Ramesh Chandra vs Roman Catholic Diocese Agra Pvt. Ltd.

Sanjay Misra, J.—These are two connected writ petitions between the same parties.

Heard Sri K.K. Arora, learned Counsel for the petitioner tenant and Sri P.C. Jain, learned Counsel appearing, on behalf of the respondent landlord.

In writ petition No. 37097 of 2004, the petitioner has challenged the judgment and order dated 3051997 passed in P.A. No. 20 of 1990 by the Prescribed Authority Agra and the judgment and order dated 2882004 passed in Rent Control Appeal No. 201 of 1997. According to learned Counsel for the petitioner, the respondent landlord is a limited company having various properties in the city of Agra. The dispute relates to the property No. 14/193 known as Mulberry House situate in Mohalla Ghatia Azam Khan Agra. The petitioner is a tenant in the said premises on a monthly rent of Rs. 100. The .respondent landlord filed an application under Section 21 (1) (?) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 on the ground that it requires the premises for the purpose of establishing a home for poor, disabled and destitute members of the Society and to provide medical aid to them. The petitioner contested the release application and one of the grounds raised by the petitioner was that the respondent company has in its possession and ownership various other accommodations within the city of Agra and during the pendency of the present proceedings it had let out one such property known as Air Cottage to the Taj Press Club Agra and as such the need set up by the respondent company for the premises in question was neither genuine nor pressing in as much as if it required a premise for the said purpose, it could have satisfied its need by establishing the said home in the Air Cottage itself. The petitioner''s case was that he denied that the respondent landlord is a public charitable or religious institution and that the petitioner was carrying on his clinic in the said premises and if he is evicted there from he shall face immense hardship. The petitioner admitted that he has invested money in maintaining the building by making extensive renovations which were within the knowledge of the Arc Bishop. Learned Counsel for the petitioner contended that the application for release was made solely for the purpose of enhancing the rent.

The respondent landlord had taken the plea that the petitioner has retired from Government service and he does not require such a big and vast the premises which has an area of 3316 Sq. yard out of which constructed area is 1406 Sq. yards. It was also the case of the respondent that material alterations and substantial damage had been made and caused to the premises by the petitioner and further that the son of the petitioner has already acquired a residential accommodation at premises No. 1 HIG Block No. 4 Sanjay Place Agra and also acquired another premises having its No. F11/8 Prateek Centre Sanjai Place Agra.

The prescribed authority considered the need set up by the landlord on the basis of evidence led by the parties and found that the respondent being a private limited Company could maintain the application for release. It found that the respondent landlord was a Trust and it repelled the argument of the petitioner that the application was not maintainable at the instance of its administrator. The Board of Directors of the Company had passed a resolution dated 6101986 for establishment of a home for poor disabled and destitute members of the Society and for providing medical aid to them and not for any other person. The prescribed authority did not agree that the release application was filed with the motive of getting the premises vacated and then selling the same. The prescribed authority found the need of the respondent landlord to be bona fide and genuine. Since the petitioner''s son and daughterinlaw who are both Doctors by profession and had been living with the petitioner had acquired an alternative accommodation in the city, therefore, the petitioner who is a retired Government doctor could live with his wife alongwith his son. It, therefore, found that the petitioner would not suffer greater hardship if the premises in question was vacated by him. On the other hand it found that the respondent landlord would suffer more comparative hardship in as much as it would not be able to establish a home for poor disabled and destitute member of the society which was a laudable cause in furtherance of the objectives and for which the Board of Directors had already passed a resolution. Consequently the prescribed authority allowed the application of the respondent landlord and released the premises in question.

Feeling aggrieved the petitioner filed an appeal and the appellate Court has dismissed the appeal with costs. The appellate Court confirmed the findings of the prescribed authority and found that the petitioner had available to him residential accommodation where his son was living and he has not made any efforts to acquire another accommodation which was a fact heavily weighing against the tenant while comparing hardship between the parties. The appellate Court found that the respondent landlord had fully established his need for setting up a home for the poor, disabled and destitute members of the society to fulfill its charitable objects.

The Civil Misc. Writ Petition No. 37101 of 2004 has been filed by the petitioner challenging the judgment and order dated 2882004 passed in Appeal No. 231 of 1997 by the Additional District Judge Court No. 1. Agra. The petitioner contends that the respondent landlord had filed an application for release under Section 21 (2) of U.P. Act No. 13 of 1972 for eviction of the petitioner from the surplus appurtenant land to the building under his tenancy since it was required for constructing a building. The entire premises under the tenancy of the petitioner was 3316 Sq. yards and excess land was alleged to be 1768 Sq. yards. The petitioner contested the proceedings and alleged that there was no excess surplus land hence it could not has released in favour of the respondent landlord. The prescribed authority found that the need set up by the landlord for constructing a building was a mere wish or desire and since none of the requirements as contemplated under Rule 17 of the Rules framed under the Act had been complied with therefore, the same cannot be released in favour of the landlord. It also found that the landlord had not been able to establish on record that the land appurtenant to the building under tenancy was in any manner excess or surplus. It, therefore, rejected the application under Section 20 (2) of the Act. Feeling aggrieved the respondent landlord filed an appeal and the appellate Court has allowed the appeal by the impugned judgment and order.

The appellate Court has decided the appeal of the petitioner filed in proceedings under Section 21 (1) (a) of the Act as also the appeal of the respondent landlord filed in proceedings under Section 21 (2) of the Act by common judgment and order.

Learned Counsel for the petitioner has argued that the findings of the Courts below are erroneous for nonconsideration of the requirements of the provisions of Rule 16 of the rules. The petitioner was a tenant of th9 premises in question for a very long time and was carrying on his livelihood by opening a clinic there. He has argued that the respondent had in his possession alternative accommodations in the city itself and therefore, the need was not bona fide nor pressing. He has also contended that there was no surplus land with the tenanted building and therefore, the finding of the appellate Court was not in accordance with law in as much as in view of the explanation to Section 20 (2) excess area can be deemed to be surplus only if the appurtenant land exceeds double the covered area of the building. It has been submitted that in view of the explanation to Section 21 (1) of the Act both the conditions mentioned therein must be fulfilled i.e. a family member of the tenant had acquired an alternative accommodation who was residing with the tenant at the time of such acquisition and also that he was dependant upon the tenant.

Learned Counsel for the petitioner has placed reliance upon the decision of the Hon''ble Supreme Court in the case of Sudha Agarwal v. Xth Additional District Judge & Ore., 1999(2) JCLR 641 (SC) : 1999 (2) ARC 440 and contended that the requirement of the explanation to the IVth proviso of Section 21 (1) have to be first satisfied and if satisfied them no presumption can be raised with regard to the need of the landlord. The effect of the said explanation would be that the tenant is not entitled to contest the application, therefore, his contention is that even if the aforesaid two conditions were fulfilled, no presumption could be drawn by the Courts below in favour of the landlord that his need is bona fide. On the facts of the present case the findings recorded by the Courts below on the bona fide need of the respondent landlord are concurrent and the need has been found to be genuine and pressing. No presumption has been drawn by the Courts. The Courts below have found that the son of the petitioner was residing with him and after having obtained the qualification of a medical practitioner he has acquired the alternative accommodation at two places in the city. Admittedly the tenancy is since 1958 and the son of the petitioner was living with the tenant throughout his life time and was dependant upon him whereafter having obtained the qualification of a medical practitioner he has acquired the said two houses in the city. Therefore, the contention of learned Counsel for the petitioner that the Courts below have illegally drawn a presumption in favour of the landlord regarding his need is unfounded. The Courts below have found that the need of the landlord has been proved and established for setting up a home for poor, disabled and destitute members of the society which was found to be a laudable cause and the need could not be said to be a mere desire or wish.

Learned Counsel for the petitioner has placed reliance upon a decision of the Hon''ble Supreme Court in the case of M.M. Quasim v. Manohar LalSharma & Ors., (1981) 3 SCC 36 and contended that when need is set up by the landlord it must be shown that he is a landlord in the sense that he is owner of the building and has a right to occupy the same in his own right. He, therefore, contends that the respondent landlord which is a private limited company was not entitled to release of the accommodation because it was not for its own occupation and hence had no right to occupy the premises by opening a charitable home. The Courts below have concurrently recorded that the relationship of landlord and tenant between the respondent and the petitioner was specifically admitted by the petitioner himself and also that the petitioner had admitted paying rent throughout the period of tenancy to the respondent landlord. Having admitted the aforesaid relationship the petitioner could not raise a question of ownership in as much as in proceedings under Section 21 (1) (a) the release application is to be considered on the relationship of landlord and tenant. Relying on paragraph 17 of the judgment it has been stated that the landlord does not have an unfettered right to choose whatever premises he wants when he already has some vacant premises in his possession. The trial Court had issued interrogatories and the properties of the landlord in the city were disclosed. The Court considered the affidavits of the parties and found all the properties mentioned in Schedule A and Schedule B to be not vacant. The petitioner had filed affidavit paper No. 33Ga and he had not stated that the said properties were lying vacant or had been let out after the release application was filed. The affidavit has been filed as Annexure4 to the writ petition. Even in the written statement there is no such plea. The averment in the writ petition in paragraph 11 has been made for the first time before this Court and even that is not supported by any evidence. Therefore on the facts of the present case reliance placed by the petitioner on the decision of the Hon''ble Supreme Court is misplaced and the said decision does not apply to this case.

While relying upon a decision of the Full Bench of the Madras High Court in the case of Tangella Narasimhaswami v. Madini Vakataligam & Ors., AIR 1927 Madras 635, it has been contended on behalf of the petitioner that a trust is in effect gift of property or an interest in property to a person or institution by or through the intervention of a trustee and therefore, a juristic person being not a living person would not make the juristic person a living person for all purposes. Learned Counsel for the petitioner contends that since the respondent is private limited company, therefore, the need of a landlord as contemplated in Section 21 (1) of the Act cannot be said to be the need of the respondent who is a juristic person. In view of the finding recorded by the Courts below, the need of the respondent landlord for setting up a home for poor, disabled and destitute persons of the society has been found to be a laudable cause and not a mere wish or desire. The respondent was admittedly a landlord. It has not been proved by the petitioner that the aforesaid charitable purpose of the respondent landlord is to provide for discrimination in respect of its beneficiary on the ground of religion caste or place of work. In the absence of such a finding the bar as contemplated in clause (i) of the third proviso of Section 21 (1) cannot apply. The Act itself provides that where the landlord is a trustee of a public charitable trust it can maintain an application of release for the objects of the trust. Therefore, for the purposes of an application for release a juristic person such as the respondent can apply for eviction of a tenant under the Act.

Learned Counsel for the petitioner has placed reliance upon a decision of the Hon''ble Supreme Court in the case of Smt. Raj Rani Mehrotra v. IInd ADJ & Ors., reported in 1980 ARC 311 and contended that it is the duty of the Court to consider the question of part release even if no such plea has been raised by the tenant. It is, therefore, contended that by nonconsideration of the factor given in Rule 16 (1) (d) the Courts below have failed to take into account that the tenants need could be adequately met by leaving with him a part of the building under his tenancy and the landlord''s need could be served by releasing the other part. In the present case the need set up by the respondent landlord was for opening a home for poor disabled and destitute members of the society. Such a need cannot be said to be a requirement for personal occupation for the purpose of residence by the landlord or any member of his family. In the present case neither the landlord required the premises for its own residence nor for any member of the family of its Board, therefore, the question of part release as contemplated under Rule 16(1) (d) would not be applicable to the present set of facts and circumstances of the case. Even in Rule 16 (2) such a provision with respect to part release has not been provided. The power of the authority under Section 21 with respect to part release could be exercised only on equitable consideration with a view to do justice between the parties. The facts of the present case indicate that the tenant had alternative accommodation in the same city, therefore, even if it is assumed that the tenant was entitled for a consideration of pail release the said factor could have only been considered on equitable considerations by the authority while exercising its jurisdiction in deciding an application under Section 21 (1) of the Act. Such equitable consideration does not exist on the facts of this case. Reliance placed by the petitioner on the decision of the Hon''ble Supremo Court in the case of Ramesh Chandra v. Dwarika Prasad, (2002) (3) ARC 298, is, therefore, not of any help to him in view of the clear law laid down therein.

It has been recorded by the Courts below that although the landlord applied for release of the premises as far back as in 1986, the tenant has not made any efforts to search for an alternative accommodation nor he has shown that he had made efforts in that behalf but no alternative accommodation was available. The said factor was a valid consideration while assessing the likely hardship between the parties.

The concurrent findings recorded by the Courts below on the application under Section 21 (1) (a) of the Act cannot be said to be erroneous or illegal in any manner whatsoever. The application under Section 21(1)(a) of the Act filed by the respondent landlord for release of the accommodation in question having been allowed, the application of the landlord under Section 20 (2) of the Act looses its significance in as much as the eviction of the petitioner tenant from the entire accommodation has been ordered by the Courts below. Therefore, the release of a part of surplus land appurtenant to the building is of no avail either to the petitioner or to the respondent landlord. The judgment of the appellate Court whereby it has dismissed the appeal No. 201 of 1997 filed by the petitioner and allowed the appeal No. 231 of 1997 tiled by the respondent landlord is in accordance with law.

For the reasons stated above, both these writ petitions lack merit and are accordingly dismissed.

Sri K. K. Arora, learned Counsel for the petitioner submits that since the petitioner has been occupying the premises in question since more than 45 years and he and his wife are about 80 years old, therefore, it would be very difficult for them in case they are required to vacate the premises in question immediately as such some reasonable time may be granted to them so that they may arrange another accommodation. Sri P.C. Jain, learned Counsel for the respondents contends that in view of the advanced age of the petitioner Court may grant some reasonable time only upon filing an undertaking before the prescribed authority to such effect. In view of the aforesaid submission, this Court is of the view that reasonable time may be granted to the petitioner to vacate the premises in question in case the petitioner files his own undertaking within one month from today before the prescribed authority in the following terms:

(i) he shall hand over vacant peaceful possession of the property in question on or before 30th June, 2007.

(ii) he shall deposit entire arrears of rent if any before the prescribed authority within 15 days of his filing of aforesaid undertaking.

(iii) he shall deposit monthly rent as and when it falls due before the prescribed authority till the date he vacates and hand over the peaceful possession to the respondent landlord.

In case the aforesaid undertaking is filed within the aforesaid time, the petitioner will be entitled to remain in occupation of the premises in question upto 30th June, 2007 or to any date earlier when he hands over vacant peaceful possession to the landlord. In case of any default in filing of the aforesaid undertaking within the aforesaid period or in defaulting any of the conditions mentioned above, landlord would be entitled to initiate proceedings for eviction of the petitioner in accordance with law.

No order is passed as to costs.