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2003 Supreme(All) 1828
HIGH COURT OF ALLAHABAD
Yatindra Singh
Bilal
Versus
II Addl Distict and Session Judge Bulandshahr
Civil Misc Writ Petition 38093 of 2000
Decided On : 02 September 2003
Civil Misc Writ Petition 38093 Of 2000
M.K.Gupta, V.M.Zaidi,
The need of a private company cannot be equated with the personal need of its shareholders.
Headnote:
landlord - shop vacation - UP Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, section 21-1(a) - Sections 3(iii), 3(iv), 12 of the Companies Act - Salomon Vs. Salomon 1897 AC 22 - Shubhra Mukharjee Vs. Bharat Cocking Coal Ltd; AIR 2000 SC 1203 - Tunstall Vs. Steigmann; 1962 (2) All ER 24 - Sevenarb Ltd Vs. Busvine 1969 (1) All ER 392 - cit Vs Sri Meenakshi Mills Ltd (AIR 1967 SC 819) - dda VS. Skipper Constructions 1996 (4) SCC 622
Fact of the Case:
The contesting respondent, also a director and shareholder in a private company, filed for shop vacation under section 21-1(a) of the Act, claiming the shop was needed for the company's sale point. The petitioner contested, and the courts below allowed the application. The petitioner raised jurisdictional questions in the writ petition.
Finding of the Court:
The court allowed the petitioner to raise jurisdictional questions, held that the need of a private company cannot be equated with the personal need of its shareholders, and dismissed the application of the contesting respondent under section 21(1)(a).
Issues: (i) Whether the petitioner can raise jurisdictional questions for the first time in the writ petition? (ii) Whether the application filed by the contesting respondent was maintainable or not? (iii) Whether the finding regarding bona fide need recorded by the court below is illegal as relevant factors are not considered?
Ratio Decidendi: A point of law regarding jurisdiction can be raised for the first time in the writ petition if it arises on admitted or found facts. The need of a private company cannot be equated with the personal need of its shareholders.
Final Decision: The writ petition is allowed, the judgments of the courts below are quashed, and the application of the contesting respondent is dismissed. The parties shall bear their costs throughout.
( 2 ) THE contesting respondent is owner and landlord of the shop in question and the petitioner is the tenant. The contesting respondent filed an application under section 21-1 (a) of the Act for release of the shop on the ground that he along with his brother are the co-sharers in a private limited company by the name of Dalpati Cement Factory Pvt Ltd. (the company) and the shop is required for the sale point of the factory established by the company. This application was contested by the petitioner. The Prescribed Authority by the order dated 28. 5. 1991 allowed the application of the contesting respondent holding that the need of the contesting respondent is bona fide and greater hardship will occasion to him in case his application is rejected. The petitioner filed an appeal which was dismissed on 29. 7. 2000. Hence the present writ petition.
( 3 ) I have heard Sri VM Zadi, counsel for the petitioner and Sri MK Gupta counsel for the contesting respondent. Following points arise for consideration in this case.
(i) The petitioner had not raised the plea before the courts below that the application filed by the contesting respondent was not maintainable as the shop was required by the company and not by the contesting respondent. Can he raise this plea for the first time in the writ petition? (ii) In case the petitioner is entitled to raise the aforesaid plea then whether the application filed by the contesting respondent was maintainable or not ? (iii) Whether the finding regarding bona fide need recorded by the court below is illegal as relevant factors are not considered?
( 4 ) IT is correct that the plea?that the application filed by the contesting respondent is not maintainable as the need is of the company and not of the contesting respondent?was not raised by the petitioner before the court below, but facts are admitted. The law in this regard has summed up in Shorter Constitution of India by Dr. Durga Das Basu 13th edition (page 856) as follows:
The High Court would not, generally, entertain a point, which was not taken before the inferior tribunal or court. But if the plea, though not specifically raised before a subordinate tribunal, is raised before the High Court in the writ proceedings for the first time, and it goes to the root of the question and is based on admitted and uncontroverted facts such plea should be allowed to be raised. It is desirable that a litigant is not shut out from raising such plea which goes to the root of the lis involved.
( 5 ) THE case of the contesting respondent himself is that he is owner and landlord of the shop in question. It is further his case that the shop is required for the sale point for the cement factory of the company. The petitioner is raising question regarding maintainability of the application. It is jurisdictional question. Facts are admitted; they are based on the case of the contesting respondent. There is no justification for not permitting the petitioner to raise this plea.
( 6 ) COUNSEL for the contesting respondent submitted that prejudice has been caused to the contesting respondent and as such the petitioner should not be permitted to raise this plea. According to him in case this plea had been raised before the courts below then, the petitioner would have withdrawn his application; transferred the property in favour the company; thereafter would have filed the application on behalf of the Company.
( 7 ) THIS is no prejudice; in case the plea of the petitioner is upheld then the contesting respondent can still do the same. In case it so happens then the courts would be at liberty to consider it in accordance with law considering the need o
