WPMS/2285/2021 of FIRM SHIO NARAYAN MAL RAM AVTAR Vs ASHOK KUMAR GARG on 31 December 2021

Arguments

HIGH COURT OF UTTARAKHAND AT NAINITAL

Writ Petition (M/S) No. 2285 of 2021

Firm Shio Narayan Mal Ram Avtar and others … Petitioners

Vs.

Ashok Kumar Garg and others … Respondents Advocates : Mr. Atul Kumar Bansal, Advocate, for the petitioners Dr. Kartikey Hari Gupta, Advocate, for the caveator Hon’ble Sharad Kumar Sharma, J.

This is a tenants’ writ petition, which has been preferred by them, by giving challenge to the judgement dated 21st October 2021, as rendered by the learned Appellate Court in the exercising of its powers under Section 22 of the U.P. Act No. 13 of 1972, by virtue of which, the Rent Control Appeal No. 23 of 2019, Firm Shio Narayan Mal Ram Avtar and others Vs. Ashok Kumar Garg and another was dismissed and as a consequence thereto it had affirmed the judgement dated 25th May 2019, which was passed in Rent Control Case No. 9 of 2016, Ashok Kumar Garg and another Vs. Firm Shio Narayan Mal Ram Avtar and others.

2. As a consequence of the concurrent judgement, rendered by the both the Courts below in a summary proceedings of Act No. 13 of 1972, under Section 21(1)(a) of the Act, the petitioners/tenants were directed to vacate the premises and handover the vacant and peaceful possession to the respondent landlord in order to meet his bonafide need of establishing himself in an independent business over the shop owned by him, which is under the tenancy of the petitioners.

3. When the writ petition was initially argued, the co-ordinate Bench of this Court vide order dated 29th October 2021, had issued rule nisi, which has been explained by the petitioners’ counsel, that it is an admission of the writ petition.

4. Later on, the learned counsel for the petitioner, in order to press the Stay Application, has argued the writ petition from the perspective that the property in question since it was a nazul land and the provisions of Act No. 13 of 1972, would not be applicable. The inference, which has been drawn thereto, by the learned counsel for the petitioner is on the ground that over the land in question, a lease has been executed in favour of the landlord under the provisions of the Government Grants Act, 1895, hence, the inference is drawn that it is a nazul land, this argument is not acceptable by this Court, for the reason being, that the leases, which are granted under the Government Grants Act are governed by the specific provisions contained under Section 4 of the Act, which will be exclusively regulated by the terms and conditions and tenure of lease itself, it which will be interse binding between the lessor and lessee of the lease thus executed and the tenant as such cannot drive any capital out of it because if at all there is a violation of any of the terms and conditions of the lease. It is the landlord, who has to be prosecuted by the State in accordance with the provisions governing the lease deed.

5. Secondly, the petitioner cannot take advantage of enjoying the tenancy after taking it from the respondent landlord and then take a defence that Act No. 13 of 1972 is not applicable and that too on a premise because the land in question is a nazul land in the light of the implications of the provisions contained under Section 114 of the Indian Evidence Act.

6 Thirdly, the argument extended by the learned counsel for the petitioners is that the place from where the landlord is conducting a business is admittedly from a tenanted shop, which according to the petitioner is conducive to the nature of business, which was proposed by the landlord while expressing his need in the release application and as per the opinion of the tenant, the tenement in question may not be a shop which is conducive according to the need, which has been expressed by the landlord in his release application.

7. I am of the view that as far as the tenant is concerned, he has got no right, whatsoever under law to advise a landlord or to suggest or draw any inference as to whether the need expressed by the respondent landlord, in relation to a shop of which he enjoys his ownership, is whether suitable to his business needs or not, because that determination lies exclusively within the domain of consideration by the landlord himself and the tenant cannot sit in an advisory capacity to suggest or argue that the shop sought to be released is not conducive to the proposed business to meet the need of the landlord.

8. The argument, which was extended by the learned counsel for the petitioners that it is a nazul land and hence Act No. 13 of 1972, would not lie, is not acceptable by this Court for the reason being, that the petitioners in the writ pleadings or in the documents which were filed before the Court below had attempted to substantiate the nature of land to be nazul merely on the basis of lease under the Government Grants Act.

9. There are two divergent laws regulating the field. The Government Grants Act is a centralised legislation, which confers a right of parting a state land by way of granting leases governed by its terms for the activities or the purposes for which the land are expressly provided under the lease and it will be governed by Section 4. In that eventuality, the leases granted under the Government Grants Act, cannot be treated as to be a nazul property because nazul happens to be altogether a different percept as it has been dealt with by the Allahabad High Court that it is a “jaijad munjabta” i.e. a land which has acquired by the crown as a consequence of an army aggression, when is the land which has been left vacant by the actual owner. The property thus it stood vests with the State, is termed as a nazul not otherwise. In that eventuality, this argument of the learned counsel for the petitioner is not accepted by this Court merely because there is a lease under the Government Grants Act is a nazul land.

10. The arguments of the learned counsel for the petitioners is that the Act No. 13 of 1972, would not apply, the petitioner himself would be barred from his own act because once he has enjoyed the tenancy then he cannot take a defence in the light of the provisions contained under Section 114 of the Indian Evidence Act. Apart from the fact that it is concurrent finding of fact which has been recorded by the Courts below, whereby it has been settled, that where the landlord has more bonafide need as compared to the tenant for the reason being that admittedly the landlord is presently conducting a business from a tenanted shop and merely because of the defence taken by the tenant, the landlord cannot be forced to perform his business from a tenanted shop though he has already has a shop under his ownership which was initially let out and which he wanted to be released.

11. Hence, for the aforesaid reasons and on account of concurrent findings, I do not find any merit in the Stay Application; the Stay Application is, accordingly, rejected.

12. After conclusion of the argument, the learned counsel for the petitioner has later on has voluntarily confined his relief, that the writ petition may be disposed of granting him liberty to vacate the premises within a period of one year from today. The prayer sought for is not seriously opposed by the respondents’ counsel, as such, it is accepted. The petitioners/tenants are directed to vacate the premises, subject to the following terms and conditions:-

(i) The petitioner would, within a period of two weeks from today, submit an undertaking by way of an affidavit before the learned Prescribed Authority, giving an undertaking to vacate the premises in question within a period of one year from today i.e. on 31st December 2022.

(ii) During the period of his occupancy for one year, he will ensure to remit the rent, payable against the tenement in question by 10th of each month to the respondent landlord.

(iii) Failure in payment of the rent by the time, as prescribed herein above will leave it for the respondent landlord to get the impugned judgement executed, as per the provisions of Act No. 13 of 1972.

(iv) During this period of occupancy of the shop as permitted, with the leave of the Court, the petitioner would neither change nor alter the nature of the property, in any manner, whatsoever.

(v) During this period of his occupancy, apart from remittance of the rent, he will also ensure to remit all the charges, which are covered by Section 7 of the U.P. Act No. 13 of 1972, including the charges payable towards the electricity, water and taxes, as payable to the local Bodies.

(vi) During this period of his occupancy, the petitioner undertakes that he will not create any sub-tenancy or handover the possession to anyone else except the landlord after the expiry of the aforesaid period.

13. Subject to the aforesaid conditions, the writ petition stands dismissed.

Mahinder/

(Sharad Kumar Sharma, J.) 31.12.2021