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Rajendra Kumar & Others v/s Raj Kumar


Company & Directors' Information:- RAJ CORPORATION LIMITED [Active] CIN = U74900UP2008PLC035742

Company & Directors' Information:- RAJ COMPANY PRIVATE LIMITED [Active] CIN = U74999PB1949PTC000515

Company & Directors' Information:- G RAJ & COMPANY PVT LTD [Active] CIN = U67120WB1993PTC058140

Company & Directors' Information:- R M RAJ AND CO PRIVATE LIMITED [Strike Off] CIN = U99999DL1952PTC002146

Company & Directors' Information:- RAJENDRA LIMITED [Strike Off] CIN = U99999KA1943PLC000306

Company & Directors' Information:- RAJ & RAJ PVT. LTD. [Active] CIN = U51109WB1991PTC052055

Company & Directors' Information:- RAJENDRA KUMAR AND COMPANY PRIVATE LIMITED [Strike Off] CIN = U74920RJ1996PTC011712

Company & Directors' Information:- RAJENDRA CORPORATION PRIVATE LIMITED [Strike Off] CIN = U17219TZ1948PTC000161

Company & Directors' Information:- D RAJENDRA AND COMPANY LIMITED [Not available for efiling] CIN = U99999MH1943PTC003917

    Writ - A No. 18711 of 2019

    Decided On, 26 May 2020

    At, High Court of Judicature at Allahabad

    By, THE HONOURABLE MR. JUSTICE SARAL SRIVASTAVA

    For the Petitioner: Manish Kumar Nigam, Advocate. For the Respondent: Arpit Agarwal, Advocate.



Judgment Text


1. Heard learned Sri Manish Kumar Nigam, counsel for the petitioner and Sri Arpit Agrawal, Counsel for the respondent.

2. Petitioners by means of present writ petition have challenged the judgement and order dated 31.1.2017 passed by Civil Judge (Senior Division)/Prescribed Authority, Pilibhit allowing the P.A. Case No. 18 of 2014 (Raj Kumar Vs. Yashwant Singh and another) and the judgement and order dated 24.9.2019 passed by Third Additional District & Sessions Judge, Pilibhit dismissing the P.A. Appeal No. 5 of 2017 (Yashwant Singh (deceased) and others Vs. Raj Kumar) filed by the petitioners against the order dated 31.1.2017.

3. Facts, in brief, are that the respondent-landlord (hereinafter referred as 'respondent') filed a release application under Section 21 (1) (a) of Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred as 'U.P.Act No. 13 of 1972' ) for release of a shop (hereinafter referred as 'disputed shop') situated in Mohalla Khushimal opposite Chhipiyan Masjid, Station Road, Pilibhit against petitioners-tenant (hereinafter referred as 'petitioners'). The need set up by the respondent was that the disputed shop is required for setting up a mobile phone shop and its accessories for the respondent and his son. It is further averred that the respondent has taken a shop on rent at Rs.1260/- per month for doing business opposite the disputed shop in the market of Jaiveer Singh Parmar. It is further averred that the release of the disputed shop would satisfy the need of the respondent and his son.

4. The release application was contested by the petitioners by filing written statement denying the fact that the disputed shop is bonafide required by the respondent for establishing the business for himself and his son. Besides above several other pleas were taken by the petitioners in their objection against the release application.

5. The Trial Court framed as many as three issues. Issue No. 1 was in respect to the relationship between the respondent and the petitioners as landlord and tenant. The issue No. 2 was in respect of bonafide need of the respondent, and Issue No. 3 was in respect of comparative hardship.

6. The Trial Court by placing reliance upon paragraph No. 7 of the written statement admitting the tenancy of the disputed shop held that there was a relationship of landlord and tenant between the petitioners and the respondent. The trial court after appreciating elaborately the evidence on record found that the respondent has established that he is doing business in a rented shop and his son is unemployed, therefore, the need of the respondent is bonafide and genuine and comparative hardship lay in his favour . Consequently, it allowed the release application.

7. The order of the Trial Court dated 31.1.2017 was assailed by the petitioners in appeal. The Appellate Court found no illegality in the order of the Prescribed Authority in allowing the release application. Consequently, it dismissed the appeal.

8. Challenging the aforesaid order, the only submission urged by the counsel for the petitioners is that the case of the respondent in the release application was that the disputed shop is bonafide required by the respondent for establishing the business for himself and his son after reconstruction, therefore, the authority below should have considered the financial capacity of the respondent to reconstruct the disputed shop. Thus, he submits that in the absence of any satisfaction recorded by the authorities below that the respondent has the financial capacity to reconstruct the shop, the authorities below have committed a manifest error of law in allowing the release application. In support of his submission, he has placed reliance upon the judgement of Apex Court in the case of K.N. Anantharaja Gupta Vs. D.V. Usha Vijaykumar (smt), 2007 (13) SCC 592.

9. Per contra, learned counsel for the respondent submits that the issue whether the respondent has the financial capacity to reconstruct the disputed shop is a question of fact, determination of which requires necessary pleading and cogent evidence to prove the said fact. Thus, he submits that in the absence of any pleading in the written statement challenging the financial capacity of the respondent to reconstruct the shop, the said issue cannot be raised for the first time before this court in the writ petition. He further contends that averment in the release application should be read as a whole and not in isolation to ascertain on what ground release of the shop has been sought, and in the instant case, from the reading of release application as a whole, it is crystal clear that the release of the disputed shop has been sought on the ground of the bonafide need of the respondent and not that the business shall be established after the demolition and reconstruction of the shop.

10. He further contends that in a release application filed under Section 21 (1) (a) of the U.P. Act No. 13 of 1972, the landlord has to establish that his need for release is bonafide and comparative hardship lay in his favour. Thus, he urges that if the landlord established these two essential ingredients of Section 21 (1) (a) of U.P. Act No. 13 of 1972, the release application deserves to be allowed. He submits that the Court below after appreciating the shreds of evidence on record held that the need of the respondent is genuine and bonafide, and comparative hardship also lay in favour of respondent, accordingly it allowed the release application. He has placed reliance upon the judgement of this Court in the case of Shree Krishan Garg Vs. Rajendra Singh and other, 2003 (51) ALR 209.

11. I have heard the rival submission of learned counsel for the parties and perused the record.

12. The question which arises in the present case is whether, in a proceeding under Section 21 (1) (a) of U.P. Act No. 13 of 1972, the authorities below are under obligation to consider about the financial capacity of the landlord to reconstruct the disputed shop after demolition.

13. Before adverting to the aforesaid question, it would be relevant to reproduce paragraph No. 2 of the release application which has been relied upon by the counsel for the petitioners in support of his submission. Paragraph No. 2 of the release application reads as under:

“LANGUAGE”

14. Counsel for the petitioners has emphasized the word “LANGUAGE” (new construction) in paragraph No. 2 of the release application to contend that use of the word “LANGUAGE” shows that the release of the disputed shop has been sought on the ground that the disputed shop is bonfiedly required after demolition and new construction for use and occupation of the respondent, otherwise there was no reason for use of the word “LANGUAGE” in paragraph no. 2 of the release application. Thus, his submission is that the authorities below needed to record its satisfaction about the financial capacity of the landlord to reconstruct the disputed shop after demolition in allowing the release application. Accordingly, he submits that this issue can be raised before this court in the writ petition as it goes to the root of the matter and is a question of law. He has placer reliance upon paragraph Nos. 10 and 11 of the judgement of the Apex Court in the case of K.N. Anantharaja Gupta (supra) which is extracted herein below:-

"10. That apart, there is another aspect of this matter. As noted hereinabove, the eviction of the tenant was sought under Section 27(2)(r) of the Act by alleging that the suit premises was required by the respondent and her children for their own use and occupation after demolition and reconstruction of the building already existing. In order to satisfy this condition, as enumerated in Section 27(2)(r) of the Act, it is essential that the court should also find that the premises let needs to be demolished and that the same would be reconstructed after demolition. It is only after this that the question of user of the same after reconstruction would be taken into consideration.

11. From the order of the High Court passed in revision, it would be evident that the only ground on which the order of the Chief Judge, Small Causes Court, Bangalore was reversed was that the respondent needed the suit premises to demolish the same and to take up new construction and obtain plans from the authority. In our view, before granting a decree for eviction on the ground of demolition and reconstruction and then for use of the same for occupation, the court must be satisfied that: -

(i) the suit premises is so dilapidated that it needs demolition;

(ii) the landlord has the capacity to reconstruct the suit premises after demolition;

(iii) the sanctioned plan has to be taken from the authority concerned."

15. To test the argument of counsel for the petitioners, it would be useful to refer Section 21 (1)(a) and (b) of the U.P. Act No. 13 of 1972 which reads as under:

"21. Proceeding for release of building under occupation of tenant. - (1) The prescribed authority may, on an application of the landlord in that behalf, order the eviction of a tenant from the building under tenancy or any specified part thereof if it is satisfied that any of the following grounds exists namely-

(a) that the building is bona fide required either in its existing form or after demolition and new construction by the landlord for occupation by himself or any member of his family, or any person for whose benefit it is held by him, either for residential purposes or for purposes of any profession, trade or calling, or where the landlord is the trustee of a public charitable trust, for the objects of the trust :

(b) that the building is in a dilapidated condition and is required for purposes of demolition and new construction....."

16. Under Section 21 (1) (a) of the U.P. Act No. 13 of 1972, a landlord can file a release application for release of a building where a building is bonafide required either (i) in existing form or (ii) after demolition and new construction by the landlord for occupation.

17. According to the counsel for the petitioners, reading of paragraph no.2 of the release application unambiguously suggest the intention of the landlord to use the disputed shop after demolition and reconstruction, therefore, the landlord needs to establish that he has sufficient means to reconstruct the disputed shop after demolition to succeed in the release of the disputed shop. Accordingly, he submits that the authorities below were under obligation to record its satisfaction about the financial capacity of the landlord to reconstruct the disputed shop before allowing the release application.

18. At this point, it is pertinent to have a glance at Section 21(b) of the U.P. Act No. 13 of 1972 which provides that the landlord can file release application under Section 21(b) if the building is in dilapidated condition and is required for demolition and new construction. The building can be released under Section 21(b) if the conditions stipulated in Rule 17 of The Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction), Rules 1972 (hereinafter referred to as 'Rules, 1972') are satisfied. Rule 17 of Rule 1972 reads as under:

"17. Application for release on the ground far demolition and new construction [Sections 21 (1) (b) and 34 (8).-- Before allowing an application for release of a building under Section 21 (1) (b) on the ground that it is required for purposes of demolition and new construction, the prescribed authority shall satisfy Itself :-

(i) that the building requires demolition ;

(ii) that a proper estimate of expenditure over the proposed demolition and new construction has been prepared ;

(iii) that a plan has been duly prepared and conforms to the bye-laws or regulations of the local authority or other statutory authority under any law in that behalf for the time being in force; and

(iv) that the landlord has the financial capacity for the proposed demolition and new construction."

19. The state government has framed Rules 1972 in the exercise of power under Section 41 of U.P. Act No. 13 of 1972 to carry out the purpose of the U.P. Act No. 13 of 1972 . Rule 17 of Rule, 1972 has been framed with reference to Section 21(b) of U.P. Act No. 13 of 1972. One of the conditions beside other conditions stipulated in Rule 17 of Rules 1972 which the landlord should satisfy in order to succeed under Section 21 (b) is that he has the financial capacity for the proposed demolition and reconstruction. If the landlord failed to satisfy the condition stipulated in Rule 17(iv) of the Rules 1972, his application would fail. However, it would be pertinent to notice that the legislature has not framed any rule like Rule 17 with reference to Section 21 (a) of U.P. Act No. 13 of 1972 laying down the condition which the landlord has to satisfy to succeed in a proceeding initiated by him under Section 21 (1) (a) of U.P. Act No. 13 of 1972. Thus, it is evident that the landlord is not required to establish his financial capacity to reconstruct the building if the release is sought on the ground that the building is bonafide required after demolition and new construction for use and occupation of the landlord. The landlord in a proceeding under Section 21(a) of the U.P. Act No. 13 of 1972 has to establish that his need is bonafide and genuine, and that comparative hardship lay in his favour, once he satisfies these conditions, release application deserved to be allowed even if the release of the building is sought on the ground that building is bonafide required for use and occupation after demolition and reconstruction.

20. However, if the tenant disputes the financial capacity of the landlord to reconstruct the building, the tenant has to plead in the written statement challenging the financial capacity of the landlord and prove it by leading cogent evidence, and in case of any such plea having been raised by tenant, the Prescribed Authority may incidentally examine the question of financial capacity of the landlord to carry out the demolition and new construction. It would be worth to refer to the judgment of this Court in the case of Shree Krishan Garg (supra). Paragraph Nos. 54, 55 and 56 reads as under:-

"54. It is true that under clause (a) of Sub-section (1) of Section 21 of the Act also, the landlord may seek release on the ground that the building in question is bona fide required "after demolition and new construction". However, in such a case, in my opinion, Rule 17 of the Rules framed under the Act cannot be invoked. In other words, where the landlord files release application under Section 21(1)(a) on the ground that the building in question is bona fide required "after demolition and new construction", he will not be required to establish that the requirements of Rule 17 of the Rules framed under the Act are fulfilled.

55. However, if in such a case, i.e., where the landlord files release application under Section 21(1) (a) on the ground that the building in question is bona fide required "after demolition and new construction", the tenant disputes the bona fide requirement of the landlord on the ground that the landlord lacks the financial capacity to carry out "demolition and new construction", then the Prescribed Authority, in deciding the question of bona fide need, may incidentally examine the question of financial capacity of the landlord to carry out "demolition and new construction".

56. Coming to the present case, it has not been shown that the tenant / petitioner raised any dispute / issue regarding financial capacity of the landlord to make alterations and additions in the disputed shop. Therefore, it was not necessary for the authorities below to consider the question of financial capacity of the landlord while deciding the question of bona fide requirement. "

21. In the case in hand, counsel for the petitioners has not been able to place any averment in the written statement challenging the financial capacity of the respondent to reconstruct the shop nor he could place any material on record to support his contention that the respondent lacks the financial capacity to reconstruct the disputed shop.

22. Further, the intention of the respondent on which ground the release of the disputed shop has been sought cannot be gathered from one word "?????????" in paragraph No. 2 of the release application, rather the release application has to be read as a whole to find out the ground on which release application has been filed. In the present case, reading of release application as a whole does not suggest that the release application has been filed by the respondent on the ground that the disputed shop is bonafide required for use and occupation after demolition and new construction.

23. If the petitioner had doubts about the financial capacity of the respondent to reconstruct the disputed shop, he should have challenged it by raising necessary pleading in the written statement and prove the same by filing cogent evidence. That would also give an opportunity to the respondent to negate the apprehension of the petitioner.

24. The matter can also be looked into from another point of view. In the instant case, respondent has laid emphasis on the word "?????????" in paragraph No. 2 to challenge the financial capacity of the petitioner to reconstruct the shop. There is no averment in the release application that the shop is required after demolition and new construction by the respondent for occupation. Possibly the word "?????????" has been used in the release application in the context that modification or renovation of the disputed shop is needed without demolition to give it a nice look to attract the customers. If the respondent had raised necessary pleading in the written statement in this regard, that would have enabled the petitioner to explain the circumstances and reason for use of word "?????????" in the release appl

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ication and to prove his financial capacity to carry out modification or renovation in the disputed shop. In this view of the matter, the court is of the opinion that the issue of financial capacity to reconstruct the shop is an issue of fact, determination of which requires necessary pleading and evidence to prove the same, and thus, cannot be raised for the first time in the writ petition. 25. The judgement of the Apex Court in K.N. Anantharaja Gupta (supra) relied upon by counsel for the petitioners is of no help to the petitioners for two reasons; in the case of K.N. Anantharaja Gupta, the building was sought to be released on the ground that the building was bonafide needed for use and occupation after demolition and construction whereas in the case in hand, no such case has been set up by the respondent in the release application that disputed shop is bonafide required for use and occupation after demolition and new construction. Secondly, the Apex Court was considering a dispute which arose out of a proceeding of Karnataka Rent Act and not under U.P.Act No. 13 of 1972 where the release of building sought under Section 21(b) of the Act,1972 requires the landlord to satisfy the conditions enumerated in Rule 17 of Rules 1972, but not in a case where the release is sought under Section 21(a) of the Act,1972 on the ground of bonafide need. Thus, the judgment of the Apex Court in the case of K.N. Anantharaja Gupta had been rendered in a different factual context and not applicable in the facts of the present case. 26. Thus, this court is of the view that as the petitioners have not challenged the financial capacity of the respondent before the authorities below, the same cannot be allowed to be raised for the first time in the writ petition. 27. For the reasons given above, this Court does not find any illegality in the orders impugned in this writ petition. The writ petition lacks merit and is accordingly, dismissed with no order as to the cost. Interim order stands vacated.
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