# Sri Anil Kumar Sharma v. Lalta Prasad Jain

- **Citation:** (2020) 6 ILRA 797
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-06-02
- **Case number:** WRIT A No. 673 of 2016
- **Bench:** Saral Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sri-anil-kumar-sharma-v-lalta-prasad-jain-45797
- **Pages:** 7

## Headnote

798 INDIAN LAW REPORTS ALLAHABAD SERIES
A. Civil Law - UP Urban Building
(Regulation
of
Letting,
Rent
and
Eviction) Act, 1972 - Section 21 (1) -
Third proviso - Release of residential
building
for
Commercial
purpose
-
Prohibition - A reading of Clause (ii) to the
Third Proviso to Section 21(1) makes it
amply clear that it is mandatory and puts an
embargo upon the court to entertain an
application under clause (a) where the
release of a residential building is sought for
commercial purpose - Residential building
cannot
be
released
for
commercial
purposes. (Para 22 and 26)
Writ Petition allowed (E-1)
Cases relied on :-

## Text

6 All. Sri Anil Kumar Sharma Vs. Lalta Prasad Jain 797

34. Reference may be had to the
judgment in R (on the application of
Quintavalle) Vs. Secretary of State for
Health7, for the proposition that in construing
an enactment effort should be made to give
effect to the purpose of the enactment. The
observations made by Lord Bingham in the
aforesaid judgment are as follows:-

''8. The basic task of the Court is to
ascertain and give effect to the true meaning
of what Parliament has said in the enactment
to be construed. ... Every statute other than a
pure consolidating statute is, after all, enacted
to make some change, or address some
problem, or remove some blemish, or effect
some improvement in the national life. The
Court's task, within the permissible bounds of
interpretation, is to give effect to Parliament's
purpose. So the controversial provisions
should be read in the context of the statute as a
whole, and the statute as a whole should be
read in the historical context of the situation
which led to its enactment.''

35. Similar observations were made by
Lewison LJ in Pollen Estate Trustee
Company Ltd. Vs. Revenue and Customs
Commissioners8. It was stated thus :-

''24. The modern approach to
statutory construction is to have regard to the
purpose of a particular provision and interpret
its language, so far as possible, in a way
which best gives effect to that purpose..."

36. In the instant case, in addition to
there being no material to show that any
intimation was sent by the Committee of
Management or Principal of the Institution to
the DIOS with regard to occurrence of the
vacancy, the other reason which has been
assigned by the DIOS while declining to grant
approval is that the relevant papers seeking
approval had been received after almost five
years from the date of the alleged selection.
This casts a further doubt on the selection
process undertaken by the management of the
Institution.

37. For the aforementioned reasons, we
do not find any reason to interfere with the
judgment of the learned Single Judge in terms
of which the writ petition has been dismissed.

38. That apart and in any event, in an
Intra-Court Special Appeal, no interference is
usually warranted unless palpable infirmities
or perversities are noticed on a plain reading
of the impugned judgment and order. In the
facts and circumstances of the instant case, as
stated hereinbefore, on a plain reading of the
impugned judgment and order, we do not
notice any such palpable infirmity or
perversity. For reasons stated above, we are
not inclined to interfere with the impugned
judgment and order dated 29.11.2019.

39. The Special Appeal is liable to be
dismissed and stands, accordingly, dismissed.
----------

(2020)06ILR A797
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.06.2020

BEFORE
THE HON'BLE SARAL SRIVASTAVA, J.

WRIT A No. 673 of 2016

Sri Anil Kumar Sharma ...Petitioner
Versus
Lalta Prasad Jain ...Respondent

Counsel for the Petitioner:
Sri Ranjit Saxena, Sri A.K. Asthana

Counsel for the Respondent:
Sri Rajesh Tripathi, Sri Hari Nath Tripathi,
Sri A.K.Upadhyay
798 INDIAN LAW REPORTS ALLAHABAD SERIES
A. Civil Law - UP Urban Building
(Regulation
of
Letting,
Rent
and
Eviction) Act, 1972 - Section 21 (1) -
Third proviso - Release of residential
building
for
Commercial
purpose
-
Prohibition - A reading of Clause (ii) to the
Third Proviso to Section 21(1) makes it
amply clear that it is mandatory and puts an
embargo upon the court to entertain an
application under clause (a) where the
release of a residential building is sought for
commercial purpose - Residential building
cannot
be
released
for
commercial
purposes. (Para 22 and 26)
Writ Petition allowed (E-1)
Cases relied on :-
1. Dr Piyush Kumar Chaturvedi Vs Spl. Judge
(SC/ST Act) Lucknow & ors. (2005) 2 AWC
1784
2. Rajesh Kumar Gupta Vs Deepak Tandon &
anr. (2016) 8 ADJ 652
3. Kush Sahgal & ors.Vs M.C. Mitter & ors.
(2000) 4 SCC 526
4. Shanti Devi & ors.Vs Swami Asthanand &
ors. (2003) 2 SCC 26
5. Harrington House School Vs S.M. Ispahani
& ors. (2002) 5 SCC 229
(Delivered by Hon'ble Saral Srivastava, J.)

1. Heard Sri Ranjit Saxena, learned
Senior Counsel for the petitioner and Sri
H.N. Tripathi, learned counsel for the
respondent.

2. The petitioner-tenant (hereinafter
referred as 'Petitioner') through present
petition has assailed the judgement and
order
dated
05.12.2015
passed
by
Additional District Judge, Court No.8,
Firozabad in P.A. Appeal No.20 of 2009
(Lalta Prasad Jain Vs. Smt. Narvada
Devi) whereby the appellate court has
allowed
the
release
application
of
respondent-landlord (hereinafter referred
as 'Respondent') under Section 21 (1)(a)
of
the
U.P.
Act
No.13
of
1972
(hereinafter referred to as 'Act, 1972').

3. The respondent preferred release
application under Section 21 (1) (a) & (b)
of the Act, 1972 against the petitioner on
the ground that petitioner is a tenant of
the first floor of the building situated at
Sadar
Bazar
Main
Road,
Tundla
(hereinafter referred to as 'disputed
property') as described in the release
application @ Rs.100/- per month and the
house tax. It was further stated that
disputed property is an old building and is
in a dilapidated condition, and as such, it
is
required
for
demolition
and
reconstruction.

4. The personal need set up by the
respondent in the release application was
that the son and grandson of the
respondent are running their business on
the disputed property at the ground floor
and require the disputed property for its
use and occupation.

5. The aforesaid application was
contested by the petitioner by filing
written statement contending inter-alia
that disputed property is not in a
dilapidated
condition.
The
disputed
property is in good condition and does not
require demolition and reconstruction.
The petitioner also denied the fact that the
need of the respondent is bonafide and
genuine.

6. The Prescribed Authority based
on pleadings on record, framed several
issues. On the issue whether the disputed
property is in a dilapidated condition, the
Prescribed
Authority
found
that
respondent has failed to establish that the
disputed
property
is
in
dilapidated
condition. On the issue of bonafide need,
6 All. Sri Anil Kumar Sharma Vs. Lalta Prasad Jain 799
it held that the release application has
been filed in the year 2004 and it is
evident from the averments in the
affidavit of the respondent that son of the
landlord has established business in the
same premises in the year 2005 and
grandson in September 2005, therefore,
the need of the respondent is satisfied.
The Prescribed Authority returned the
finding on the issue of comparative
hardship
against
the
respondent.
Consequently, the Prescribed Authority
rejected the release application by order
dated 27.03.2009.

7. The respondent feeling aggrieved
by the order dated 27.03.2009 preferred
P.A. Appeal No.20 of 2009. The
Appellate
Authority
rejected
the
application under Section 21(1) (b) of the
Act, 1972 on the ground that though the
respondent has established that disputed
property is in a dilapidated condition but
has failed to satisfy the compliance of
Rule 17 of the U.P. Urban Buildings
(Regulation
of
Letting,
Rent
and
Eviction), Rules, 1972.

8.
The
appellate
court
while
considering
release
application
under
Section 21(1) of the Act,1972 placed
reliance on the judgment of this court in the
case of Dr Piyush Kumar Chaturvedi Vs.
Special Judge (SC/ST Act) Lucknow and
Others 2005 (2) AWC 1784 and held that
the release application is not barred by
Clause (ii) to the Third Proviso to Section
21 (1) of the Act, 1972. The appellate court
also
noticed
that
petitioner
has
an
alternative
accommodation
within
the
municipal limit of Kasba Tundla for
residential purposes, and therefore, he
cannot object to the release application
because of the Explanation (i) to the Fourth
Proviso to Section 21(1) of the Act, 1972.

9. The appellate court further
considered the bonafide need of respondent
and after appreciating the evidence on
record held that the need of the respondent
is pressing and bonafide and comparative
hardship lay in his favour. Accordingly, it
allowed the release application by order
dated 05.12.2015.

10. Challenging the aforesaid order,
learned Counsel for the petitioner has
contended that it is admitted on record that
disputed property is being used for
residential purposes and its release is sought
for commercial purpose. Therefore, the
application under Section 21 (1) (a) is
barred by clause (ii) to the Third Proviso to
Section 21 (1) of the Act, 1972. He further
submits that the finding of the appellate
court that petitioner has an alternative
residential
accommodation
within
the
municipal limit of Kasba Tundla is perverse
and against the record.

11.

Refuting
the
aforesaid
submission, learned counsel for the
respondent
has
submitted
that
the
appellate
court
has
held
on
the
appreciation of evidence on record that
the
petitioner
has
an
alternative
residential accommodation within the
municipal limit of Kasba Tundala, which
being a finding of fact is not liable to be
interfered with under Article 226 of the
Constitution of India, therefore, the
petitioner is debarred from objecting to
the
release
application
because
of
Explanation (i) to the Fourth proviso to
Section 21 (1) of the Act,1972. He further
contends that the appellate court rightly
relied upon the judgement of this Court in
the case of Dr Piyush Kumar Chaturvedi
Vs. Special Judge (SC/ST Act) Lucknow
and Others 2005 (2) AWC 1784 to hold
that clause (ii) to the Third Proviso to
800 INDIAN LAW REPORTS ALLAHABAD SERIES
Section 21 (1) of the Act, 1972 does not
apply to the facts of the present case.

12. It is also urged that jurisdiction
conferred upon the court under Section 21
(1) (a) is wide and proviso does not
supersede the spirit of the main section of
Vdv the Act, hence, application of
respondent under Section 21 (1) (a) of the
Act, 1972 was maintainable and finding
of the appellate court in this regard is
correct and based upon the proper
understanding of the law.

13. I have considered the rival
submissions of the parties and perused the
record.

14. In the present case, it is not in
dispute between the parties that the
disputed property under the tenancy of the
petitioner has been let out for a residential
purpose and is being used as residential.

15.

Now,
to
appreciate
the
contention of learned counsel for the
petitioner that the releases application
was barred by Clause (ii) of the Third
Proviso to Section 21(1) of Act,1972, it
would be pertinent to refer paragraph 2 of
the release application wherein the
averments concerning the personal need
of the respondent is stated. paragraph 2 of
the release application is reproduced
herein:-

"2. That the property in dispute
is a very old building and in dilapidated
condition and as such it requires for
demolitions and reconstructions. As the
applicant's son and grandson, who are
running their business in the same
property at ground floor are also needful
for its own occupation."

16. It would also be relevant to
notice that Vijay Kumar Jain, the son of
the respondent, in paragraph 4 of the
affidavit
has
stated
that
disputed
property is needed for the establishment
of godown and office. Paragraph 4 of
the
affidavit
is
reproduced
hereinbelow:-

"4. यह तक उल्लेखनीय यह भी है
तक िुझ शपथकिाग के अपने थोक व्यिसाय
के तलए एक सुव्यिब्लस्थि कायागलय एिं
गोिाि के तलए सख्त आिश्यकिा है, तजसके
तलए तक िािग्रस्त संपति सिगथा उपयोगी है,
तजसका तक पुनगतनिागण करके अपने तनजी
उपयोग िें लाया जायेगा."

17. Sonalji, the grandson of the
respondent, has reiterated the averments
of paragraph no. 4 of the affidavit of
Vijay Kumar Jain in paragraph no. 4 of
his affidavit.

18. It is discernible from the
pleadings of the respondent extracted
above that the release of disputed
property is sought for godown and
establishment of an office. Hence, the
purpose for which release of the
disputed
property
is
sought
is
commercial.

19. The Appellate court has held
that that the petitioner has acquired an
alternative
residential
accommodation
within the municipal limit of Kasba
Tundla. On the strength of the said
finding, the counsel for the respondent
argued that petitioner is debarred from
raising
any
objection
to
release
application in view of Explanation (i) to
the Fourth Proviso to Section 21(1) of the
Act,1972.
6 All. Sri Anil Kumar Sharma Vs. Lalta Prasad Jain
801

20. Now, the question which arises
for consideration is whether clause (ii) to
the Third Proviso to Section 21(1) of
Act,1972 prohibits the release of the
residential
building
for
commercial
purpose, even if the tenant has acquired
an alternative accommodation and cannot
object to the release application because
of Explanation (i) to the Fourth Proviso to
Section 21(1) of Act, 1972.

21. The relevant clause of the third
proviso & Explanation (i) to the Fourth
Proviso to Section 21(1) of the Act,1972
is quoted below:

"Provided
also
that
no
application under clause (a) shall be
entertained-

(i)
................................................

(ii) in the case of any residential
building, for occupation for business
purposes;

(iii)
.................................................................

Provided
also
that
the
prescribed authority shall, except in cases
provided for in the Explanation, take into
account the likely hardship to the tenant
from the grant of the application as
against the likely hardship to the landlord
from the refusal of the application and for
that purpose shall have regard to such
factors as may be prescribed.]

Explanation.-In the case of a
residential building:-

(i) where the tenant or any
member of his family 2[(who has been
normally residing with or is wholly
dependent on him)] has built or has
otherwise acquired in a vacant state or has
got vacated after acquisition a residential
building in the same city, municipality,
notified area or town area, no objection
by the tenant against an application under
this sub-section shall be entertained;

.........................................................."

22. A reading of Clause (ii) to the
Third Proviso to Section 21(1) makes it
amply clear that it is mandatory and puts
an embargo upon the court to entertain an
application under clause (a) where the
release of a residential building is sought
for commercial purpose.

23. This court in the case of Rajesh
Kumar Gupta Vs. Deepak Tandon and
Another
2016
(8)
ADJ
652
has
considered the identical issue and held
that a residential building cannot be
released
for
commercial
purposes.
Paragraphs 20 to 22 of the aforesaid
judgement are being extracted herein
below:-

"20. Explanation (i) to the
fourth proviso to Section 21(1) of the Act
stipulates that where the tenant or any
member of his family has built or has
otherwise acquired in a vacant state or
has got vacated after acquisition a
residential building in the same city,
municipality, notified area or town area,
no objection by the tenant against an
application under this sub-section shall
be entertained. In other words, it provides
that if a tenant of a residential premises
has acquired another residential premises
in vacant state he would not be entitled to
raise any objection against the release
application.

21. The aforesaid provision
only debars the tenant from raising
802 INDIAN LAW REPORTS ALLAHABAD SERIES
objection against the release application
but it does not debars the court from
considering the maintainability of the
release application on the pleadings
made in the release application itself.
Thus, notwithstanding any objection to
the release application by the tenant the
release application on the face of it was
not maintainable in so far as it seeks the
release of a residential portion for
business purposes.

22. In the above circumstances,
as the landlords sought release of three
rooms residential portion with a drawing
room, courtyard, kitchen, toilet and
bathroom for business purposes, the
release application to that effect was
barred by clause (ii) to third proviso to
Section 21(1) of the Act."

24. The Apex Court in the case of
Kush Sahgal and Others Vs. M.C. Mitter
& Others 2000 (4) SCC 526 while
considering the scope of Section 21 of the
Act, 1972 held that a residential building
cannot be released for business or
commercial purposes. Paragraph 32 of the
judgement
is
being
extracted
hereinbelow:-

"32. Under Sub-section (1) of
Section 21, a landlord can apply for
eviction of a tenant on the ground that the
building was bona fide required either in
its existing form or after demolition and
new construction by the landlord for
occupation by himself or any member of
his family either for residential purposes
or for purposes of any profession, trade
or calling or on the ground that the
building which was in a dilapidated
condition was required for purposes of
demolition and new construction. The
second
Proviso
to
Sub-section
(2)
however provides that "An application
under Clause (a) shall not be entertained
in the case of any Residential building for
occupation for business purposes". Thus,
if an application is made by the landlord
for eviction of the tenant on the ground
that the building in occupation of that
tenant which was used exclusively for
residential purposes was required for
business purposes or for any other
commercial activity, it would not be a
ground within the meaning of Section
21(1) of the new Act for the eviction of the
tenant and the application will not be
entertained. This we say because the
normal function of a proviso is to except
something out of the enactment or to
qualify something enacted therein which
but for the proviso would be within the
purview
of
the
enactment.
(See:
Kedarnath Jute Manufacturing Co. Ltd. v.
Commercial Tax Officer). Since the
natural presumption is that but for the
proviso, the enacting part of the section
would have included the subject matter of
the proviso, the enacting part has to be
given such a construction which would
make the exceptions carved out by the
proviso necessary and a construction
which
would
make
the
exceptions
unnecessary and redundant should be
avoided (See: Justice G.P. Singh`s
"Principles of Statutory Interpretation"
Seventh Edition 1999, p-163). This
principle has been deduced from the
decision of the Privy Council in Govt. of
the Province of Bombay v. Hormusji
Manekji as also the decision of this Court
in Durga Dutt Sharma v. Navaratna
Pharmaceutical Laboratories."

25. This court in the case of Rajesh
Kumar Gupta (supra) repelled the
contention of the landlord that the tenant
is debarred from objecting to released
6 All. Mohd. Ayub Khan Vs. U.P. State Transport Corp. Ltd. & Ors. 803
application in view of Explanation (i) to
the Fourth Proviso to Section 21(1) of
Act,1972 as he has acquired alternative
accommodation in a vacant state and held
that the release of a residential building
for a commercial purpose is barred by
clause (ii) of the Third Proviso to Section
21(1) of Act,1972.

26. In the present case, it is
established from the pleadings of the
respondent that the disputed property is
residential and its release is sought for
commercial purpose. Therefore, in the
light of principles laid down in the
aforesaid judgements which are binding
precedent, this Court finds substance in
the argument of counsel for the petitioner
that
residential
building
cannot
be
released for commercial purposes.

27. The judgement of this Court in
the case of Dr Piyush Kumar Chaturvedi
(supra) relied upon by the appellate court
is not applicable in the facts of the present
case since the said judgement has not
considered the effect of the Clause (ii) to
the Third Proviso to Section 21 (1) of the
Act, 1972 which prohibits the court from
entertaining an application for release of a
residential
building
for
commercial
purpose.

28. The other two judgements i.e.
Shanti Devi & Others Vs. Swami
Asthanand and Others 2003 (2) SCC 26
and Harrington House School Vs. S.M.
Ispahani and Others 2002 (5) SCC 229
relied upon by the appellate court were
not the cases where the release of a
residential building was sought for
commercial purpose and the tenant had
set up the defence that the release
application was barred by Clause (ii) of
the Third Proviso to Section 21(1) of the
Act,1972. Therefore, the aforesaid two
judgments having been rendered in a
different
factual
context
are
not
applicable in the present case and
appellate court has erred in placing
reliance on the said judgments.

29. Since this court has held that the
release application is barred by Clause (ii)
to the Third Proviso to Section 21(a) of
the Act,1972, therefore, this court does
not find it necessary to consider the other
submissions of the counsel for the
petitioner
challenging
the
impugned
order.

30. Thus, for the reasons given
above, the order of the appellate court
dated 05.12.2015 in P.A. Appeal No.20 of
2009 allowing the release application
cannot be sustained and is accordingly,
set aside.

31. Consequently, the writ petition is
allowed with no order as to costs.

----------

(2020)06ILR A803
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.11.2019

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

WRIT A No. 806 of 2007

Mohd. Ayub Khan ...Petitioner
Versus
U.P. State Road Transport Corp. Ltd. &
Ors. ...Respondents

Counsel for the Petitioner:
Sri S.K. Chaubey, Sri R.K.S. Chauhan

Counsel for the Respondents: