JUDGMENT Rakesh Tiwari, J.
1. Invoking extraordinary jurisdiction of this Court under Article 226 of the Constitution, this petition takes an exception to the judgment and decree dated 21.1.2004 appended as Annexure-10 to the writ petition in Rent Appeal No. 5 of 2003 Satya Pal Juneja v. Chandra Shekhar Azad Junior High School passed by Additional District Judge, Court No. 17, Kanpur Nagar.
2. Briefly stated, the facts of the case are that release application under Section 21(1)(a) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as 'the Act') was filed by the respondent-landlord on the ground that he alongwith his family members were residing at Sambhalpur, Orissa and he intends to shift at Kanpur.
3. The release application was contested by the tenant-petitioner by filing written statement, inter alia, that landlord had sufficient accommodation in his possession; he has concealed the accommodation in his possession; his two tenants-Sri Hemraj Uppal and Sri G.P. Dixit vacated and handed over peaceful possession to him; two sons and he himself is residing at Orissa and carrying on business at a very large scale; one son is residing at Mussoorie and only one son as well as a divorced daughter are residing at Kanpur.
4. It was also stated by the tenant-petitioner that during pendency of proceedings, another tenant. Sri Shakti Rai vacated the premises and a vacancy was declared and that apart, the landlord is having a big hall in his possession.
5. The prescribed authority vide judgment and order dated 29.10.2001 rejected the release application holding need of the landlord as not bona fide.
6. Aggrieved by the rejection of release application by the prescribed authority, the landlord preferred Appeal No. 5 of 2003 Satya Pal Juneja v. Chandra Shekhar Azad Junior High School which has been allowed by the impugned judgment and decree dated 21.1.2004 against which the petitioner has filed the instant writ petition.
Contentions of counsel for the petitioner
7. It has been contended by counsel for the petitioner that mere desire is not sufficient for landlord to get the accommodation released under Section 21(1)((a) of the Act unless the element of actual need exists. In support of this contention, he placed reliance upon the decisions in Krishna Behari and Anr v. District Judge, Meerut and Ors. 1985 (1) ARC 57; N.S. Dutta and Ors. v. The VIth Additional District Judge, Allahabad and Ors. 1984 (1) ARC 113; Ratan Marwari v. IIIrd Additional Sessions Judge, Moradabad and Ors. 1989 (2) ARC 371 and Deena Nath v. Pooran Mai 2001 SC & FBRC 397.
8. He submits that during pendency of the proceedings another accommodation vacated but demolished by landlord satisfies the need of the landlord in view of law laid down in Deena Nath v. Pooran Mai (supra) and Hussain Bano (Smt.) and Ors. v. Sri Har Covind Prasad Singhal and Ors. 2005 (2) ARC 493.
9. He vehemently urged that Section 21(8) of the Act is not an independent section and as such it is merely a Sub-section or proviso of the original section. Moreover, Section 21(8) of the Act does not lay down any pre-condition about recognition of the institution at the time of letting. Let out means at the time of filing of the release application. In support of this contention, he placed reliance on a decision in Co. M.K.K. Gulati and Ors. v. Shalini Memorial Society and School and Ors. 1999 (1) ARC 418. He urged that unless there is any ambiguity in the language used in the provision, it has to be read as such it would mean that language of the section speaks mind of Parliament and there is no need to look somewhere else to discover the meaning or intention as has been held in Lt. Col. Prithi Pal Singh Bedi v. Union of India and Ors. . Relying on various decisions of Hon'ble Apex Court, he urged that Court has no power either to give language or provide wider or narrow meaning of the intention of the legislature.
Since there is no dispute about this proposition of law, case laws are not being referred to.
Contentions of counsel for the respondent
10. Counsel for the respondent, in reply to the contention of counsel for the petitioners that the landlord has only expressed his intention to live in the disputed house as he is a resident of State of Orissa, submitted that there are 17 members in the family of the landlord, three sons are married and a divorced daughter. Vinay Juneja, one of the sons of the landlord is living with his wife Santosh and other family members at Kanpur and in addition the divorcee daughter is also living at Kanpur who are living on the first floor of the house, in dispute. Other two sons of the landlord want to shift to Kanpur and for this purpose also, he needs the entire ground floor accommodation for use and occupation. The tenanted accommodation comprises of 7 rooms, 2 kitchens, 2 stores, 2 bathrooms, 2 laterines and an 'Aagan' as well as a garage. The garage is a big one to park at least six vehicles. The entire property in occupation of the tenant is on meager monthly rent of Rs. 590 besides taxes. During the pendency of the present release application, another son Sri Naresh Juneja alongwith his family members has also shifted to Kanpur and is residing in the four rooms accommodation available with the landlord on the first floor of the building. In addition to the residential need, Sri Naresh also requires shop for his business.
11. In this behalf, he drew attention of the Court to the judgment and order dated 25.2.2003 passed in Rent Control Appeal No. 158 of 1998, appended as Annexure-C.A. 3 to the counter-affidavit, which has been affirmed by this Court vide judgment and order dated 14.12.2000 in Civil Misc. Writ No. 33722 of 2003 and in pursuance thereof, the landlord has received possession of the said shop.
12. He urged that the tenant-petitioner contested the release application primarily on the ground that the tenant was an educational institution since 1969 and it was imparting education to about 325 students. No further details either of the students who are getting education or any other document which would even remotely suggest 325 students getting education, were filed. Written statement of the tenant also did not disclose as to whether or not the educational institution is a recognized institution or not. The tenant initially claimed the benefit of Section 2(1)(b) and Section 21(8) of the Act but did not claim the benefit of its being recognized educational institution within the meaning of Section 3(q) of the Act. Now the tenant claims benefit of Section 21(8).
13. He submits that whereas the petitioner is an educational institution ever since its letting in the year 1969, it came to be recognized for the first time on 15.4.1995. He urged that except making bald averments that the petitioner was an education institution since 1969, it did not mention anything further in its written statement and in absence of any plea that the tenant was a recognized institution as defined in Section 3(q) of the Act, it cannot be allowed to raise objections as regards applicability of Section 21(8) of the Act. He urged that it is settled law that in absence of any specific plea in the written statement no evidence can be accepted for this purpose as has been held in Mrs. Om Prabha Jain v. Abnash Chand and Anr. .
14. On merits of the case, he submits that the plea cannot be sustained inasmuch as the recognition to the institution, in question came to be granted on 15.4.1995. Thus, the institution was not a recognized institution within the meaning of Section 3(q) of the Act on the date of letting in 1969. In support of this contention, he placed reliance upon a decision of this Court in Com. M.K.K. Gulati and Ors. v. Shalini Memorial Society and School and Ors. 1999 (1) ARC 418.
15. He vehemently urged that the need of the landlord is genuine and bona fide and immediately after the tenanted accommodation is released, the landlord with his family members will shift to the tenanted accommodation, so vacated.
CONCLUSIONS:
16. Having heard the arguments advanced by counsels for rival parties and after going through the records, it appears that there is force in the submission of counsel for the respondent that the tenant did not specifically plead before the courts below that it was a recognized educational institution within the meaning of Section 3(q) of the Act and only claimed benefit of Sections 21(1)(b) and 21(8) of the Act. Sections 3(q) and 21(8) of the Act are relevant for the purposes of this case, which are quoted below:
3(q) 'Recognized educational institutional means (any university established by law in India or) any institution recognized under the Intermediate Education Act, 1921 or the Uttar Pradesh Basic Education Act, 1972 or recognized or affiliated under the Uttar Pradesh State Universities Act, 1973.
21(8) Nothing in Clause (a) of Sub-section (1) shall apply to a building let out to the State Government or to a local authority or to a public sector corporation or to a recognized educational institution unless the prescribed authority is satisfied that the landlord is a person to whom Clause (ii) or Clause (iv) of the Explanation to Sub-section (1) is applicable:
Provided that in the case of such a building the District Magistrate may, on the application of the landlord, enhance the monthly rent payable therefor to a sum equivalent to one-twelfth of ten per cent of the market value of the building under tenancy, and the rent so enhanced shall be payable from the commencement of the month of tenancy following the date of application:
Provided further that a similar application for further enhancement may be made after the expiration of a period of five years from the date of the last order of enhancement.
The perusal of records shows that the petitioner-institution was recognized on 15.4.1995 whereas the building was let out to it in 1969.
17. In Jagdish Saran Gupta v. IInd Additional District Judge, Moradabad and Ors. 1993 (1) ARC 417 : 1992 AWC (Supp) 166, it has been held that the burden to prove that the building was exempted from the operation of the Act would lie on the person who seeks such exemption. In Mrs. Om Prabha Jain (supra), it has been held that in the absence of any specific plea in written statement no evidence can be accepted. From a perusal of written statement filed before the courts below, it is apparent that except the bald plea that it was an educational institution, the petitioner never mentioned that it was a recognized institution. In absence of such plea, the petitioner cannot be allowed to raise objection as regards applicability of Section 21(8) of the Act.
18. As it is abundantly clear from perusal of records that the petitioner's institution was recognized on 15.4.1995 and it was not a recognized institution on the date of filing of the release application, i.e. in 1969, it cannot get benefit of Sections 3(a) and 21(8) of the Act as has been held in Com. K.K. Gulati and Ors. (supra). It has been held that the bar contained under Section 21(8) of the Act shall not apply to an educational institution, which was recognised subsequent to the date of letting. Expressions 'let' and 'recognised educational institution' are to be read together and the only plausible interpretation which may be given to these two expressions is that with a view of claim protection of Section 21(8) of the Act, an educational institution must be a recognized institution on the date of letting.
19. The prescribed authority committed a material irregularity in accepting bald statement of the tenant that Sri Naresh Juneja was residing at Mussoorie. The appellate court framed the following issues for consideration:
1& D;k nkok /kkjk 21 ¼8½ o 2 ¼ch½] mÙkj izns'k vf/kfu;e la[;k 13 lu~ 1972 ls ckf/kr gS \ 2& D;k ;kph ds ikl ;kfpdk esa of.kZr ifjokj ds lnL;ksa dh la[;k gS vkSj muds jgus ds fy, iz'uxr ifjlj dh lnHkkoh vko';drk gS \ 3& D;k iz'uxr ifjlj esa foi{kh }kjk Ldwy pyk;k tk jgk gS vkSj mlds ikl Ldwy pykus ds fy, vU;= LFkku miyC/k gS \ 4& D;k ;kph vkSj mlds ifjokj ds ikl jgus ds fy, I;kZIr LFkku miyC/k gS vkSj mUgsa iz'uxr ifjlj dh vko';drk ugha gS \ 5& D;k foi{kh }kjk lq>k;s x;s cslesaV ds gky dks ;kph ds fy, mi;qDr gS ;k ;kph }kjk fn;k x;k lq>ko ds vuqlkj mls oSdfYid :i esa foi{kh dks Ldwy pykus gsrq fn;k tk ldrk gS \ 6& fdl Ik{k dh dfBukbZ T;knk gS \
20. After giving thoughtful consideration to issue Nos. 2 and 4 on the basis of evidence adduced by both the parties, the appellate court rightly reversed the aforesaid finding of the prescribed authority. It Is apparent from perusal of record that after the release application was moved, one son of the landlord, namely, Sri Naresh Juneja together with his family had shifted to Kanpur whereas on the date of filing of the release application, Sri Vinay, other son of the landlord was his family members and divorcee sister Smt. Shashi were living on the first floor of the disputed property. This clearly establishes the pressing need of the landlord. In this regard, reference may be had to the decision of this Court in Ram Kishan Khandelwal and Anr. v. R.S. Rathore and Ors. 1980 ALJ 1054, wherein it has been held that bona fide need may not be immediate and existing one and mere fact that the precise date by which the landlord intends to shift to the tenanted accommodation does not affect his need. Same view was reiterated in Abhay Singh and Ors. v. The District Judge, Dehradun and Ors. 1979 ARC 79.
21. The appellate court while deciding issue No. 3 found that there was no evidence as to how many students were getting education in the institution and that the tenant was using the accommodation, in dispute, as Barat Ghar. The appellate court also found that the tenant has alternate accommodation where the institution, in question, can be shifted. That apart, the appellate court has also found that the landlord has offered the basement measuring 36' x 40' to the tenant but the tenant has not accepted the same. In M/s. Bata India Limited and Ors. v. Vth A.D.J., Agra and Ors. 1999 (1) ARC 464 : 1999 (2) AWC 999 it has been held that where alternate accommodation, which has been offered to the tenant, is refused on the ground of suitability, the tenant cannot allege that the same is suitable for the landlord.
22. It is settled law that when tenant makes no effort to acquire alternate accommodation, his need for the accommodation, in dispute is mala fide and the issue of comparative hardship has to be decided against him. Reference in this regard may be had to be decision in Badrinarayan Chunilal Bhutada v. Govindram Ramgopal Mundada AIR 2003 SC 27.
23. Ever since filing of release application in the year 1997, no rent has been paid by the tenant except Rs. 9000, which was paid through money order. The property, in dispute, is situate on 200; wide road. The entire ground floor accommodation is being used for commercial purposes. The total area of the plot on which the disputed building has been constructed is 656 sq. yards out of which 125 sq. yards of land is on the ground floor covered by 9 shops, which is in possession of the other tenants. The market value of the land in question is not less than Rs. 20,000 per sq. yard and property worth Rs. 1.25 crores is in the possession of the tenant.
24. The appellate court has recorded a finding of fact that Sri Naresh Juneja alongwith his family members has shifted to Kanpur where Shri Vinay and Smt. Shashi were already living. It found that the landlord needs at least 12 more rooms to accommodate his big family whereas he is in possession of only four rooms at present.
25. There is no illegality, perversity or irregularity in the impugned order passed by the appellate court and petitioner has not been able to make out any case for interference in the writ jurisdiction.
26. For the reasons stated above, the writ petition fails and is dismissed. Tenant-petitioner will handover peaceful possession of the disputed accommodation to the respondent-landlord within a month from today and make payment of arrears of rent within two months from today. In case the disputed accommodation is not vacated and payment of arrears of rent is not made within the aforesaid stipulated period, the petitioner will be evicted by assistance of police and arrears of rent will be recovered as arrears of land revenue.
27. Hon'ble the Apex Court in Salem Advocate Bar Association, Tamil Nadu v. Union of India , has held that:
So far as awarding of costs at the time of judgment is concerned, awarding of costs must be treated generally as mandatory inasmuch as the liberal attitude of the Courts in directing the parties to bear their own costs had led the parties to file a number of frivolous cases in the Courts or to raise frivolous and unnecessary issues. Costs should invariably follow the event. Where a party succeeds ultimately on one issue or point but loses on number of other issues or points, which were unnecessarily raised. Costs must be appropriately apportioned. Special reasons must be assigned if costs are not being awarded. Costs should be assessed according to rule in force. If any of the parties has unreasonably protracted the proceedings, the Judge should consider exercising discretion to impose exemplary costs after taking into account the expense incurred for the purpose of attendance on the adjourned dates.
28. Thus, from the law laid down by the Hon'ble Apex Court in the aforesaid case of Salem Advocate Bar Association (supra), it is apparent that non-payment of cost is an exception for which special reasons have to be given by the Court and that in normal circumstances cost has to be awarded on the party according to the issue decided in favour of the party which were unnecessarily raised. The cost so imposed should be in accordance with rules and if the proceedings are unnecessarily protracted or adjournments have been sought it is upon the discretion of the Judge to impose exemplary cost taking also into account the circumstances etc. for the purpose of adjournment.
29. Following the ratio laid down in Salem Advocate Bar Association (supra), this Court in Civil Misc. Writ Petition No. 48752 of 2006 Nizamuddin v. Shakoor Ahmad after considering provisions of Rule 9 of Chapter XXII and Rule 11 of Chapter XXI of the High Court Rules, 1951 and provisions of Sections 34, 35A and 35B of the Code of Civil Procedure has held that while awarding interest on a party by non payment of principal amount or any dues should also be considered by the Court and not only interest but penal interest may also be awarded.
30. Since it is a frivolous petition, the cost is to be deterrent and exemplary. In the facts and circumstances of the case, it is directed that apart from payment of arrears of rent, the petitioner will also pay cost of Rs. 10,000 which shall be deposited by the petitioner before District Judge, Kanpur Nagar within two months from today. The arrears of rent as well as the cost so deposited can be withdrawn by the respondent-landlord without furnishing any security within two months from the date of deposit. In case the petitioner fails to make payment of the aforesaid amount, the same shall be recoverable as arrears of land revenue.