective determination by the Court. The Judge of facts should place himself in the arm chair of the landlord and then ask the question to himself-whether in the given facts substantiated by the landlord the need to occupy the premises can be said to be natural, real, sincere, honest. If the answer be in the positive, the need is

bonafide. The failure on the part of the landlord to substantiate the pleaded need, or, in a given case, positive material brought on record by the tenant enabling the court drawing an inference that the reality was to the contrary and the landlord was merely attempting at finding out a pretence or pretext for getting rid of the tenant, would be enough to persuade the Court certainly to deny its judicial assistance to the landlord. Once the court is satisfied of the bonafides of the need of the landlord for premises or additional premises by applying objective standards then in the matter of choosing out of more than one accommodation available to the landlord his subjective choice shall be respected by the court. The court would permit the landlord to satisfy the proven need by choosing the accommodation which the landlord feels would be most suited .for the purpose; the court would not in such a case thrust its own wisdom upon the choice Of the landlord by holding that not one. but the other accommodation must be accepted by the landlord to satisfy his such need. In short, the concept of bonafide need or genuine requirement needs a practical approach instructed by realities of life. An approach either too liberal or two conservative or pedantic must be guarded against.

      14.   The      availability   of   an      alternate
accommodation       with     the   landlord     i.e.    an

accommodation other than the one in occupation of the tenant wherefrom he is sought to be evicted has a dual relevancy. Firstly, the availability of another accommodation, suitable and convenient in all respects as the suit accommodation, may have an adverse bearing on the finding as to bonafides of the landlord if he unreasonably refuses to occupy the available premises to satisfy his alleged need. Availability of such circumstance would enable the Court drawing an inference that the need of the landlord was not a felt need or the state of mind of the landlord was not honest, sincere, and natural. Secondly, another principal ingredient of clause (e) of sub-section (1) of Section 14, which speaks of non-availability of any other reasonably suitable residential accommodation to the landlord, would not be satisfied. Wherever another

residential accommodation is shown to exist as available than the court has to ask the landlord why he is not occupying such other available accommodation to satisfy his need. The landlord may convince the court that the alternate residential accommodation though available is still of no consequence as the same is not reasonably suitable to satisfy the felt need which the landlord has succeeded in demonstrating objectively to exist. Needless to say that an alternate accommodation, to entail denial of the claim of the landlord, must be reasonably suitable, obviously in comparison with the suit accommodation wherefrom the landlord is seeking eviction. Convenience and safety of the landlord and his family members would be relevant factors. While considering the totality of the circumstances, the court may keep in view the profession or vocation of the landlord and his family members, their style of living, their habits and the background wherefrom they come."

34. The Coordinate Bench of Allahabad High Court in a judgement reported in ARC 1992 (2) 404, Faiz Mohammad Vs. District Judge, Jhansi and others, in paragraph 3 has almost laid down the same principle that when during the course of the tenancy of the prolonged litigation under Section 21 (1), if the tenant has not looked for an alternate accommodation, or has failed to have proved, to have looked for an alternative accommodation, his need would be compared to be more bona fide as compared to that of the landlord. The relevant para 3 is extracted here under:-

"3. Learned Counsel next contended that the finding of the Prescribed Authority as well as of the District Judge on the point of comparative hardship is erroneous. I have examined the judgment of both the Courts below and in my opinion they have rightly held that the landlord will suffer greater hardship in the event of refusal of the release application. It may be noticed that though the release application was filed on 18-2-1985 and is pending for about seven years, the

petitioner-tenant did not make any effort whatsoever to get an alternative accommodation. It is well settled that conduct of the tenant in not making effort for an alternative accommodation for himself is a relevant consideration for deciding the question of comparative hardship. The findings on the questions of bona fide need and comparative hardship are based upon evidence and being findings of facts cannot be interferred with in a writ petition under Article 226 of the Constitution."

35. In response to the written statement, a replication was filed by the landlord, being Paper No.23-Ga, and he denied all the defence which were taken by the tenant about his bona fide need and more particularly, on the two questions of maintainability of the release application, and the so called strained relationship of the tenant with the son, due to which, the admitted alternative accommodation which was available, could not have been utilized by the tenant, which ultimately found to be a vague plea by both the Courts below.

36. At a much belated stage, the tenant had filed an amendment application, seeking amendment in the release application by filing the same on 4th June, 2016, whereby, seeking a minor amendment in the pleadings which were initially raised in the written statement. The amendment application was opposed by the landlord, but however, the same was allowed on 2nd August, 2016, and in addition to it, the landlord has filed a replication to it.

37. The tenant as an afterthought, and by way of filing a supplementary affidavit in support of the written

statement on 18th November, 2016, has pleaded by way of reiteration of fact, that the release application under Section 21 (1) (a) of Act No. 13 of 1972, was not maintainable because of the bar created by the first proviso to Section 21 of the Act No. 13 of 1972.

38. The landlord, in opposition to the said supplementary affidavit filed by the tenant, had filed his reply on 2nd December, 2016, on the ground that the so called proclaimed supplementary affidavit which was filed by the tenant on 18th November, 2016, cannot be read in support of the additional plea, for the reason being that filing of the supplementary affidavit by the tenant on 18th November, 2016, was in fact, in continuation to the compliance of the order dated 2nd August, 2016, as it was rendered by the Prescribed Authority, on the amendment application, being paper No.57-A, preferred by the tenant, and since, the supplementary affidavit filed on 18th November, 2016, was beyond the scope of the order of 2nd August, 2016, as passed on the amendment application, the said plea cannot be taken into consideration, though apparently, on the face of the record, the intention of the first proviso already stood satisfied for the reasons already observed above by this Court. Apart from, in a civil proceedings, no supplementary affidavit could be read as to be the part of the pleadings, as it has been held by the Hon'ble Allahabad High Court in a judgment reported in AIR 1986 Allahabad 154, J.C. Reddy Vs. State of U.P. and others. Relevant para 32 is extracted hereunder :-

"32. As far as gratuity is concerned, the petitioner made his submission in a supplementary affidavit filed on 10-1-1985. He has assailed validity of the Government Order dated 30th March 1983. He has made no such averment in the writ petition. No relief has. been sought in respect of the said Government Order. In a writ petition, the petitioner can raise new grounds by amending the petition and adding new paras and reliefs. He is not entitled do so by filing a supplementary affidavit only. As the petitioner has not amended the petition and has not sought any relief in respect of the Government Order, we are unable to consider the submissions made in the supplementary affidavit."

39. In response to the reply submitted by the landlord to the supplementary affidavit of the tenant, a replication was filed by the tenant by way of an additional written statement on 4th February, 2017.

40. On the exchange of pleadings in the proceedings, which were held on 2nd August, 2016, 18th November, 2016, 2nd December, 2016 and 4th February, 2017, the learned Prescribed Authority, dealt with the effect of filing of the supplementary affidavit by the tenant under the garb of an order dated 2nd August, 2016, of allowing the amendment application. The Prescribed Authority on 7th February, 2017, has passed an order to the effect, that the supplementary affidavit filed by the tenant on 18th November, 2016, in compliance of the earlier order dated 2nd August, 2016, by adding a pleading beyond the ambit of the order dated 2nd August, 2016, while considering the amendment application of the tenant cannot be considered in continuation to the written statement because the learned Prescribed Authority in

its order dated 7th December, 2017, has observed that the amendment of 2nd August, 2016, granting permission to the tenant to amend the written statement was only limited to the extent of the correction of typographical error, as it was then sought for by the tenant by filing an amendment application on 4th June, 2016.

41. The Prescribed Authority in its order of 7th February, 2017, has observed that, any amendment made beyond the order dated 2nd August, 2016, would not be permissible because, as it was not having any sanction of law, and hence, same was declined to be read in continuation to the pleading of written statement filed by the tenant before the learned Prescribed Authority.

42. Though not maintainable, but the tenant without there being any specific provision of Revision, either contemplated under the Act No. 13 of 1973, or under the General Civil Rules, has preferred a Civil Revision, being Civil Revision No. 1 of 2017, contending himself to be aggrieved by an order dated 7th February, 2017, before the Court of District Judge.

43. The learned District Judge by an order dated 2nd June, 2018, rightly so after considering the impact of the exercise of revisional jurisdiction, has declined to entertain the Revision and it was accordingly, dismissed on 2nd June, 2018. Even this Court is of the considered view, that the power of Revision under a Special Act, which contemplates a proceeding to summary in nature, would only be provided to

an aggrieved person subject to the condition, that the provisions of Revision in itself is self contained under the Special Act, and since, there is no power of Revision under Act No. 13 of 1972, particularly in the proceedings held under Section 21 (1) (a) of Act No. 13 of 1972, except for the Revision provided under Section 18, and the cases falling within its ambit, since no Revision would lie, the Revision preferred by the tenant, being Civil Revision No. 1 of 2017, against the order of 7th February, 2017, would not be maintainable.

44. However, the petitioner/tenant, being aggrieved against the order of 7th December, 2017, and the Revisional order dated 26th March, 2018, had preferred a Writ Petition, being Writ Petition No. 1402 of 2018, which was decided by the Coordinate Bench of this Court by the judgment dated 18th May, 2018, whereby, the Coordinate Bench of this Court has observed, that the learned Prescribed Authority, while deciding the release application preferred by way of Rent Control Case No. 6 of 2013, would first consider the issue of maintainability of the release application as a primary issue. The relevant direction issued by the Coordinate Bench is extracted hereunder :-

"7. Without expressing any opinion on the merits of the case, the writ petition is disposed of with a request to the learned Prescribed Authority to consider the issue regarding maintainability of the release application in the light of the bar created by Proviso to Section 21 (1) (a) of U.P. Act No. 13 of 1972 as a preliminary issue before proceeding any further in the matter."

45. As a consequence of the order / judgment of the Coordinate Bench dated 18th May, 2018, the learned Prescribed Authority on 30th June, 2018, had decided the issue of maintainability of the release application and consequently, it has held that the bar of the first proviso to Section 21 (1) (a) of Act No. 13 of 1972, would not be attracted and the release application thus preferred would be maintainable.

46. Further, the learned Prescribed Authority while rendering the judgment on 3rd June, 2018, had observed that the implications of Section 2 (1) (g), would be attracted because the son of the tenant, since would be falling within the definition of a family, any construction, which has been made by the son of the tenant within the municipal area of the tenement, in question, the bar of any defence would be attracted in the case of tenant, while putting a challenge to the release application. The learned Trial Court decided the issue of maintainability after the judgment of Coordinate Bench dated 18th May, 2018, the Prescribed Authority has decided the issue on 30th June, 2018.

47. What is important is that, this order of 30th June, 2018, as it was rendered by the Prescribed Authority, deciding the question of maintainability of the release because of the bar created under the first proviso to Section 21 (1) (a) of Act No. 13 of 1972, or because of the non availability of defence to the tenant due to impact of Explanation (i) to Section 21 (1) (a) to be read with Section 12 (1) (c) of Act No. 13 of 1972, which was not put to

challenge by the tenant at any subsequent stage before any superior forum available to him under law.

48. The logic behind that the question of jurisdiction has to be raised at the first available opportunity, so that a party to the litigation may not be forced upon to face a prolonged trail, and thereafter, at a fag end, if a question of jurisdiction is raised, it may have an ultimate consequence of calling upon the parties to reface the re-trial of the case because, in any case where the question of jurisdiction is involved, that has had to be argued at the initial stage so that the parties may be relegated to resort to their remedies, at an appropriate forum, at an appropriate time and stage. In principle, this is what has been postulated by the judgement reported in (2019) 3 SCC 594, Sneh Lata Goel Vs. Pushplata and others. Particularly in paras 13 and 14, the Court has observed that, if a question of jurisdiction may be of any nature for want of territorial jurisdiction or for want of pecuniary jurisdiction, the said question has to be raised at the initial stage. The reference to para 13 and 14 in itself are answer to the said question. Para 13 and 14 are extracted hereunder :-

"13. Sub-section (1) of Section 21 provides that before raising an objection to territorial jurisdiction before an appellate or revisional court, two conditions precedent must be fulfiled:

i) The objection must be taken in the court of first instance at the earliest possible opportunity; and

ii) There has been a consequent failure of justice.

This provision which the legislature has designedly adopted would make it abundantly clear that an objection to the want of territorial jurisdiction does not travel to the root of or to the inherent lack of jurisdiction of a civil court to entertain the suit. Hence, it has to be raised before the court of first instance at the earliest opportunity, and in all cases where issues are settled, on or before such settlement. Moreover, it is only where there is a consequent failure of justice that an objection as to the place of suing can be entertained. Both these conditions have to be satisfied.

14. Learned counsel appearing on behalf of the respondents has submitted that the objection as to the lack of territorial jurisdiction was raised in the written statement before the trial court. But evidently the suit was decreed ex-parte after the respondents failed to participate in the proceedings. The provisions of Section 21 (1) contain a clear legislative mandate that an objection of this nature has to be raised at the earliest possible opportunity, before issues are settled. Moreover, no such objection can be allowed to be raised even by an appellate or revisional jurisdiction, unless both sets of conditions are fulfilled."

49. Instead of raising a question about the competence of the Court to hear the matter has had to be raised at the first available instance, for the reason being, that if the converse is considered in a given set of circumstance, and if the parties to the proceedings, who is raising a plea of jurisdiction is ultimately a winner of the case, in that eventuality, with all reasonableness, he would never raise the question about the competence of the Court to decide the matter in his favour. Besides this, the question of jurisdiction is required to be ventured at the first instance so that if the Court lacks competence to decide the matter, parties to the proceedings may be relegated to an appropriate Court for the redressal of their grievance. But, once the parties to the proceedings have

faced the case without raising any objection as such in that regard, he cannot be permitted to do so at a later stage after losing the case. It has been prescribed by the Hon'ble Apex Court in a judgment as reported in AIR 1993 SC 1616, Rukmini Amma Saradamma Vs. Kallyani Sulochana and others.

50. Why this particular observation has been made by this Court is, that once the question of jurisdiction is decided by the Prescribed Authority by the judgment of 30th June, 2018, and the tenant has preferred an Appeal against the said order, at the stage of preference of an Appeal too, the Appeal thus preferred by the tenant under Section 22 of Act No. 13 of 1972, being Rent Control Appeal No. 56 of 2018, its relief clause becomes relevant to be observed at this stage for the reason being, that even in the relief clause of the Appeal as preferred on 23rd August, 2018, the tenant has not put a challenge to the order of 30th June, 2018, deciding the question of maintainability, and hence, at any stage thereafter, since the tenant would be estopped to raise a question about the maintainability of the release application under Section 21 (1) (a) of Act No. 13 of 1972. The relevant relief sought in the Appeal preferred by the petitioner / tenant is extracted hereunder :-

"vr% egksn; ls fuosnu gS fd voj U;k;ky; dk vk{ksfir vkns"k o fMdzh fnuakd 24-07-2018 dks vikLr dj vihykFkhZ dh vihy Lohdkj dj fjLiksaMsUV ¼izkFkhZ½ dk jsUV izkFkZuk i= la0 6 lu~ 2013] eq"kjZQ vyh valkjh cuke~ laxzke flag] vUrxZr /kkjk 21 ¼1½ ¼,½ mRrj izns"k vf/kfu;e la[;k 13 lu~ 1972 [kkfjt fd;s tkus dh d`ik dh tk;A"

51. In the Appeal preferred, the tenant, he took a plea by way of reiteration with regard to the maintainability of the release application and with regard to Explanation (i) to Section 21 (1) (a) to be read with Section 12 (1) (c) of Act No. 13 of 1972.

52. This Court is of the considered opinion, that once the preliminary issue deciding the question of maintainability by the judgment of 30th June, 2018, has not been subjected to a challenge before the superior forum, the tenant would be estopped to put a challenge to the same at any subsequent stage, because the law even otherwise goes to lay down, that the question of maintainability is a question to be raised at a first available instance and once it is decided against tenant, he would not be at liberty according to his choice to put a question concurrently already decided, when he has not challenged the same at the first available opportunity.

53. The Appeal thus preferred by the tenant stood dismissed by an order dated 24th February, 2013, and consequently, the present Writ Petition.

54. In this Writ Petition, there are only few questions, which are required to be considered, because otherwise, the Writ Petition is concluded by concurrent finding of facts. To summarise, the question as argued are:-

i. Whether the bar of proviso to Section 21 (1) (a) of Act No. 13 of 1972, would be attracted ?

ii. Whether the defence of the tenant would be prohibited by Explanation (i) to Section 21 (1) (a) to be read with Section 12 (1) (c) of Act No. 13 of 1972 ?

iii. What would be the effect, when the tenant admits the construction of building by his son in the same locality, and

(iv) In the absence of there being any plea by way of defence of having looked for an alternative accommodation after filing of the release on 2nd May, 2013, whether at all, the need of the tenant could be held to be bona fide ?

55. Owing to the aforesaid reasons, and ultimately for the conclusion, which has been drawn by this Court, for the purposes to summarize the issue as argued by the learned counsel for the applicant pertaining to the bar created by the proviso to Section 21 (1) (a) of the Act No.13 of 1972, the same would not be attracted under the facts and circumstances of the present case, particularly when prior to the institution of the proceedings under Section 21 of the Act No. 13 of 1972, the landlord has already issued notice on 11th April, 2012, and thereafter, on 14th May, 2012 and 6th July, 2012, i.e. much prior to the institution of the release application on 2nd May, 2013. As such, the cut-off date, which has been provided under the first proviso to Section 21 (1) (a) of Act No. 13 of 1972, for giving a prior notice to the filing of the release application stood satisfied in view of the notices, which have been issued by the landlord and the factum of its receipt when has not been denied by the tenant in his pleadings before the learned Court below.

56. In fact, if the effect of proviso to Section 21 (1)

(a) of Act No. 13 of 1972, is taken into consideration, it specifies that the prior notice of six months to vacate the premises has had to commence with effect from the date

prior to filing of the release by the landlord. In the instant case, since the purchase of the tenement was made by the landlord as back as on 8th March, 2011, and thereafter, the issuance of the notices since had been even much prior in time as provided under the proviso to Section 21 (1) (a) of the Act, and its parameters were already satisfied, it cannot be said that the proceedings under Section 21 (1) (a) of the Act No. 13 of 1972, as instituted on 2nd May, 2013, was barred by the effect of the proviso to Section 21 (1) (a) of the Act No. 13 of 1972.

57. The second question, which has ultimately emerged for consideration, and which has been summarised by this Court, as to whether, the defence is available to the tenant with regard to the prohibition created by the Explanation (1), which has already been extracted above.

58. It is a fact which is not disputed by the tenant, that his son has already constructed an accommodation, which is inclusive of the commercial and residential accommodation within the same municipal area, but the tenant had attempted to make a difference by articulating pleading contrary to records.

59. In that eventuality, if the definition of the family as given under the Act No. 13 of 1972, is taken into consideration as provided under Section 2 (g) of the Act No. 13 of 1972, the son of the tenant would be falling within the definition of family as extracted above. Merely the defence taken by the tenant, that the bar of Explanation (1) to Section

21 (1) (a) of the Act No. 13 of 1972, would not come into play, in this case because the tenant was having a strained relationship with his son is not an exception, which has been statutorily carved out by the Explanation (1) to Section 21 (1)

(a) of the Act No. 13 of 1972. It simplicitor provides that where any member of the family as provided and defined under Section 2 (g) of the Act No. 13 of 1972, has constructed a building within the same municipal area, no right of defence is available to the tenant as against the release application, which has been filed by the landlord, seeking release of the accommodation to meet his personal need. Hence, this question, which was argued by the learned counsel for the applicant is answered against him.

60. There is another perspective from which the issue would be dealt with, that the tenant, when he admits the factum of construction having being made by his son and raises a plea of Explanation (1) to Section 21 (1) (a) of the Act No. 13 of 1972, at the writ stage without raising any plea or defence taken before the Court either under Section 21 (1)

(a) of Act No. 13 of 1972, or at the stage under Section 22, construing the effect of Explanation (1) to Section 21 (1) (a) of the Act No. 13 of 1972, would always entail a scrutinization of evidence, and particularly, the plea taken by him by way of a defence pertaining to the strain relationship. In the absence of the pleading to the said effect, no benefit could accrue to the tenant, for the purposes of the effect of the Explanation (1) as given under Section 21 (1) (a) of Act No. 13 of 1972.

61. If the entire written statement, as it has been filed by the tenant, is taken into consideration, there is not even a single plea taken by him at any stage, nor any stand has been taken by him during the course of argument, that after filing of the release application on 2nd May, 2013, the tenant had ever looked for an alternative accommodation in accordance with the prescribed procedure provided under the Act No. 13 of 1972, by resorting to moving of an application under Section 16 of the Act No. 13 of 1972. In the absence of there being any effort made by the tenant to look for an alternative accommodation, the law itself creates a presumption in favour of the landlord, that in an event of eviction of the tenant from the accommodation, in question, in fact, it would be deemed that the landlord had more bona fide need as compared to that of the tenant, and as such, in an eventuality of allowing of the release application, the tenant would not suffer in the absence of there being any plea, and more particularly, the plea substantiated by evidence, that he made any effort to look for an alternative accommodation. Hence, this question too is answered against the tenant.

62. The case at hand is concluded by concurrent finding of fact. What impact would the concurrent finding would have in relation to the rent control cases, and what would be the scope of interference in the exercise of powers under Article 227 of Constitution of India, was dealt by the Hon'ble Apex Court in the judgement as reported in (2016) 9 SCC 414, Gulshera Khanam Vs. Aftab Ahmad, whereby, the Hon'ble Apex Court has rather kept the provisions under Article 227, at a common pedestal to the provisions

contained under the revision under Section 115 of the C.P.C. The Hon'ble Apex Court has observed that the concurrent finding of facts of Court below, cannot or it ought not to be interfered by the High Court casually unless there is a perversity in the findings to the extent, that no judicious person can ever reach to such a conclusion, which is not the case pleaded, argued or pressed by petitioner. Interference in the rent control matters, the scope of interference with the finding of fact, which is concurrent in nature in the exercise of its power under Article 227 of Constitution of India, has to be rarely gone into by the Constitutional Courts under Article 227 of Constitution of India. Relevant paras 32 and 37 are extracted hereunder :-

"32. Coming now to the facts of this case, keeping in view the principle of law laid down in the aforementioned case and on perusal of the order of the Prescribed Authority/Civil Judge and the first appellate court, we find that both the courts properly appreciated the facts and evidence adduced by the parties and on that basis recorded all necessary findings (detailed above) in favour of the appellant and granted decree of eviction against the respondent. This the Prescribed Authority/Civil Judge and the first appellate court could do in their respective jurisdiction and, in our opinion, both the courts rightly did it in the facts of this case.

37. In the light of aforementioned factual findings of the courts below, in our view, there was no justification on the part of the High Court to have probed into any factual issues again in depth by undertaking appreciation of evidence like a first appellate court and reversed the findings.

63. It has provided that the High Court would not be justified to have probed into any factual issue, going into the depth of the fact and by re-appreciation of evidence,

concurrently made by the Courts as that would be beyond the scope of the supervisory jurisdiction of High Courts under Article 227 of Constitution of India.

64. Since the Writ Petition is concluded by a concurrent finding of fact, the same would accordingly stand dismissed.

(Sharad Kumar Sharma, J.) 24.07.2023 Shiv