Remanded

Deoki Nandan v. Mohan Lal Agarwal and 3 Others

Allahabad HC8 May 2018A227/3228/2018

Case brief

AI extract

What is this about?

The High Court in a writ petition set aside an order of the Appellate Authority and remanded the matter for decision on whether a release application for residential property to be used as a commercial godown was maintainable.

What did the court decide?

The order of the Appellate Authority dated 20.3.2018 was set aside and the matter remanded to the Appellate Authority to return a finding on the maintainability of the Release Application under Sectio

Deoki Nandan Vs Mohan Lal Agarwal and 3 Others — Landlord and Tenant | Allahabad HC (2018)

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Court No. - 26 Case :- MATTERS UNDER ARTICLE 227 No. - 3228 of 2018 Petitioner :- Deoki Nandan Respondent :- Mohan Lal Agarwal And 3 Others Counsel for Petitioner :- Abu Bakht,Sr. Advocate Pramod Kumar Jain Counsel for Respondent :- Anupam Kumar

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Hon'ble Mrs. Sangeeta Chandra,J.

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Oral

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Heard Sri P.K. Jain, learned Senior Advocate assisted by Sri Abu Bakht appearing for the petitioner / tenant and Sri Anupam Kumar for the respondent no. 1.

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Learned counsel for the petitioner / tenant has pointed out that the building in question which is a godown is situated in a residential property bearing no. 515(1)/5 ad-measuring 120 square meters at Mohalla Ahata, Anandpuram, District Hapur. The actual measurement of the godown in dispute in possession of the petitioner / tenant is 60 square metres. The petitioner / tenant had taken the aforesaid property on rent from its erstwhile owners at Rs. 198/- per month along with water tax.

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The landlord / respondent no. 1 had bought the property through a sale deed from the erstwhile owner on 15.4.2006. In the sale deed, the said property was mentioned as residential being 200 metres away from the main road and stamp duty was paid thereon treating it to be for residential purpose.

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A Release Application was filed by the respondent / landlord under Section 21(1)(a) showing the need for storage of shoes in pursuance of the business carried on by the respondent / landlord relating to selling of shoes.

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Learned counsel for the petitioner / tenant has referred to the third proviso to Section 21(1) which says that no application under clause 21(1)(a) shall be entertained in case of any residential

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building for occupation for business purposes.

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Learned counsel for the petitioner / tenant has pointed out that on the objections raised by the petitioner / tenant, this was the first issue that was framed by the Prescribed Authority for decision of the Release Application, and he has also pointed out the finding recorded thereupon by the Prescribed Authority to the effect that the petitioner / tenant was carrying out the business of giving on rent materials / utensils use for running a Kolhu. The storage of utensils for running a Kolhu and giving them out on rent would not convert the property into a commercial property.

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Learned counsel for the petitioner / tenant has relied upon a judgment rendered by this Court in Kailash Nath Bajpai Vs. Chandra Shekhar Singh 1996 ALJ 967 where a property which was commercial in nature was converted by the tenant for user into residential purpose without consent of the landlord. The landlord wanted release of the premises for his doctor son to run a clinic. The tenant took the plea that under the third proviso to Section 21(1)(ii) residential premises cannot be released for commercial purpose and this Court held that the original nature of the property was commercial and the tenant had started using it for residential purpose, it would not convert the property into residential property not liable to be released under the third proviso to Section 21(1) (ii).

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Learned counsel for the petitioner / tenant says that vice versa , a property which was residential in nature and has despite its description as such to be residential in nature even in the sale deed, cannot be converted for a commercial purpose only because the tenant was using it to store material and utensils used for running a Kolhu.

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This finding of the Prescribed Authority has also not been approved of by the Appellate Authority. The Appellate Authority on internal page 68 of the order has mentioned that even if the petitioner / tenant was using it for commercial purpose, the nature of the property in question would not change from residential to commercial.

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It has been argued by the learned counsel for the petitioner / tenant that despite the finding of the Prescribed Authority being overturned by the Appellate Authority in its order impugned, it has gone on to record an absolutely contrary conclusion in the operative portion of the order wherein it has affirmed the order passed by the Prescribed Authority.

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Learned counsel for the respondent no. 1 / landlord on the other hand has argued on the basis of observations made both by the Prescribed Authority and by the Appellate Authority that the petitioner / tenant himself was using the property in question for commercial purpose i.e. for running a business of letting out on rent material / utensils for running a Kolhu. Therefore, he could not object to the landlord using the said property for commercial purpose as a godown for storage of shoes in the course of his business.

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Having considered the arguments made by the learned counsel for the parties and having gone through the orders passed by the Prescribed Authority and the Appellate Authority, this Court finds that the Prescribed Authority had framed issue no. 1 / point for determination as whether the Release Application was barred under the third proviso to Section 21(1) of the U.P. Act No. 13 of 1972.

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The Prescribed Authority had also discussed whether the property in question was being used by the petitioner / tenant as a commercial premises and whether the said property was going to be used not for residential, but for commercial premises by the respondent / landlord as mentioned in his Release Application. He had returned a finding in favour of the landlord. However, when the Appellate Authority considered the said finding, he overturned the finding made by the Prescribed Authority in favour of the landlord. He has mentioned that even if the tenant had changed the nature of the property which was initially residential for commercial purpose and was using it for storage of material / utensils for running a Kolhu, the original nature of the property being residential could not be said to have

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changed. Yet in the operative portion of the order passed by the Appellate Authority, it has not taken into account whether on the basis of such a finding recorded by it in the earlier part of the order, the application for release under Section 21(1)(a) was maintainable.

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This Court therefore considered it appropriate to set aside the order passed by the Appellate Authority dated 20.3.2018 and remand the matter to the Appellate Authority to return a finding with regard to whether the Release Application under Section 21(1)(a) was maintainable for the avowed purpose for which it was preferred by the respondent / landlord i.e. for storage of shoes in the furtherance of carrying on his business of selling shoes.

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Since, evidence has already been led by both the parties and the pleadings are complete, the Appellate Authority shall try and decide the matter without giving unnecessary adjournment to either side within a period of three months from the date a certified copy of this order is produced before him.

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This petition is disposed of.

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Order Date :- 8.5.2018 Arif

Deoki Nandan v. Mohan Lal Agarwal and 3 Others

Case brief

What is this about?

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Deoki Nandan v. Mohan Lal Agarwal and 3 Others

Case brief

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