Heard learned counsel for the parties and perused the record.
This writ petition has been filed challenging the validity and correctness of the judgment and order dated 20.12.2010 passed by Additional District Judge, Court No. 10, Varanasi in Rent Appeal No. 10 of 1990: Pradeep Kumar Gupta & others vs. Smt. Kamla Devi, by which the appeal of the contesting respondents was allowed setting aside the judgment and decree dated 29.07.1987 passed by the Prescribed Authority/IIIrd Civil Judge, Varanasi in P.A. Case No. 88 of 1990 directing the petitioners to vacate the premises in question within the period of two months from the date of the judgment.
The brief facts of the case are that Suit No. 311 of 1983 for eviction of tenant Smt. Kamla Devi was filed in the court of Judge, Small Causes Court, Varanasi which was dismissed on 26.09.1986. The revision filed against the said judgment was also dismissed by judgment and order dated 21.07.1987.
It is submitted by the counsel for the petitioner that when the contesting respondents could not get possession over the shop in question they filed a joint application in the year 1985 for release under section 21 (1)(a) and 21(1)(b) before the Prescribed Authority for eviction of the petitioner from the shop in dispute situated in premises no. D-39/50-A which is alleged to have been purchased by them on 10.4.1982 on the ground that it was in dilapidated condition and required reconstruction after demolition. It is stated that ground of personal need was pleaded to deprive the petitioner from his right of re-entry and that till date the shop has not fallen down as such the ground that building is in such condition is belied. It is argued that it has been found as a matter of fact by the court that property in question was not in a dilapidated conditions and that the contesting respondents have no bonafide need for the shop in dispute.
It is further submitted by him that compliance of Rule 17 of the U.P. Urban Building (Regulation of Letting Rent and Eviction), Rules 1973 is mandatory and before passing order under Section 21 (1) (b), Prescribed Authority is to satisfy itself that the building requires demolition and that the landlord has sufficient financial means to construct the building in question according to the sanctioned building plan; but in the present case there has been no notice or report of Nagar Nigam, Varanasi in respect of the condition of the building. The application for appointment of commission for local inspection being paper no. 210-C under Rule 27 framed under the Rules moved at a very belated stage, was rejected by the court; that estimate of expenditure etc. was also not filed in the court though it is averred that amount of Rs.50,000/- towards expenditure has been managed by the landlord, and that even the plan for new construction as required under Rule 17 (3) was not filed.
It is then submitted by the counsel for the petitioner that the contesting respondents in support of their case had not filed any documentary evidence, whereas Smt. Kamla Devi, the tenant had specifically stated that landlord/respondents are running their business at Kolkata whereas the shop in dispute is situated in Varanasi on main road between Ramapura to Lauhrabeer. Reliance has been placed by the counsel for the petitioner upon paragraph 8 of the objection wherein it has been stated by Smt. Kamla Devi that the contesting landlord/respondents have purchased building no. D-39/2 and D-39/50. It is argued that in Kolkata also the respondents have business of Dal Mill and there are several buildings of the contesting respondents which fetch large amount of rent and details of those are given.
It is alleged that the contesting respondents have several other accommodations in Varanasi. Premises no. K-62/85, K-62/85-A, K-62/85-B, K-62/85-C, in mohalla -Saptsagar, Varranasi are owned by them. Two shops in premises no. K-62/85 are on road. Apart from these premises, House No. C-9/167, C-9/123-A, C-9/177 and C-9/308 Mohalla Habibpura, Varanasi also belongs to them. No affidavit in rebuttal has been filed which proves paper no. 53-C to 57-C. and the contesting respondents have not explained the position of these accommodations and use of these premises. Moreover, their plea that respondents do not have good relations between them is incorrect and is proved by the fact that they had moved joint applications under section 21 (1) (a) and 21 (1)(b).
It is lastly submitted inter alia that admittedly shop in question is under tenancy since 1971 i.e. before its purchase by the contesting respondents in 1982 framed under the Act as such whether Rule 16 (2)(a) will apply which has to be considered. According to the tenant Rule 16(2)(b) is not applicable as the petitioners have no other accommodation available with them in which they can run their business; that alleged need of the landlord is not bonafide and the application has been filed with an oblique motive only to evict the petitioners from the shop in dispute. It is argued that for release under section 21 (1)(a) mere desire is not enough as appears from para 9 of the affidavit (paper no. 46-c); therefore, bonafide need and comparative hardship are to be considered for passing a release order in favour of the landlord under section 21 (1)(a) of the Act. It is stated that petitioner no. 1/1/1 is a widow and she has liability to maintain her family in these hard days and comparative hardship being in favour of the petitioner, they cannot be deprived of their only source of income.
Reliance has also been placed upon 1979 ARC 73(Alld) by the counsel for the petitioner in support of his above contention.
For appreciation of the facts, family tree of Sri Jagdish Prasad is given below:-
Jagdish Prasad (Died on 6.2.86) Smt. Kamla Devi (Wife) (Died on 14.12.97) Rajesh Kumar (Son) Rakesh Kumar Om Prakash Pawan Kumar (Died) (Died 14.8.99) (Died 26.3.98) Smt. Rajni Devi Smt. Maya Sharma Anoop Sunil Priya Palavi Sharma Sharma Sharma Sharma Smt. Prema Goswami (Wife) Sonu Monu Rita Devi Nirmala Devi Per contra learned counsel for the respondents has submitted that in the present writ petition the petitioner Smt Maya Sharma and four others challenged the judgment and decree dated 20.12.2010 passed by learned Additional District Judge, Varanasi in Rent Appeal No. 10 of 1990 (Pradeep Kumar Gupta & others Vs. Smt. Kamla Devi) which is appended as Annexure no. 5 to the writ petition. The appellate court by the impugned judgment has set aside the judgment and decree dated 29.7.1987 passed by the Prescribed Authority/IIIrd Civil Judge, Varanasi in P.A. Case No. 88 of 1990 (Pradeep Kumar Gupta & others Vs. Smt. Kamla Devi) which is appended as Annexure no. 3 to the writ petition. It is stated that joint application filed by the landlords under section 21(1)(a) and 21(1)(b) of Uttar Pradesh Urban Buildings (Regulation of Letting Rent and Eviction) Act 1972 (U.P. Act No. 13 of 1972) is maintainable, as held by the division bench in the judgment rendered in 1997 JRJ (All) 230, Guru Parsad versus Ist Additional District Judge Kanpur which was finally finally allowed vide order dated 17.02.1999 reported in 1999 U.P.R.C.C. page 258; that prior to filling of the release application, the landlord had also sent a notice dated 23.04.1984. The notice was replied by her on 29.10.1984 admitting that the premises in dispute is being used as Godown by keeping goods meant for sale of her shop which is situated on the other side of the road and that the allegation of keeping the said shop locked is absolutely false.
According to the respondent this shows that the tenant is having another shop also which is situated on the other side of the road. The said notice as well as reply are the part of record of the P.A. Case No. 88 of 1985 from which it is established that the premises in dispute is not used as shop by the tenant, Smt. Kamla Devi.
It is further averred by the respondents that in fact late Rajesh Kumar, the husband of the present petitioner no. 1 has taken the possession over the premises in dispute wherein he has open his chamber for practising as an advocate. He has also contested proceedings under section 145 Cr.P.C. against Smt. Kamla Devi being case no. 46 of 1993 in the court of Pargana Magistrate (North) Varanasi. In those proceeding he stated that he is running his chamber in premises in dispute and his wife is running her own business for last three years only which also establishes the fact that there was no possession of Smt. Kamla Devi/tenant over the shop in question during her life time. A compromise is said to have taken place in the said proceeding on 07.12.1993. The court dropped the proceeding in aforesaid case no. 46 of 1993 on 20.12.1993; all these papers are on record of P.A. Case No. 88 of 1985 being paper no. 9-Ga/1 to 9-Ga-3 as well as on the record of the case; that the husband of the petitioner no. 1 had also filed an application dated 8.09.1992 for his impleadment as respondent no. 2 in Rent Appeal No. 10 of 1990 on 21.11.1992 supported by an affidavit dated 21.5.1994 wherein he has alleged that Smt. Kamla Devi, the tenant in premises in dispute, had allegedly obtained tenancy of the premises in dispute and that he is running his chamber in the shop in question, as such the premises in dispute were not being used by Smt. Kamla Devi, the tenant for any business of her own.
In the aforesaid circumstances, the landlord applicants/respondents no. 1 to 4, hereinafter referred as 'respondents' filed an application under section 21(1)(a) and 21(1)(b) of Uttar Pradesh Urban Buildings (Regulation of Letting Rent and Eviction) Act, 1972, before the Prescribed Authority/IIIrd Civil Judge, Varanasi which was registered as P.A. Case No. 88 of 1990, Pradeep Kumar Gupta & others Vs. Smt. Kamla Devi for release of the premises in dispute no. D-39/50A, Kodai Ki Chowki, Varanasi which was claimed under the tenancy on the rent of Rs.20/- per month for commercial purpose.
In the release application, Smt. Kamla Devi ( who is referred as tenant) was the only opposite party. The prayer to release the said building was made in the year 1985 under section 21 of the Act, but the tenant did not make any attempt to find out any alternate accommodation as per her own case.
Provisions of Rule 10 read with section 16(1)(a) and 34 (8)has been placed before the court by the respondent's counsel which for ready reference is quoted below:-
Rule 10. Allotment procedure:- Sections 16(1)(a) and 34(8):
(1) (a).................
(b).................
(c).................
(d)................
(e)...............
(2)....................
(3) A tenant against whom a suit for eviction filed with the permission of the District Magistrate under section 3 of the old act or an application under section 21 is pending may immediately apply for allotment of alternative accommodation and need not wait till the decision of that suit or application. Such application shall be without prejudice to the result of the said proceeding.
It is argued that the provisions related to consideration of the release of building sought under section 21 (1) (a) and 34 (8) of the 'Act' has been provided under rule 16 of the Act. The said rule is divided in two parts. Rule 16( 1) relates to the residential building while rule 16 (2) relates to the building used in business and as such rule 16 (2) is applicable to the present case. The relevant extract of the said rule is thus:-
Rule 16: Application for release on the ground of personal requirement (Section 21 (1) (a) & 34 (8).
(1) ..........
(2) While considering an application for release under clause (a) of sub section (1) of section 21 in respect of a building let out for purposes of any business, the prescribed authority shall also have regard to such facts as the following:-
(a) .........
(b) Where the tenant has available with him suitable accommodation to which he can shift his business without substantial loss there shall be greater justification for allowing the application.
(c)..........
(d)..........
(3) .................
It is stated that since alternative accommodation was available to the tenant of the premises in dispute being premises no. D-48/108, situated in front of the premises in dispute in the same locality in which the husband of her was doing the same business, therefore the release application of the applicants/respondents deserve to be allowed in view of the aforementioned provisions.
On the basis of aforesaid provisions it is argued that the provisions of rule 10(3) of U.P. Act No. 13 of 1972, framed thereunder are mandatory in nature for the tenant as held by the court in the matter of Krishna Deo Tomar Vs. IVth Addl. District Judge, Aligarh reported in 2006 (1) ARC page 422 and also in the matter of B.C. Bhutada Vs. G.R. Mundada reported in 2005 (2) ARC 899.
It is also submitted that in the said release application the respondents have not only pleaded their bonafide need but have specifically mentioned that construction of the premises in question originally was built about more than 7 decades earlier. The construction is in a dilapidated condition as the walls and the roofs of the building have been badly damaged on account of natural wear and tear. It is stated that the wooden beams used in the building for roofing with stone slabs have almost rotten and the entire building has now become incapable of occupation and uninhabitable except with the danger of life and property and that the premises in dispute requires de-nove construction after demolition in its entity for the sake of safety and security of the occupants as well as the neighbouring building and the public passing by on the road. An affidavit of the respondent no. 1 has also been filed in support of the said fact before the prescribed authority which is appended as Annexure no. 1 to the writ petition. It is also stated that the respondents have specifically averred therein that they have arranged the money for the demolition and reconstruction of the premises and further with proper estimate of expenditure which is estimated to be about Rs.50,000/-; that the plan of new construction after demolition of existing construction has also been prepared which is in conformity with the bye laws and regulation of the Nagar Mahapalika and Vikas Pradhikaran, Varanasi.
It is argued that apart from the facts mentioned in paragraphs 7 to 11 in release application, it has also been averred by the landlords that they will not let out the said premises again as they required the premises in question for their personal need; that they are adult persons and are still unmarried and having completed their academic career; that now they wanted to settle themselves in independent business; that they do not have any other commercial accommodation in the entire city of Varanasi except the premises no. D-39/2 in which the respondent no. 1 alone is doing his business under his sole proprietorship; and that the premises no. D-39/2, D-39/50 & D-39/50A constitute one compact unit which originally belongs to Shri Udai Ratan Banerji.
The respondents further urged that the 'tenant' i.e. the opposite party does not carry on any business for the last several years in the premises in question. Her husband namely Shri Jagdish Prasad (since deceased) was carrying on business of selling Surkhi, Chuna and other building materials on very large scale under the name and style of Milkhi Ram along with his two adult sons in premises no. D-48/108, Godaliya which is situated just in front of premises no. D-39/2 , in which about 20 trucks of materials can be stored at a time in the said accommodation; and that third son of tenant is an advocate practising in the District Court, Varanasi. It is stated that the premises in question is of no use to tenant while it is bonafide required to the respondents and that as the tenant is admittedly having another accommodation in premises no. D-48/108, Godoliya, Varanasi where her husband is doing his business, as such, there will be no hardship to the tenant by release of the accommodation.
It is argued by the counsel for the petitioner in rebuttal that the release application was filed on allegations that the tenant/Smt. Kamla Devi has another shop in premises no. D-48/108 Gadoliya, Varanasi, but this fact has been denied by her in her objection stating that shop no. D-48/108 Godolia cannot be said to be an another of her shop available to her as Sri Jagdish Prasad her husband is doing business in that shop.
After hearing the counsel for the parties and on perusal of record, it appears that joint application filed under section 21(1)(a) and 21(1)(b) of U.P. Act No. 13 of 1972 is maintainable as held by the Division Bench of this Court in the case of Guru Prasad vs. Ist Additional District Judge, Kanpur reported in 1997 JRJ (All.) 230. It is an admitted fact supported by record that prior to filing of release application, the applicants/respondents had sent notice dated 23.4.1984 to Smt. Kamla Devi which was replied by her on 29.10.1984 admitting the factum that the premises in dispute is being used by her as Godown by keeping goods meant for sale though her another shop is situated on the opposite side of the road. It is also apparent from record that husband of present petitioner no. 1 has opened his chamber in the said premises and that in proceeding under section 145 Cr.P.C. against Smt. Kamla Devi in Case No. 46 of 1993 before the court of Pargana Magistrate, (North) Varanasi, he has stated that he is running his chamber in premises in dispute and his wife is running her own business for last three years from which it is also clear that they have admitted that there was no possession over the shop in question of Smt. Kamla Devi. It is also stated that the premises in dispute is a commercial building situated in the market and used for business and that the prayer to release the said building was made in the year 1985 but the tenant did not made any effort to find out any alternative accommodation, as such legal course open to the tenant was not adopted by him.
The case of the respondents in the release application is that the original construction of the premises in dispute was weak and now is in a dilapidated condition. They have prepared proper estimate of expenditure over the proposed demolition and new construction and will not let out the said premises again as it is required for their personal need. The landlords do not have any other business accommodation except premises no. D-39/2 in which the tenant alone is doing his business as sole proprietor on monthly rent of Rs.20/- per month. The tenant has not denied the age of building which is mentioned in release application.
Rules can only be taken to carry out the purpose of the Act and cannot substitute the provisions of Act in so far it is repugnant to the object of the Act. The term "dilapidated condition" is to be used in wide terms and is not supposed to apply only in a situation where the building is about to fall or is falling down, the findings recorded by the Prescribed Authority/IIIrd Civil Judge, Varanasi in judgment dated 29.7.1987 in P.A. Case No. 88 of 1990, appears to be perverse and against admission and evidence which does not appear to have been properly appreciated.
Note of the fact that late Rakesh Sharma was an advocate. He was practising in district court, Varanasi and never did any business from the shop in dispute being given by the Nagar Mahapalika; that it is in dilapidated condition should be taken into consideration particularly when its age is not denied by the tenant and extensive repairs cannot be taken under the Act by the landlord or by the tenant himself with the permission of the landlord as rent of Rs.20/- per month was too inadequate even to carry out normal repairs which could not be done as the tenant was doing business therein. In these circumstances as such he was not associated in any manner with the so called alleged business of Smt. Kamla Devi-tenant of the premises in dispute. He was also not having any share in the said so called business with her mother, hence in this view of the matter, he was not having any authority of law to file the present writ petition against impugned judgment of the appellate court. The present petitioners are also not having any right to file the present petition against the impugned judgment as they are neither member of family of the tenant nor the dependent of the deceased Kamla Devi. In fact all the petitioners are the family members of late Rakesh Kumar Advocate who had practised in district court Varanasi. It is settled law that every member of the family of landlord is entitled to start a separate business and since the landlord is not having any alternative accommodation, hence the release application was rightly allowed.
In view of the aforesaid facts, it is born from records, the facts and circumstances of the case that landlords are having a bonafide need of the premises in question and will suffer great hardship than the tenants if the premises in dispute is not released as the petitioners-tenant also have an alternative accommodation.
There is no illegality or infirmity in the impugned order dated 20.12.2010 passed by the court below. The writ petition is, accordingly, dismissed. No order as to costs.
Dated: 09.02.2011 RCT/-