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SMT. BISMILLAH versus DR. KAILASH NATH TANDON

High Court of Judicature at Allahabad

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Smt. Bismillah v. Dr. Kailash Nath Tandon - WRIT - A No. 7460 of 2003 [2006] RD-AH 17409 (9 October 2006)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Reserved

Civil Misc. Writ Petition No.7460 of 2003

Smt. Bismillah (deceased) Mohammad   Khan

Vs.

Dr.Kailash Nath Tandon

Hon. Sanjay Misra, J.

The petitioner is a tenant of the premises situate at Chamanganj, Sipri Bazar, Jhansi inherited by him from his predecessor-in- interest since the past five decades. The landlords had filed a suit No.772 of 1975 for ejectment of the tenants which was dismissed by the judgment dated 15.2.1984 and the appeal no. 96 of 1984 was dismissed on 9.9.1985. Another suit no. 299 of 1986 was filed by the landlords for ejectment of the tenants and during pendency of the suit they transferred the premises in favour of the respondent on 30.10.1987. The respondents impleadment application was rejected and ultimately the suit  itself was dismissed on 2.1.1991.  The respondent then  filed an application under section 21(1)(a) of U.P. Urban Buildings ( Regulation of Letting, Rent and Eviction) Act, 1972 ( U.P. Act No. XIII of 1972) on 19.8.1991 for release  of the premises. The  tenant contested  the application  on the claim  of release of the premises.  The tenant contested  the application on the claim  of release for the alleged need as well as defect of  not having been given six months notice as required under law. The Prescribed Authority allowed the application of the landlord by the judgment and order dated 6.3.1977. The appellate court has dismissed the appeal filed by the tenant on 21.1.2003. Both the courts have recorded a concurrent finding of fact on the bonafide need  of the landlord  and have held comparative hardship in his favour. The said  judgment  and orders  are impugned  in the present writ petition.

Learned counsel for the petitioner has argued  that on the admitted facts the provisions of section 29-A were applicable  and the

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petitioner was protected  from eviction as the provisions of section 21 were not applicable. He submits that the remedy for the landlord was either under section 20 of the Act or under  the General Law.

Learned counsel for the  respondent landlord has submitted that the relationship of landlord and tenant is admitted between the parties and that the tenant had made a construction over the land in the premises under his tenancy.  He submits that the aforesaid  facts are borne out from the record of the earlier suits filed  by the erstwhile  owners and landlords. His contention is that the release application was maintainable  and that there is no such bar to  its maintainability  under section 29-A.

Learned counsel for  the petitioner has placed reliance on a decision of this court in the case of Ishwar Singh Vs. Up Ziladhikari and another reported in 2005(58) ALR 177. In this case the land was let out and the tenant had  raised  construction. The landlord moved an application for enhancement  of rent under section 29-A(5) of the Act. The tenant took the plea that since the constructions were raised  in the year 1974 the period of ten years had not expired and therefore by virtue  of the exemption under section 2(2) of the Act the U.P. Act No.XIII of 1972 did not apply. This court while considering  the provisions of section 29-A (5)  held that  it would not be applicable  for the purpose of the exception  under section 2(2). For the purpose of exemption of a building for a period of ten years from the date on which its construction is completed  the said provision would not apply to constructions raised by  the tenant with the landlords consent. It was  held in paragraph 11 as quoted herein under:-

" Section 2(2) of the Act refers only to building and not to the tenancy of land given for constructions to be raised by the tenant. In case section 2(2) of the Act was to include land covered under section 29-A of the Act the word land would have been mentioned alongwith building. The Legislature was

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clear that the exception provided in section 2(2) of the Act was only in respect of building and not in respect of letting of land."

The above case related to proceedings for enhancement  of rent under section 29-A(5) and the argument of the tenant claiming exemption of the building under section 2(2) was repelled by this court.  The present case relates sub sections (2) and (3) of section 29-A where the argument is that the landlord could bring a suit only under  section 20 of the Act or a suit  under the general law for eviction of a tenant falling in the category of tenants under sub clause (2).

Section 29-A has been engrafted in Chapter V of the  Act. This chapter contains section 25 to 30. It deals with Regulation of other Rights and Obligations of landlord and tenant. Section 25 prohibits sub letting, section 26 deals with the landlords obligation with respect to amenities enjoyed by  the tenant and sub section (3) thereof restrains the tenant from demolishing any improvements effected by him or remove  any material used in such improvements, Section 27 entitles the tenant to get  the landlords obligations enforced with respect to amenities. Section 28,28A and 28B deal with repairs, alterations water connection, sanitary fittings etc. And the rights and obligations of the tenant and landlord. Section 29 gives a special protection to tenants of building destroyed due to reasons mentioned therein. Section 30 entitles the tenant to deposit  rent in court under certain circumstances. It is under this Chapter  relating to Regulation of Rights and Obligations that section 29-A has been inserted by U.P.Act No.28 of 1976. It provides for protection against eviction to certain classes of tenants of land on which building exists. The expressions ''tenant' and ''landlord' have the same meaning assigned  t them under section 3(a) and (f) where ''building' would be read as ''land'. The class of tenants sought to be protected  by this section are

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those to whom only land is let out and with the landlords consent  the tenant has created any permanent  structure and incurred expenses thereon.  It is only this class of tenants who are within the ambit of the various sub sections of section 29-A. Sub sections (4) and (5) make the tenant liable to pay rent either as mutually agreed  between  the parties and in the  absence of an agreement the District Magistrate on an application of either of the parties has been given the power to determine the annual rent payable. It further provides that such rent determined  by the District Magistrate shall be payable from the date of expiration of the term for which the land was let out or w.e.f. the commencement of the section, which ever is later. Therefore, till the term for which such land was let out the rent is payable as mutually agreed, however, in the absence of any agreement, the rent determined by the District Magistrate becomes payable from the date of enforcement of the section and if the term expires later then from the later date. A protection has been provided in sub section (6) to the tenant against a decree of eviction or a suit for eviction pending on the date of enforcement of the section. It limits the grounds of eviction to only those as available in section 20(2). Such grounds being as quoted here under:-

20(2). A suit for the eviction of a tenant from a building after the determination of his tenancy may be instituted on one or more of the following grounds, namely;

(a) that the tenant is in arrears of rent for not less than four months, and has failed to pay the same to the landlord within one month from the date of service upon him of a notice of demand:

Provided that in relation to a tenant who is a member of the armed forces of  the Union and in whose favour the prescribed authority under the Indian soldiers ( Litigation) Act, 1925 (Act IV of 1925) has issued a certificate that he is serving under special conditions within the meaning of section 3 of that Act or where he has died by enemy action while so serving, then in relation to his heirs, the words "four

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months" in this clause  shall be deemed to have been substituted by the words "one year".

(b) that the tenant has willfully cause or permitted to be caused substantial damage to the building;

(c) that the tenant has without the permission in writing of the landlord made or permitted to be made any such construction or structural alteration in the building as is likely to diminish its value or utility or to disfigure it;

(d) that the tenant ( has without the consent in writing of the landlord used it for a purpose other than the purpose for which he was admitted to the tenancy of the building or otherwise done any act which is inconsistent with use), or has been convicted under any law for the time being in force of an offence of using the building or allowing  it to be used for illegal or immoral purposes;

(e) that the tenant has sub-let, in contravention of the provisions of Section 25, or as the case may be, of the old Act the whole or any part of the building;

(f) that the tenant has renounced has character as such or denied the title of  the landlord, and that latter has not waived his right of re-entry or condoned the conduct of the tenant;

(g) that the tenant was allowed to occupy the building as part of his contract of employment under the landlord, and his employment has ceased.

The tenant can under section 20 get relieved from eviction only with respect to ground (a) by unconditionally paying the entire amount of rent and damages  for use and occupation of the building at the first date of hearing of the suit.  In sub section (6) of section 29-A he can relieve himself from eviction if he pays within three months of the commencement of the section the enhanced rent as mentioned therein. Therefore, with respect to the other grounds of eviction under section 20(2) even this particular class of tenant  can be sued by the landlord. From the aforesaid provisions it is quite apparent that in so far as the payment of rent or enhanced rent for relieving himself from a pending suit for eviction the protection as given under section 20(4) is available to the tenant under sub section (6) of section 29-A as provided therein. However, it is applicable to pending suits at the

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commencement of the section. Therefore, sub section (3) of section 29-A when  it makes the provisions of section 20 applicable to this class of tenants, it impases restrictions on his eviction except on the specified grounds. The bar of a suit for eviction with respect to tenants of buildings is therefore equally applicable to this class of tenants.

From the aforesaid provisions it is quite clear that section 29-A brings land let out, where the tenant with the landlords consent has erected any permanent structure and incurred expenses in execution thereof, within the ambit of the Act. That being so it cannot be held that an application for release under section 21 is not maintainable against this class of tenant or the land and structure thereupon. This court is of the view that an application under section 29-A deals with suits of eviction filed on grounds  available under other laws pending at the commencement of section 29-A. For the aforesaid reasons the contention of learned counsel for the petitioner cannot be accepted.

The courts below have recorded concurrent findings on the bonafide need and comparative hardship in favour of the landlord. Having perused the impugned judgments no error can be found in the findings of fact recorded therein.  The need of the landlord's son for establishing a clinic and hospital after shaving obtained a decree of MBBS cannot be said to be not bonafide.  The fact that during the pendency of these proceedings he has opened a clinic in a tenanted premises cannot give any credence to the tenants plea that the need has now been fulfilled and bonafide need for the premises in question has extinguished.

The impugned judgments are therefore in accordance with laws and require no interference by this court in exercise of its jurisdiction under Article 226 of the Constitution of India.

The writ petition has no merits and is dismissed. No order is passed as to costs.

October 9,2006

Gc.


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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