Supreme Court of India
RAKESH KUMAR JOSHIversusNARENDRA KUMAR & ORS.
- Citation
- 2008 INSC 81
- Decided
- 22 January 2008
- Disposal
- Case Allowed
- Bench
- S B SINHA
Holding
The legal fiction of deemed vacancy under s.12(3) is limited to residential accommodation and does not apply to shop premises; consequently, the High Court’s reliance on s.12(3), s.16 and Rule 16(2) was erroneous.
Summary
The mother of the respondents, as landlord, filed an eviction petition under Section 21(1)(a) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, seeking to recover a shop on the ground of bona‑fide requirement for her grandson's business. The trial court dismissed the petition; the Rent Control Appellate Authority reversed that order, and the High Court upheld the appellate decision, relying on Sections 12(3) and 16 of the Act and Rule 16(2) of the Rules. The appellant‑tenants challenged the High Court’s decision before the Supreme Court, arguing that the legal fiction of "deemed vacancy" created by s.12(3) applies only to residential premises and not to shop premises. The Supreme Court held that the legal fiction indeed applies only to residential accommodation and that Rule 16(2) does not create such a fiction for commercial premises. Consequently, the High Court erred in invoking those provisions and its order was set aside, with the matter remitted to the High Court for fresh consideration.
Issues considered
- Whether the legal fiction of deemed vacancy under Section 12(3) of the U.P. Urban Buildings Act applies to shop premises in eviction proceedings.
- Whether Rule 16(2) of the U.P. Urban Buildings Rules creates a legal fiction applicable to commercial premises.
- Whether the High Court was justified in dismissing the writ petition on the basis of Sections 12(3), 16 and Rule 16(2) without considering the factual findings of the appellate authority.
Legislation cited
Subjects
evictionshop premiseslegal fictiondeemed vacancyU.P. Urban Buildings Actrent controlresidential vs commercialSection 12Section 16Rule 16bona fide requirement
Judgment
(2008] 1 S.C.R.1051
A RAKESH KUMAR JOSHI
v r•
NARENDRA KUMAR & ORS.
(Civil Appeal No. 579 of 2008)
JANUARY 22, 2008
B
(S.B. SINHA AND HARJIT SINGH BEDI, JJ.)
~·
Rent Control & Eviction:
U.P. Urban Buildings (Regulation of Letting, Rent and
..
c Eviction) Act, 1972; Ss. 12(3), 16 and 21(1)(a):
Eviction Petition - For eviction of a shop on ground of
bona fide requirement for establishing business for family
members - Dismissed by trial Court - Reversed by appellate
authority - Challenge to - Dismissed by High Court -
D
Correctness of - Held: Incorrect - In regard to vacancy; legal
fiction established in terms of s.12(3) applicable in relation to
..,
residential accommodation only - Although, r. 16(2) refers to
..
shop premises but by reason thereof no legal fiction has been
created - Under the circumstances, High Court erred in
E
invoking provisions of s.12(3) of the Act and r.16 of the Rules
while affirming order of the appellate authority - High Court
should have taken into consideration the factual aspect of the
,
matter and also findings of fact arrived at by the appellate
authority while dismissing the eviction petition - Matter
F remitted to High Court for consideration afresh - U.P. Urban
.....
Buildings (Regulation of Letting, Rent and Eviction) Rules,
1972 - r 16 (2).
Words and Phrases:
G 'Deemed vacancy of building' - Meaning of, in the context
of s. 12 of the U. P Urban Buildings (Regulation of Letting, Rent
)'
and Eviction) Rules, 1972.
Mother of respondents hal:I filed a petition for eviction
H 1051
RAKESH KUMAR JOSHI v. NARENDRA KUMAR 1052
& ORS.
of the suit premises, a 'shop' in terms of Section 21 (1 )(a) A
·-r of the U.P. Urban Buildings (Regulation of Letting, Rent
and Eviction) Act, 1972 against the appellant-tenants on
.the ground of bona fide requirement for establishing a
business for her grand son. Later, an application for
amendment was filed by the petitioner indicating further B
requirement of the suit premises for another family
member. The petition was dismissed by the trial Court.
__...
The order of the trial Court was reversed by the appellate
:> authority. Appellant-tenants challenged the decision of the
appellate authority by filing a writ petition, which was c
dismissed by the High Court. Hence the present appeal.
Appellant-tenant 4fOntended that the High Court had
failed to take into consideration that the provisions of the
Act, upon which reliance has been placed, relate to
residential premises and not to shop premises; and that, D
in any event, having regard to the fact that the appellate
:l
~· court did not meet the reasonings of the Rent Control
Authority, the High Court should ha1e interfered in the
matter.
Respondent submitted that although s. 12(3) and s. E
16 of the Act are not applicable in the instant case but in
view of r. 16(2) of the Rules, the decision of the appellate
court must be held to have been rendered on correct
premise.
F
Allowing the appeal, the Court
HELD: 1.1 By reason of sub-Section (3) of s. 12 of
the U.P. Urban Buildings (Regulation of Letting, Rent and
Eviction) Act, 1972, a legal fiction has been created. Such
a legal fiction in regard to the vacancy is to be applied in G
relation to residential accommodation only and not in
" ·'(_ relation to shop premises. Rule 16(2) of the U.P. Urban
Buildings (Regulation of Letting, Rent and Eviction) Rules,
1972 although refers to the shop premises, by reason
thereof no legal fiction has been created. The said Rule H
1053 SUPREME COURT REPORTS [2008] 1 S.C.R.
A merely provides for certain factors which are required to ,..,
be taken into consideration while considering an
application for release under Clause (a) of sub-Section
(1) of Section 21 of the Act. (Para - 9) [1059-0, E]
1.2 The High Court referred to Rule 16(2) of the Rules
B but the effect and purport thereof had not been taken into
consideration. The Rules have a limited application.
Applicability of the Rules would undoubtedly depend )..
upon the fact situation obtaining in each case. The court '-
is required to apply its mind upon the materials brought
c on record in determining the issues. (Para - 10)
[1059-F, G]
2. The High Court clearly erred in invoking the
provisions of ss. 12(3) and 16 of the Act. The Writ Petition,
therefore, could not have been dismissed on the premise.
D
thats. 12(3), s. 16 of the Act and r. 16 of the Rules would
~
.be applicable. The High Court should have taken into
consideration the factual aspect of the matter also,
•
particularly having regard to the findings of fact arrived
at by the appellate authority. Hence, the impugned
E judgment cannot be sustained and is set aside. The High
Court is directed to consider the matter afresh. (Paras -
10 & 11) [1059-F, G, H; 1060-A, B, C]
CIVILAPPELLATE JURISDICTION: Civil Appeal No. 579
F of 2008.
From the final Judgment and Order dated 30.11.2006 of
the High Court of Judicature at Allahabad in C.M.W.P. No. 27141/
2003.
Dinesh Kumar Garg, 8.S. Billowria, Abhishek Garg and
G
D.K. Gupta for the Appellant.
J.C. Gupta and Rajesh for the Respondents.
> ,
The Judgment of the Court was delivered by
H S.B. SINHA, J. 1. Leave granted.
RAKESH KUMAR JOSHI v. NARENDRA KUMAR 1054
& ORS. [S.B. SINHA, J.]
This appeal is directed against a judgment and order dated A
30.11.2006 passed by a learned Single Judge of the High Court
of Judicature at Allahabad in Civil Miscellaneous Writ Petition
No. 27141 of 2003 whereby and whereunder the writ petition
filed by the appellant herein challenging the correctness of the
judgment dated 8.5.2003 passed by the Additional District and B
Sessions Judge/Special Judge, Rent Control Appellate
Authority, Ghaziabad in R.C.A. No. 90 of 2000, was dismissed.
~
The Appellate Authority on 8.5.2003 by reason of its
aforementioned judgment had set aside an order dated
24.7.2000 passed by the 2nd Additional Civil Judge (Senior c
Division), Ghaziabad.
Relationship between the parties, admittedly, is that of a
landlord and tenant. Mother of the respondents herein filed an
application for eviction of the suit premises which is a 'shop' in
terms of Section 21 (1)(a) of the U.P. Urban Buildings (Regulation D
1- of Letting, Rent and Eviction) Act, 1972. The release application
• was filed on the ground of bona fide requirement for establishing
a business for her grand son, Shri Sheel Kumar. An application
for amendment was filed at a later stage of the said proceeding
in terms whereof, the requirement of the suit premises even for E
Sewak Ram was pleaded.
The said release application was dismissed by the learned
Trial Court, inter alia, opining :
~·~ "Sheel Kumar has been carrying on his business under F
the name and style 'Balaji Welding Store' at Ghantaghar, .
in front of Punjab National Bank, G.T. Road, Ghaziabad
and Sewak Ram is carrying on a business at Gandtii
Market, Modi Nagar, taken by him from Nagar Palika in
the name of his his wife Smt. Anita Garg."
G
In regard to the contention raised by the respondent herein
that the appellant had been carrying on three flourishing
businesses, it was opined;
"It is correct that opposite party is having a shop near
H
1055 SUPREME COURT REPORTS [2008] 1 S.C.R.
A Joshi Motors and Niti Niketan, however, in the shop in ~ ..
dispute applicant is carrying business of electronic items
and is also used as a store. Pertaining to property of
Joshi Palace affidavits have been filed that the property
belongs to his brother Dinesh Joshi."
B It was held:
"From the aforesaid analysis it is proved beyond doubt ~
'
that daughters of late Smt. Krishna Devi are also co-owner
of property in dispute. Besides this, Chetan Lal Garg and
c Bhagwat Prasad Garg have never given their consent for
the release of shop in favour of Sheel Kumar and Sewak
Ram Garg. From the facts it is also proved that Sheel
Kumar Garg is carrying on the business in Ghazabad under
the name of Balaji Welding Store, Ghaziabad and Sewak
Ram Garg is also having a shop in the name of his wife
D
Smt. Anita Garg in Gandhi Market Nagar Palika -t-
Ghaziabad." •
2. An appeal was preferred thereagainst by the
respondents. The Appellate Authority, however, reversed the
E said findings of the Rent Controller, inter alia, holding :
" .... The said rulings are not applicable as the opposite
party is having several commercial premises in his
possession which have been admitted by him. It has also
been admitted that in the shop in dispute he is using the
F >l .•
same as a store also. The appellant has established that
Narendra Kumar is out of employment and he is not doing
any service. The averments made by opposite party that
Narendra Kumar is carrying on business alongwith his
son at Ghaziabad in the name and style of Balaji Welding
G Store, has not been proved. The opposite party could have
summon the record of sales tax and income tax department
to prove that Narendra Kumar is a partner in the said
business. However, opposite party has failed to do so. In
-· /
these circumstances, it cannot be held that Narendra Kumar
H is also ·doing the business alongwith his son Sheel Kumar
RAKESH KUMAR JOSHI v. NARENDRA KUMAR 1056
& ORS. [S.B. SINHA, J]
. •··'-J at Ghaziabad. According to Hon'ble Supreme Court the A
landlord can carry the additional business also and for
that purpose he may require shop in dispute."
4. It furthermore relied upon Rule 16(3) of the U.P. Urban
Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972
to hold: 8
"In the present case it has been admitted that Rakesh
-'4
Kumar Joshi-tenant is having 2 other shops and he has
also not refuted two-storied building which was brought
on record by way of amendment made in the appeal. In c
these circumstances, the tenant is having sufficient
commercial accommodation to run his business. In para
7 of written statement opposite party has himself admitted
that he is also using the shop as store.
In these circumstances, the tenant does not require the D
-f· shop in dispute, while applicants in their family are having
... 4 brothers and their children. Though, it is admitted that
there is one more shop in their possession in which
applicant No. 4 is carrying on his business, there is one
more shop in the name of Sewak Ram's wife where the E
business is being carried. However, the same is not
sufficient for 4 brothers."
5. The High Court, however, by reason of the impugned
judgment relying upon the provisions of Section 12(3), Section
_,..>. 16, proviso 1 to 4 and explanation (i) of Section 21 of the held F
hold that the petitioner/tenant having acquired alternative
accommodations had no legal right to continue in the disputed
accommodation.
6. Mr. Dinesh Kumar Garg, the learned counsel appearing
G
on behalf of the appellant submitted that the High Court
\ committed a serious error in passing the impugned judgment
insofar as it failed to take into consideration that the provisions
of the Act, upon which reliance has been placed, relate to
residential premises and not shop premises. In any event, having
H
1057 SUPREME COURT REPORTS [2008] 1 S.C.R.
A regard to the fact that the appellate court did not meet the t-•
reasonings of the Rent Control Authority, the High Court should
have interfered in the matter.
7. Mr. J.C. Gupta, the learned senior counsel appearing
on behalf of the respondent, on the other hand, urged that
B although Section 12(3) and Section 16 of the Act are not
applicable in the instant case but in view of Rule 16(2) of the
Rules, the decision of the appellate court must be held to have ..
been rendered on correct premise.
c 8. We may, at the outset, notice the relevant statutory
provisions :
"Section 12. Deemed vacancy of building in certain cases.
- (1) A landlord or tenant of a building shall be deemed to
have ceased to occupy the building or a part thereof if -
D
(a) XXXlOOOOOOOOOOO
(b) XXXlOOOOOOOOOOO
I'-
..
(c) XXXlOOOOOOOOOOO
E (2) xxxxxxxxxxxxxxx
(3) In the case of a residential building, if the tenant or
any member of his family builds or otherwise acquires in
a vacant state or gets vacated a residential building in the
same city, municipality, notified area or town area in which
F the building under tenancy is situate, he shall be deemed
>l_ "-
to have ceased to occupy the building under his tenancy:
Provided that if the tenant or any member of his family had
built any such residential building before the date of
G commencement of this Act, then such tenant shall be
deemed to have ceased to occupy the building under his }'
tenancy upon the expiration of a period of one year from
the said date.
Explanation. - For the purposes of this sub-section -
H
RAKESH KUMAR JOSHI v. NARENDRA KUMAR 1058
& ORS. [S.B. SINHA, J.]
(a) a person shall be deemed to have otherwise A
•-f acquired a building, if he is occupying a public building
for residential purposes as a tenant, allottee or
licensee;
(b) the expression "any member of family", in relation to
a tenant, shall not include a person who has neither B
been normally residing with nor is wholly dependent
... on such tenant."
~ S~ction 16 of the Act provides for the powers of the District
Magistrate to pass order in regard to allotment and release a of c
vacant building.
Rule 16 of the U.P. Urban Buildings (Regulation of Letting,
Rent and Eviction) Rules, 1972 reads, thus:
"16. Application for release on the ground of personal
D
requirement. (1 )xxxxxxxx
,. 'f ........... x .................. x .........
~
(2) While considering an application for release under
clause (a) of sub-section (1) of Section 21 in respect of a
E
building let out for purposes of any business, the
prescribed authority shall also have regard to such facts
as the following -
(a) the greater the period since when the tenant opposite
party, or the original tenant whose heir the opposite party F
,,..> is, has been carrying on his business in that building, the
less the justification for allowing the application;
(b) where the tenant has available with him: suitable
accommodation to which he can shift his business without
substantial loss there shall be greater justification for G
allowing the application;
\
(c) the greater the existing business of the landlords own,
apart from the business proposed to be set up in the
leased premises, the less the justification for allowing the
H
1059 SUPREME COURT REPORTS [2008] 1 S.C.R.
A application, and even if an application is allowed in such
a case, the prescribed authority may on the application of ~·
the tenant impose the condition where the landlord has
available with him other accommodation (whether subject
to the Act or not) which is not suitable for his own proposed
B business but may serve the purpose of the tenant, that the
landlord shall let out that accommodation to the tenant on
a fair rent to be fixed by the prescribed authority ;
~
(d) where a son or unmarried or widowed or divorced or >
judicially separated daughter or daughter of a male lineal
c descendant of the landlord has, after the building was
originally let out, completed his or her technical education
and is not employed in Government service, and wants to
engage in self-employment, his or her need shall be given
due consideration."
D
9. By reason of sub-Section (3) of Section 12 of the Act, a
legal fiction has been created. Such a legal fiction in regard to ·t-
the vacancy is to be applied in relation to residential •
accommodation only and not in relation to shop premises. Rule
16(2) although refers to the shop premises, by reason thereof
E no legal fiction has been created. The said Rule merely provides
for certain factors which are required to be taken into
consideration while considering an application for release under
Clause 'a' of sub-Section (1) of Section 21 of the Act.
F 10. The High Court, therefore, clearly erred in invoking the
'( ....
provisions of Section 12(3) and 16 of the Act.
The High Court referred to Rule 16(2) of the Rules but the
effect and purport thereof had not been taken into consideration.
The Rules have a limited application. Applicability of the Rules
G would undoubtedly depend upon the fact situation obtaining in
each case. The court is required to apply its mind upon the
materials brought on reccrd in determining the issues.
The Writ Petition, therefore, in our opinion could not have
been dismissed on the premise that Section 12(3), Section 16
H
RAKESH KUMAR JOSHI v. NARENDRA KUMAR 1060
& ORS. [S.S. SINHA, J.]
..,.._ ·--i and Rule 16 of the Act would be applicable. The High Court A
should have taken into consideration the factual aspect of the
matter also, particularly having regard to the findings of fact
arrived at by the learned appellate authority. It would bear
repetition to state that the High Court could not have dismissed
the writ petition by referring to certain provisions of law B
particularly when the findings of the appellate authority required
.... a closer scrutiny.
'• 11. For the reasons aforementioned, the impugned
judgment cannot be sustained. It is set aside accordingly. This
appeal is allowed and the matter is directed to be considered c
afresh. We would, however, request the High Court to consider
. the desirability of disposing the appeal as expeditiously as
possible and preferably within a period of three months from
the date of receipt of the copy of this Order. In the facts and
circumstances of the case, there shall be no order as to costs. D
'i
S.K.S. Appeal allowed.
"
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