Arun Prakash and Others vs Prakash Azad

Poonam Srivastav, J.—Heard Sri Yogesh Agarwal, learned Counsel for the petitioner-tenants and Ms. Tulika Prakash Advocate for the respondent-landlord.

The judgment and orders impugned in the instant writ petition are dated 30.4.2007 passed by the Prescribed Authority/Additional District Judge (Senior Division), Court No. 13, Allahabad in P.A. Case No. 5 of 2004 and judgment and order dated 7.3.2008 passed by the Additional District Judge, Court No. 2, Allahabad in Rent Appeal No. 94 of 2007.

The dispute relates to an accommodation House No. 244/105, Tagore Town, Allahabad (hereinafter referred to as the disputed accommodation) which is an old construction consisting of courtyard, four rooms on ground floor, two store rooms, one kitchen, latrine and bathroom and a lawn measuring 94 ft. x 30 ft. The disputed accommodation was allotted to the petitioner''s mother in the year 1960 by Rent Control & Eviction Officer, Allahabad and rent fixed was Rs. 60/-. At the relevant time the landlord and owner was Sri H.S. Ghosh and after his death, his son Ravi Ghosh stepped in his shoes. Subsequently a family settlement between family members was arrived at and disputed accommodation came in the share of daughter of Sri H.S. Ghosh Smt. Pradeepta Pradhan. She sold the disputed accommodation on 30.10.1984 to Smt. Rama Lal by means of a registered sale deed. Subsequently Sri Prakash Azad respondent got an agreement to sell executed Benami in the name of Sri Sri Arun Chandra Dubey from Smt. Rama Lal and a registered power of attorney was also executed by her in favour of Sri Anand Ghildiyal. Subsequently a sale deed was executed on 19.7.2000 in favour of Sri Prakash Azad who became the sole landlord and owner.

The present landlord moved an application u/s 21(a)(b) of U.P. Act No. 13 of 1972 (hereinafter referred to as the Act) on two grounds; one that he bonafidely required the accommodation as he lives on rent and second that the building is very old and dilapidated. The landlord averred that he wants to get the disputed accommodation demolished and get a new construction. Plan for the proposed construction is pending with Allahabad Development Authority and he himself is living in a rented accommodation. A registered notice was also given prior to institution of the release application on 26.11.2002 terminating tenancy. The release application was objected by filing written statement on 10.8.2005 and ground taken by the tenants was that Sri Prakash Azad respondent had repeatedly made effort to oust the petitioners by using criminal force. The respondent is involved in business of construction of multi storied building and thereafter sell it at an exorbitant rate. The stand taken by the tenants was that the landlord did not require the disputed accommodation for his personal need. Subsequent to the written statement, learned Counsel contends that the stand taken in the release application was changed and confined to the personal requirement of the landlord and it is further submitted that the landlord had concealed material facts. Subsequently an amendment application was moved for amending written statement which was allowed. However, after exchange of pleadings, the stand taken by the tenants that the house in Katra where the petitioners are residing, belongs to Madhu Colonizer Pvt. Ltd. Co. of which the landlord is a Managing Director and the stand taken by the landlord that he is temporarily residing in the said house was absolutely false.

The Prescribed Authority vide judgment and order dated 30.4.2007 allowed the release application recording its conclusion that the respondent required the disputed accommodation for his personal residence and need is genuine and bonafide as well as the landlord will suffer greater hardship than the petitioners. It was also concluded by the Prescribed Authority that company is an independent entity under the Companies Act and, therefore, the property of the company cannot be legally said to be sole property of the Managing Director alone. In a previous litigation by means of Writ Petition No. 51056 of 2007 for a direction to the landlord to supply name and parentage of the so called friend who is alleged to have given flat for temporary residence to him, the landlord refused to divulge name and particular of the actual owner of the accommodation where the landlord was residing presently. The writ petition was disposed of with certain observations, which according to Sri Yogesh Agarwal was liable to be read against the landlord and an adverse inference should have been taken. The petitioner preferred an appeal before the District Judge which was dismissed and the court did not consider it a good reason to arrive at a conclusion and adopt an inference against the landlord for not disclosing the name of the actual owner.

Primary submission on behalf of the petitioners is that notice dated 26.11.2002 unequivocally mentions that the landlord desires to construct a multi storied building and make a monetary gain. It nowhere refers to the genuine need for residence and, therefore, the courts below erred in law in recording a finding in favour of the landlord that the accommodation in dispute is required bonafidely for personal use of the landlord. It has repeatedly been mentioned by learned Counsel for the petitioners that the landlord is a part of Bhu-mafia and a builder of multi storied buildings for the sake of business. Objection is that subsequently the landlord has changed its stance and took plea that the release application was one u/s 21(a)(b) of the Act, therefore, relying on decision of Nathnath v. Abdul Wahid AIR 1981 NOC 138, the submission is that the application u/s 21 of the Act is the foundation of the proceedings and is required to contain material and specific particulars. This case relates to Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act where principles incorporated in Order 6, Rule 2 C.P.C. is also applicable to the Rent Control Act but this is not the case in U.P. Act No. XIII of 1972. Sri Yogesh Agarwal has also placed reliance on a decision in the case of Abdul Samad Makhadum Baksh Sheikh and Ors. v. Sau Sudha Anant Parakhe AIR 1982 Bom 858 while canvassing that no party is entitled to give evidence beyond its pleadings.

The contention of the tenant is that the landlord has a number of alternative accommodations and particulars of the said accommodation was also given which was refuted by the landlord. The landlord stated that he is living as a licensee of his friend but he refused to disclose his name and that properties alleged to belong to the landlord are not his property. On these grounds, the findings of the subordinate courts have been criticized and also submitted that these findings have been arrived at by practicing fraud and suppressing vital evidence from the court. The counsel on behalf of the tenant though admits that he has not been able to lay his hands on the sale deed in the name of landlord but yet he has emphasized that he has been informed that the accommodation has been purchased by the landlord and, therefore, the findings on the question of bonafide need and comparative hardship has wrongly been recorded in favour of the landlord. Certain agreement to sell has been pointed out by the tenant''s counsel with verstile construction and thus it is an additional ground. The findings of the court below are challenged on the aforesaid factual aspects.

Learned Counsel has placed a number of decisions to substantiate his argument that in the event a party to the proceedings plays fraud on the court and suppresses material fact then he can reap no benefit and consequently emphasized that the two judgments impugned have also been extracted by practicing fraud and are liable to be set at naught. To demonstrate these assertions, reliance has been placed on a number of decisions; S.P. Chengalvaraya Naidu (dead) by L.Rs. Vs. Jagannath (dead) by L.Rs. and others, Hamza Haji Vs. State of Kerala and Another, Nanakram Vs. Kundalrai, Madras Bangalore Transport Co. (West) Vs. Inder Singh and Others, Subhra Mukherjee and Another Vs. Bharat Coking Coal Ltd. and Others, Delhi Development Authority Vs. Skiper Construction Company (P) Ltd. and another, Jai Narain Parasrampuria (Dead) and Others Vs. Pushpa Devi Saraf and Others, , Sanjay Kumar Gupta v. District Magistrate, Fatehpur and Ors. 2002 (5) AWC 3608 and Kesho Ram and Co. and Ors. v. Union of India and Ors. 1989 (2) ARC 181.

Objecting the aforesaid arguments, Ms. Tulika Prakash submits that in the present case the respondent-landlord moved a release application u/s 21(a)(b) of the Act for release of the disputed accommodation which was purchased by the landlord on 19.7.2000 by a registered sale deed. The petitioner-tenants were residing in the property in dispute since the past several years and paying a paltry sum of Rs. 75/- per month as rent. Since, the property is spread over an area of approximately 4300 sq. ft. with the lawn alone measuring 94 ft. x 34 ft, the tenants had no intention of vacating such a luxurious bungalow available to them for negligible rent. After due perusal of the release application, written statement and evidence led by both the parties, the trial court came to the conclusion that bonafide need and comparative hardship both tilted in favour of the respondent and hence the release application was allowed. On the date of filing of the release application, the respondent was residing in a rented accommodation paying Rs. 5,000/- as monthly rent. Later on he had to shift in a flat in Meera Vihar which was provided to him by a friend only as a licensee. The petitioners were in league with anti-social elements and they tried to adopt various measures to harass the respondent and implicate him and his friends in false criminal cases. The lower appellate court after hearing both the parties and after due consideration of the judgment and order passed by the court below affirmed the findings of the trial court and dismissed the appeal on 7.3.2008. It is argued that the courts below have dealt with the questions of separate legal entity of the company in great detail. So far as the issue of notice is concerned, the courts below have held that the notice was duly served upon the tenants for vacation of the property as the need of the landlord was genuine and pressing. It was also concurrently held by both the courts that just because the notice revealed intention of the landlord to construct the multi storied building, it does not mean he wants to use the accommodation for the commercial purposes. As is it there was a specific undertaking in the release application that once the accommodation is released in his favour, he will not let it out to any party but he will use it for his personal residence. So far the question of ownership of the flat where the respondent was residing during pendency of the suit No. 5 of 2004 is concerned, it is pertinent to mention here that the petitioners failed miserably to prove their allegations that the respondent was owner of the flat situated in Meera vihar, Allahabad. The courts below have held that the burden of proof and onus of proof are two different things. Since the tenant has alleged the existence of a fact then it was for them to prove the same. It is also argued that the petitioners for the first time in the writ petition annexed a purported agreement to sell dated 3.5.2006 allegedly entered into between M/s Verstile Construction and the landlord and his wife. The aforesaid agreement to sell was unregistered.

I have taken into consideration the arguments of the respective counsels for the parties and gone through judgment and orders and affidavits adduced in evidence. After deliberation and thorough investigation of the record, I am of the view that the judgment and orders of the courts below do not call for any interference. The law is well settled that the rights of the parties crystallize on the date of filing of the application and not thereafter. On the date when the release application was filed, the landlord was residing in a rented accommodation paying Rs. 5,000/- per month as a rent. In the case of Gaya Prasad Vs. Sh. Pradeep Srivastava, it was held that subsequent developments occurring pendente lite can be taken into consideration only when need of the landlord is completely eclipsed by subsequent events. The crucial date for deciding the bonafides of the requirement of the landlord is the date of filing of his application for eviction. In the case of Prativa Devi Vs. T.V. Krishnan, the Hon''ble Supreme Court has held that the landlord is the best judge of his residential requirement. He has complete freedom in the matter. It is no concern of the courts to dictate to the landlord how and in what the manner he should live or to prescribe for him a residential standard of their own. In Shiv Sarup Gupta Vs. Dr. Mahesh Chand Gupta, the Apex Court has held that convenience and safety of the landlord and his family members would be relevant factors while deciding the questions of baonafide needs. It has also been held that if the landlord wishes to live in a house of his own, the law does not command or compel him to squeeze himself totally into lessor premises protecting the tenant''s occupancy. Paragraph 22 of the said judgment is quoted below:

Reverting back to the case at hand, the landlord has been living on the ground floor of the Defence Colony house. It was conceded at the Bar that as on the day the family of the landlord consists of the landlord himself (a practicing doctor), his son (again a practicing doctor), the daughter-in-law and two grand children who are gradually growing in their age. Looking at the size of the family, availability of three bed rooms in the premises in which the landlord may live, is a requirement which is natural and consistent with the sense of decency-not to talk of comfort and convenience. There is nothing unreasonable in a family with two practicing doctors as members thereof needing a room or two or a room with a veranda to be used as a residential clinic divided into a consultation room and a waiting place for the patients. A drawing room, a kitchen, a living room and a garage are bare necessities for a comfortable living. The landlord has been living in Defence Colony locality for more than 35 years. The first floor which was let out to the tenant in the year 1978 as being an accommodation surplus with the landlord has with the lapse of time become a necessity for occupation by the landlord and his family members. More than ten years by now have been lost in litigation. The death of the wife of the landlord, and the death of the landlord''s mother-in-law, are events which have hardly any bearing on the case of felt need of the landlord. The need as pleaded and proved by the landlord is undoubtedly natural, sincere and honest and hence a bonafide need. There is no material available on record to doubt the genuineness of such need. It continues to subsist in spite of the two deaths. It is not the case of the tenant appellant that while seeking eviction of the tenant the landlord is moved by any ulterior motive or is guided by some other thing in his mind. It will be most unreasonable to suggest that the landlord may continue to live on the ground floor of the Defence Colony house and some members of the family may move to Sarvodaya Enclave House if the whole family cannot be conveniently and comfortably accommodated as one unit in the Defence Colony house. It would be equally unreasonable to suggest that the entire family must shift to Sarvodaya Enclave house which is admittedly situated at a distance of about 7-8 kilometers from Defence Colony. The landlord and his family are used to living in Defence Colony where they have developed friends and acquaintances, also familiarity with the neighbourhood and the environment. The patients usually visiting or likely to visit the residential clinic know where there doctor would be available. Shri Arun Jaitley. learned senior counsel for the respondent, has very rightly submitted that it could not have been the intendment of the Rent Control Law to compel the landlord in such facts and circumstances to shift to a different house and locality so as to permit the tenant to continue to live in the tenanted premises. If the landlord wishes to live with comfort in a house of his own, the law does not command or compel him to squeeze himself tightly into lesser premises protecting the tenant''s occupancy. In addition, we find that on the date of the initiation of the proceedings, Sarvodaya Enclave property was belonging to the wife of the landlord or to one of his sons resident abroad and was in actual occupation of a tenant. On the death of the wife of the landlord if any one of the two Wills (one which was in existence at the time of initiation of the proceedings or the one, which appears to have been subsequently executed by the landlords'' wife and filed before the High Court) was to be given effect to then the ownership in the property has passed on to one son or jointly to four sons of the landlord. If the Will itself is excluded from consideration as not proved then also the ownership in the property has passed on to the four sons jointly. Sarvodaya Enclave property does not belong to the landlord and is not available for his occupation as an owner. To these facts the applicability of law laid down in Prativa Devi Vs. T.V. Krishnan, is squarely attracted. In our opinion, the availability of Sarvodaya Enclave property is not of any relevance or germane to determining the need and the bonafides of the need of the landlord. We are not therefore inclined to attach any weight to the application for additional evidence filed by the landlord before the High Court though we agree with the learned Counsel for the tenant-appellant that the High Court was not justified in taking into consideration the contents of the Will without formally admitting the same in evidence and affording the parties opportunity of adducing evidence in proof and disproof thereof.

In the case of Rishi Kumar Govil v. Maqsoodan and Ors. 2007(2) ARC 1 the Apex Court has held that the bonafide personal need is a question of fact and should not be normally interfered with.

Similar view was expressed by the Apex Court in the case of Kailash Nandan Prasad v. ADJ, Muradabad and Ors. 1984 (2) ARC 1 wherein it was held that the tenant has no right nor any business to interfere with the mode or manner in which the landlord may choose to use his property or live therein.

It is also settled law that the High Court cannot act like an appellate court and re-appreciate or re-evaluate the evidence while exercising the jurisdiction under Article 226 of the Constitution of India. In fact the counsel for the petitioners has advanced long drawn arguments on the question that the landlord is residing in his own accommodation and, therefore, the tenant is entitled to retain possession for life long. This can never be the intention of the Act to handover tenanted accommodation of a landlord who deals in the business of construction and sale of property of his own house as gift package to the tenant. I am not in agreement that the agreement to sell on which a lot of emphasis has been laid, can be given much credence as it is an unregistered document and admittedly came in existence during pendency of the proceedings. Even if the submission of Shri Yogesh Agarwal, counsel for petitioners tenant is accepted that flat of Meera Vihar belongs to the landlord, I can not loose sight that accommodation sought to be released is a bungalow in a posh locality like Tagore Town. Thus the argument to this effect is farfetched and not worth consideration. The suggestion of the tenant that the flat where the landlord is residing is sufficient and therefore the disputed house cannot be released is in consequential.

After a thoughtful consideration of all the aspects, evidence and the principles laid down in various decisions, the claim of tenant petitioners cannot be allowed.

In view of the aforesaid findings and the fact that two judgment and orders are concluded by findings of fact, I am of the view that it does not call any interference whatsoever. The writ petition lacks merit and is accordingly dismissed.