In the instant case, it is the owner who has applied for release under Section 21 of the Rent Act through power of attorney. The application through power of attorney is as if it is by the principal. The power of attorney has not set up his own need and has not filed the release application in his own name. Therefore, the submission that the release application is not maintainable as it has been filed through the power of attorney holder has no force.
The power of attorney holder acts on behalf of the principal and not for any of his personal rights. There is no express prohibition under the Rent Act debarring the owner-landlord from applying for release through power of attorney holder.
The submission that the release application is not signed and verified by the owner and landlady as contemplated by Rule 15 of the Rules framed under the Rent Act is also without substance.
Rule 15 of the Rules provides that the application for release must be signed and verified in the manner prescribed under Rules 14 and 15 of Order VI of the First Schedule to the Code of Civil Procedure.
Rule 14 of Order VI C.P.C. states that every pleading shall be signed by the party and his pleader, if any. Under the proviso it lays down that if a party is not available it may be signed by any person duly authorised by him to sign the same or to sue or defend on his behalf. It by necessary implication means that ordinarily pleadings/release application are required to be signed by the party concerned but in his absence a person duly authorised to sign on his behalf may also sign it which definitely includes the power of attorney.
Thus, there is no bar for the power of attorney holder to sign and verify the pleadings as contemplated by Rule 14 Order VI C.P.C. referred to in Rule 15 of the Rules framed under the Rent Act.
The release application in the case at hand as stated earlier, has been filed in the name of the owner-landlady through the power of attorney holder. It has been signed and verified by the power of attorney holder on behalf of the owner-landlady. The owner-landlady by her own affidavit (paper No.74A-2) has accepted that the release application has been filed on her behalf through the power of attorney holder and that she reiterates and verifies the contents of the release application.
In view of the above, there is no illegality in signing and verifying the release application by the power of attorney holder.
HIGH COURT OF JUDICATURE AT ALLAHABAD
WRIT - A No. - 1974 of 2015
Smt. Rashmi Bhatiya And Another.
Smt. Geeta Sharma And Another.
Citation: 2016 SCCONLINEALL617,
Hon'ble Pankaj Mithal,J.
The dispute is about a shop No.341/1-2, Sadar Bazar, Jhansi.
Smt. Geeta Sharma the respondent No.1 is the owner and landlady of the said shop. It was under the tenancy of Naresh Bhatiya who was running a stationary shop. On his death the tenancy devolved upon his widow Smt. Rashmi Bhatiya and the two unmarried daughters.
The owner and landlady, respondent No.1 applied for release of the above shop under Section 21(1)(a) of the U.P. Act No.13 of 1972 (hereinafter referred to as "the Rent Act") for her bona fide need to establish an Ayurvedic Clinic in its existing form or, if necessary, after demolition and its reconstruction. The release application was contested by Smt. Rashmi Bhatiya by filing a written statement. Later the two daughters of the deceased-tenant were also impleaded and one of them, petitioner No.2 Km. Ritu Bhatiya filed a separate written statement. The other daughter Km. Richa Bhatiya, proforma respondent No.2 did not contest.
The release application was allowed vide judgment and order dated 10.4.2013 passed by the Prescribed Authority and the appeal preferred on behalf of the tenants was dismissed on 16.2.2014. These two orders have been impugned through this writ petition under Article 226 of the Constitution of India.
I have heard Sri Rishikesh Tripathi, learned counsel for the petitioners and Sri Anil Sharma along with Sri Sanjay Agarwal for the contesting respondent No.1. The respondent No.2 is a formal party who had not participated in the proceedings in the courts below.
Sri Tripathi in assailing the impugned judgments has raised the following three points:-
(1) The release application was filed by the power of attorney holder of the landlady and, as such, was not maintainable;
(2) The courts below have erred in holding the need set up in the release application to be bona fide; and
(3) The comparative hardship is in favour of the petitioners.
Learned counsel for the parties accept that the principal issue for consideration is whether a power of attorney holder of the owner-landlord can file the release application and that the other two points are more or less factual in nature and probably may not require to be dealt with in view of the limited scope under Article 226/227 of the Constitution of India.
Sri Tripathi in addressing the first point submitted that the release application can only be filed by the landlord who is the owner of the property and that the power of attorney holder has no right to file it. In order to elaborate his argument he relied upon the definition of the landlord given under Section 3(j) of the Rent Act and certain decisions of the Court. He has also submitted that Rule 15 of the Rules framed under the Rent Act contemplates signing and verification of the release application in the manner prescribed in C.P.C. and provides that where there are more than one landlords it should be signed by all the co-landlords which mean that it has to be signed by the landlord i.e. the owner and by none else.
The release application as filed by the respondent No.1 is Annexure - 1 to the petition. The said release application has been filed in the name of the respondent No.1, Smt. Geeta Sharma through special power of attorney holder Narendra Mukhraiya. The release application in the end has been signed and verified by the aforesaid power of attorney holder. It does not bear the signatures of the owner-landlady/respondent No.1.
A reading of the release application amply demonstrates that it is an application on behalf of the owner and landlady of the shop through the power of attorney holder. The need set up in the application is also of the owner and landlady and it is not for any personal right or interest of the power of attorney holder.
A power of attorney is ordinarily a document of convenience empowering a person to act for in the name of the principal. It is an instrument of agency covered by the Contract Act in general.
There is a specific Act governing the powers of attorney i.e. the Powers of Attorney Act, 1882. It defines the "powers of attorney" to include any instrument empowering a specified person to act for in the name of the person executing it.
In common parlance a "power of attorney" means a formal instrument by which one person empowers another to represent him or to act in his place for certain or all purposes.
Recently, the Supreme Court had an occasion to deal with the powers of attorneys in the case of Tmt. Kasthuri Radhakrishnan and others Vs. M. Chinniyan and another AIR 2016 SCW 609. In the said case one V. Dhanapal was power of attorney holder of A. Radhakrishnan. He executed a tenancy agreement on his behalf in favour of respondent No.1. The question arose as to whether any tenancy had come into existence between V. Dhanapal and respondent No.1. The court applying the well settled principles of law held that when Dhanapal, who was acting as an agent of A. Radhakrishnan on the strength of power of attorney, executed the tenancy agreement with respondent No. 1 in relation to the suit premises then he did such execution for and behalf of his principal - A Radhakrishnan, which resulted in creating a relationship of landlord and tenant between A. Radhakrishnan and respondent No. 1 in relation to the suit premises. In this execution, Dhanapal being an agent did not get any right, title and interest of any nature either in the suit premises or in tenancy in himself. The effect of execution of tenancy agreement by an agent was as if A. Radhakrishnan himself had executed it with respondent No.1.
The Supreme Court therein quoting from State of Rajasthan Vs. Basant Nahata (2005) 12 SCC 77 and considering the provisions of Power of Attorney Act, 1882 held that it is well settled that an agent acting under a power of attorney always acts, as a general rule, in the name of his principal. Any document executed or thing done by an agent on the strength of power of attorney is as effective as if executed or done in the name of principal, i.e., by the principal himself. An agent, therefore, always acts on behalf of the principal and exercises only those powers, which are given to him in the power of attorney by the principal. Any act or thing done by the agent on the strength of power of attorney is, therefore, never construed or/and treated to have been done by the agent in his personal capacity so as to create any right in his favour but is always construed as having done by the principal himself. An agent, therefore, never gets any personal benefit of any nature.
More recently a Full Bench of the Allahabad High Court in Syed Wasif Husain Rizvi Vs. Hasan Raza Khan 2016 (2) ADJ 571 (LB)(FB) was ceased of a question whether a writ petition can be filed through a power of attorney holder. The Court after considering entire law on the subject came to the conclusion that a person is entitle to maintain a writ petition through a power of attorney.
In view of the aforesaid decisions there is no legal bar for a power of attorney holder in presenting a suit or filing a writ petition in the name of the principal. Accordingly, when a power of attorney holder is authorised to file a writ petition in the name of the principal the inference is clear that he can also file a release application under Section 21(1)(a) of the Rent Act on behalf of the principal owner-landlord as there is no specific prohibition.
Section 21 of the Rent Act envisages an application of the landlord for eviction of a tenant if the premises is bona fide required by him for occupation by him or any member of his family.
In view of the above, the application for release has to be an application by the landlord for bona fide need of himself or any member of his family. In such circumstances, the need cannot be of anyone else, much-less that of the agent or the power of attorney holder.
The decision in the case of M.M. Quasim Vs. Manohar Lal Sharma and others AIR 1981 SC 1113 is only to the effect that the word 'landlord' may include a person who is receiving or is entitle to receive rent of a building but for the purposes of claiming possession on the ground of bona fide need he must show that he is landlord in the sense that he is the owner of the building and has a right to occupy it in his own right. A mere rent collector may not be sufficient for such an application.
The aforesaid decision was rendered by the Supreme Court in connection with the Bihar Buildings (Lease, Rent and Eviction) Control Act which contains provisions analogous to the Rent Act in U.P.
The definition of the 'landlord' in the rent enactments is of vide amplitude which not only covers the owner of the property who has the right to occupy it but also the person receiving or collecting rent on his behalf. But for the purposes of release of the property from the tenant the word 'landlord' was interpreted in a narrower sense excluding the rent collector and confining it to the owner of the property.
In Smt. Sughra Begum Vs. Sri Ram and others 1982 (2) ARC 143 His Lordship of this Court (Later Chief Justice) relying upon M.M. Quasim Vs. Manohar Lal Sharma and others (supra) held that an agent or attorney of the owner of the house may realise rent and may be considered to be landlord within the meaning of Section 3(j) of the Rent Act but such a person would not be entitle to move an application for release under Section 21 of the Rent Act.
The aforesaid decision was followed by another judge of this Court in the case of Smt. Ved Rani Diwan and another Vs. VIIIth Additional District Judge, Ghaziabad and others 1996 (2) ARC 14 wherein it was laid down that a person taken as a landlord for the purposes of realising rent under Section 3(j) of the Act if not entitle to occupy the building let out to a tenant in his own right as landlord, cannot be recognized as a landlord for the purposes of filing application for release under Section 21(1)(a) of the Act for his own use.
A similar view was expressed in Fakaruddin Khan Vs. Xth Additional District Judge, Kanpur and others 1998 (1) ARC 449.
In Mam Chand and others Vs. Pramodini Srivastava and others 2014 (5) ALJ 106 it has been held that an application under Section 21 of the Rent Act cannot be filed by mere agent or attorney as he cannot substitute the real owner or the landlord for the purposes of adducing evidence. The right to get a building demolished and reconstructed cannot be allowed to be exercised at the instance of a person who has been authorised to collect rent. The authority of the person empowered to collect the rent must be much more than mere collection of rent which necessarily means that of an owner or the person entitle to occupy the property in his own right.
All the aforesaid decisions deal with the definition of landlord as contained in various statutes including the Rent Act in question and it is held to be narrower for the purposes of applying for release of the accommodation. Even in the narrower sense, as explained by the aforesaid authorities, it is the owner who has been held to be entitle to apply for release of the building.
In the instant case, it is the owner who has applied for release under Section 21 of the Rent Act through power of attorney. The application through power of attorney is as if it is by the principal. The power of attorney has not set up his own need and has not filed the release application in his own name. Therefore, the submission that the release application is not maintainable as it has been filed through the power of attorney holder has no force.
The power of attorney holder acts on behalf of the principal and not for any of his personal rights. There is no express prohibition under the Rent Act debarring the owner-landlord from applying for release through power of attorney holder.
The submission that the release application is not signed and verified by the owner and landlady as contemplated by Rule 15 of the Rules framed under the Rent Act is also without substance.
Rule 15 of the Rules provides that the application for release must be signed and verified in the manner prescribed under Rules 14 and 15 of Order VI of the First Schedule to the Code of Civil Procedure.
Rule 14 of Order VI C.P.C. states that every pleading shall be signed by the party and his pleader, if any. Under the proviso it lays down that if a party is not available it may be signed by any person duly authorised by him to sign the same or to sue or defend on his behalf. It by necessary implication means that ordinarily pleadings/release application are required to be signed by the party concerned but in his absence a person duly authorised to sign on his behalf may also sign it which definitely includes the power of attorney.
Thus, there is no bar for the power of attorney holder to sign and verify the pleadings as contemplated by Rule 14 Order VI C.P.C. referred to in Rule 15 of the Rules framed under the Rent Act.
The release application in the case at hand as stated earlier, has been filed in the name of the owner-landlady through the power of attorney holder. It has been signed and verified by the power of attorney holder on behalf of the owner-landlady. The owner-landlady by her own affidavit (paper No.74A-2) has accepted that the release application has been filed on her behalf through the power of attorney holder and that she reiterates and verifies the contents of the release application.
In view of the above, there is no illegality in signing and verifying the release application by the power of attorney holder.
Now adverting to the bona fide need of the owner-landlady, the courts below have concurrently held in her favour. The mere fact that the owner-landlady is a rich person is not enough to deny the release of the shop to her when otherwise her need is found to be genuine and bona fide. The finding in this regard is not shown to be perverse which may permit any interference by this Court.
The comparative hardship as held by the courts below does not tilt in favour of the petitioners for the simple reason that they have not made any serious effort to search out any alternative accommodation. They have not even applied for allotment of any shop which clearly indicates their casual approach, if any, in searching out an alternative shop.
This apart, it has come on record that petitioner No.1 is a Teacher in a school. She, therefore, cannot run the shop despite tenancy having devolved upon her. It is not their case that the shop would be run by the daughter of the deceased-tenant or by someone onher behalf.
Sri Rishikesh Tripathi had argued that the need of the landlady-respondent No.1 is for establishing an Ayurvedic Clinic in place of the shop. The shop is situate within the cantonment limits where no new construction can be done without prior permission of the Cantonment Board as envisaged under Section 234 of the Act. The landlady-respondent No.1 has not applied for sanction of the map, her need is not imminent and is a mere desire.
The argument is based upon a complete misreading of the plaint case. The landlady-respondent No.1 in her release application has clearly stated that on the release of the shop in dispute she would open an Ayurvedic Clinic/Spa therein for which she has no other place and the shop in dispute is ideal for it. In paragraph 7 of the release application it has clearly been stated that she requires the shop in its existing state and only, if necessary, she will undertake some changes or its reconstruction. The reconstruction of a new building after demolition of the shop was only a remote possibility. The permission for reconstruction would be necessary only after a final decision is taken for the demolition of the existing shop and its reconstrution. The said situation has not arisen. In these circumstances, seeking permission for reconstruction of the shop was not necessary to establish bona fide need.
In view of the aforesaid facts and circumstances, there is no merit in the petition and the same is dismissed.
Order Date :- 05.08.2016
Print Page
The power of attorney holder acts on behalf of the principal and not for any of his personal rights. There is no express prohibition under the Rent Act debarring the owner-landlord from applying for release through power of attorney holder.
The submission that the release application is not signed and verified by the owner and landlady as contemplated by Rule 15 of the Rules framed under the Rent Act is also without substance.
Rule 15 of the Rules provides that the application for release must be signed and verified in the manner prescribed under Rules 14 and 15 of Order VI of the First Schedule to the Code of Civil Procedure.
Rule 14 of Order VI C.P.C. states that every pleading shall be signed by the party and his pleader, if any. Under the proviso it lays down that if a party is not available it may be signed by any person duly authorised by him to sign the same or to sue or defend on his behalf. It by necessary implication means that ordinarily pleadings/release application are required to be signed by the party concerned but in his absence a person duly authorised to sign on his behalf may also sign it which definitely includes the power of attorney.
Thus, there is no bar for the power of attorney holder to sign and verify the pleadings as contemplated by Rule 14 Order VI C.P.C. referred to in Rule 15 of the Rules framed under the Rent Act.
The release application in the case at hand as stated earlier, has been filed in the name of the owner-landlady through the power of attorney holder. It has been signed and verified by the power of attorney holder on behalf of the owner-landlady. The owner-landlady by her own affidavit (paper No.74A-2) has accepted that the release application has been filed on her behalf through the power of attorney holder and that she reiterates and verifies the contents of the release application.
In view of the above, there is no illegality in signing and verifying the release application by the power of attorney holder.
HIGH COURT OF JUDICATURE AT ALLAHABAD
WRIT - A No. - 1974 of 2015
Smt. Rashmi Bhatiya And Another.
Smt. Geeta Sharma And Another.
Citation: 2016 SCCONLINEALL617,
Hon'ble Pankaj Mithal,J.
The dispute is about a shop No.341/1-2, Sadar Bazar, Jhansi.
Smt. Geeta Sharma the respondent No.1 is the owner and landlady of the said shop. It was under the tenancy of Naresh Bhatiya who was running a stationary shop. On his death the tenancy devolved upon his widow Smt. Rashmi Bhatiya and the two unmarried daughters.
The owner and landlady, respondent No.1 applied for release of the above shop under Section 21(1)(a) of the U.P. Act No.13 of 1972 (hereinafter referred to as "the Rent Act") for her bona fide need to establish an Ayurvedic Clinic in its existing form or, if necessary, after demolition and its reconstruction. The release application was contested by Smt. Rashmi Bhatiya by filing a written statement. Later the two daughters of the deceased-tenant were also impleaded and one of them, petitioner No.2 Km. Ritu Bhatiya filed a separate written statement. The other daughter Km. Richa Bhatiya, proforma respondent No.2 did not contest.
The release application was allowed vide judgment and order dated 10.4.2013 passed by the Prescribed Authority and the appeal preferred on behalf of the tenants was dismissed on 16.2.2014. These two orders have been impugned through this writ petition under Article 226 of the Constitution of India.
I have heard Sri Rishikesh Tripathi, learned counsel for the petitioners and Sri Anil Sharma along with Sri Sanjay Agarwal for the contesting respondent No.1. The respondent No.2 is a formal party who had not participated in the proceedings in the courts below.
Sri Tripathi in assailing the impugned judgments has raised the following three points:-
(1) The release application was filed by the power of attorney holder of the landlady and, as such, was not maintainable;
(2) The courts below have erred in holding the need set up in the release application to be bona fide; and
(3) The comparative hardship is in favour of the petitioners.
Learned counsel for the parties accept that the principal issue for consideration is whether a power of attorney holder of the owner-landlord can file the release application and that the other two points are more or less factual in nature and probably may not require to be dealt with in view of the limited scope under Article 226/227 of the Constitution of India.
Sri Tripathi in addressing the first point submitted that the release application can only be filed by the landlord who is the owner of the property and that the power of attorney holder has no right to file it. In order to elaborate his argument he relied upon the definition of the landlord given under Section 3(j) of the Rent Act and certain decisions of the Court. He has also submitted that Rule 15 of the Rules framed under the Rent Act contemplates signing and verification of the release application in the manner prescribed in C.P.C. and provides that where there are more than one landlords it should be signed by all the co-landlords which mean that it has to be signed by the landlord i.e. the owner and by none else.
The release application as filed by the respondent No.1 is Annexure - 1 to the petition. The said release application has been filed in the name of the respondent No.1, Smt. Geeta Sharma through special power of attorney holder Narendra Mukhraiya. The release application in the end has been signed and verified by the aforesaid power of attorney holder. It does not bear the signatures of the owner-landlady/respondent No.1.
A reading of the release application amply demonstrates that it is an application on behalf of the owner and landlady of the shop through the power of attorney holder. The need set up in the application is also of the owner and landlady and it is not for any personal right or interest of the power of attorney holder.
A power of attorney is ordinarily a document of convenience empowering a person to act for in the name of the principal. It is an instrument of agency covered by the Contract Act in general.
There is a specific Act governing the powers of attorney i.e. the Powers of Attorney Act, 1882. It defines the "powers of attorney" to include any instrument empowering a specified person to act for in the name of the person executing it.
In common parlance a "power of attorney" means a formal instrument by which one person empowers another to represent him or to act in his place for certain or all purposes.
Recently, the Supreme Court had an occasion to deal with the powers of attorneys in the case of Tmt. Kasthuri Radhakrishnan and others Vs. M. Chinniyan and another AIR 2016 SCW 609. In the said case one V. Dhanapal was power of attorney holder of A. Radhakrishnan. He executed a tenancy agreement on his behalf in favour of respondent No.1. The question arose as to whether any tenancy had come into existence between V. Dhanapal and respondent No.1. The court applying the well settled principles of law held that when Dhanapal, who was acting as an agent of A. Radhakrishnan on the strength of power of attorney, executed the tenancy agreement with respondent No. 1 in relation to the suit premises then he did such execution for and behalf of his principal - A Radhakrishnan, which resulted in creating a relationship of landlord and tenant between A. Radhakrishnan and respondent No. 1 in relation to the suit premises. In this execution, Dhanapal being an agent did not get any right, title and interest of any nature either in the suit premises or in tenancy in himself. The effect of execution of tenancy agreement by an agent was as if A. Radhakrishnan himself had executed it with respondent No.1.
The Supreme Court therein quoting from State of Rajasthan Vs. Basant Nahata (2005) 12 SCC 77 and considering the provisions of Power of Attorney Act, 1882 held that it is well settled that an agent acting under a power of attorney always acts, as a general rule, in the name of his principal. Any document executed or thing done by an agent on the strength of power of attorney is as effective as if executed or done in the name of principal, i.e., by the principal himself. An agent, therefore, always acts on behalf of the principal and exercises only those powers, which are given to him in the power of attorney by the principal. Any act or thing done by the agent on the strength of power of attorney is, therefore, never construed or/and treated to have been done by the agent in his personal capacity so as to create any right in his favour but is always construed as having done by the principal himself. An agent, therefore, never gets any personal benefit of any nature.
More recently a Full Bench of the Allahabad High Court in Syed Wasif Husain Rizvi Vs. Hasan Raza Khan 2016 (2) ADJ 571 (LB)(FB) was ceased of a question whether a writ petition can be filed through a power of attorney holder. The Court after considering entire law on the subject came to the conclusion that a person is entitle to maintain a writ petition through a power of attorney.
In view of the aforesaid decisions there is no legal bar for a power of attorney holder in presenting a suit or filing a writ petition in the name of the principal. Accordingly, when a power of attorney holder is authorised to file a writ petition in the name of the principal the inference is clear that he can also file a release application under Section 21(1)(a) of the Rent Act on behalf of the principal owner-landlord as there is no specific prohibition.
Section 21 of the Rent Act envisages an application of the landlord for eviction of a tenant if the premises is bona fide required by him for occupation by him or any member of his family.
In view of the above, the application for release has to be an application by the landlord for bona fide need of himself or any member of his family. In such circumstances, the need cannot be of anyone else, much-less that of the agent or the power of attorney holder.
The decision in the case of M.M. Quasim Vs. Manohar Lal Sharma and others AIR 1981 SC 1113 is only to the effect that the word 'landlord' may include a person who is receiving or is entitle to receive rent of a building but for the purposes of claiming possession on the ground of bona fide need he must show that he is landlord in the sense that he is the owner of the building and has a right to occupy it in his own right. A mere rent collector may not be sufficient for such an application.
The aforesaid decision was rendered by the Supreme Court in connection with the Bihar Buildings (Lease, Rent and Eviction) Control Act which contains provisions analogous to the Rent Act in U.P.
The definition of the 'landlord' in the rent enactments is of vide amplitude which not only covers the owner of the property who has the right to occupy it but also the person receiving or collecting rent on his behalf. But for the purposes of release of the property from the tenant the word 'landlord' was interpreted in a narrower sense excluding the rent collector and confining it to the owner of the property.
In Smt. Sughra Begum Vs. Sri Ram and others 1982 (2) ARC 143 His Lordship of this Court (Later Chief Justice) relying upon M.M. Quasim Vs. Manohar Lal Sharma and others (supra) held that an agent or attorney of the owner of the house may realise rent and may be considered to be landlord within the meaning of Section 3(j) of the Rent Act but such a person would not be entitle to move an application for release under Section 21 of the Rent Act.
The aforesaid decision was followed by another judge of this Court in the case of Smt. Ved Rani Diwan and another Vs. VIIIth Additional District Judge, Ghaziabad and others 1996 (2) ARC 14 wherein it was laid down that a person taken as a landlord for the purposes of realising rent under Section 3(j) of the Act if not entitle to occupy the building let out to a tenant in his own right as landlord, cannot be recognized as a landlord for the purposes of filing application for release under Section 21(1)(a) of the Act for his own use.
A similar view was expressed in Fakaruddin Khan Vs. Xth Additional District Judge, Kanpur and others 1998 (1) ARC 449.
In Mam Chand and others Vs. Pramodini Srivastava and others 2014 (5) ALJ 106 it has been held that an application under Section 21 of the Rent Act cannot be filed by mere agent or attorney as he cannot substitute the real owner or the landlord for the purposes of adducing evidence. The right to get a building demolished and reconstructed cannot be allowed to be exercised at the instance of a person who has been authorised to collect rent. The authority of the person empowered to collect the rent must be much more than mere collection of rent which necessarily means that of an owner or the person entitle to occupy the property in his own right.
All the aforesaid decisions deal with the definition of landlord as contained in various statutes including the Rent Act in question and it is held to be narrower for the purposes of applying for release of the accommodation. Even in the narrower sense, as explained by the aforesaid authorities, it is the owner who has been held to be entitle to apply for release of the building.
In the instant case, it is the owner who has applied for release under Section 21 of the Rent Act through power of attorney. The application through power of attorney is as if it is by the principal. The power of attorney has not set up his own need and has not filed the release application in his own name. Therefore, the submission that the release application is not maintainable as it has been filed through the power of attorney holder has no force.
The power of attorney holder acts on behalf of the principal and not for any of his personal rights. There is no express prohibition under the Rent Act debarring the owner-landlord from applying for release through power of attorney holder.
The submission that the release application is not signed and verified by the owner and landlady as contemplated by Rule 15 of the Rules framed under the Rent Act is also without substance.
Rule 15 of the Rules provides that the application for release must be signed and verified in the manner prescribed under Rules 14 and 15 of Order VI of the First Schedule to the Code of Civil Procedure.
Rule 14 of Order VI C.P.C. states that every pleading shall be signed by the party and his pleader, if any. Under the proviso it lays down that if a party is not available it may be signed by any person duly authorised by him to sign the same or to sue or defend on his behalf. It by necessary implication means that ordinarily pleadings/release application are required to be signed by the party concerned but in his absence a person duly authorised to sign on his behalf may also sign it which definitely includes the power of attorney.
Thus, there is no bar for the power of attorney holder to sign and verify the pleadings as contemplated by Rule 14 Order VI C.P.C. referred to in Rule 15 of the Rules framed under the Rent Act.
The release application in the case at hand as stated earlier, has been filed in the name of the owner-landlady through the power of attorney holder. It has been signed and verified by the power of attorney holder on behalf of the owner-landlady. The owner-landlady by her own affidavit (paper No.74A-2) has accepted that the release application has been filed on her behalf through the power of attorney holder and that she reiterates and verifies the contents of the release application.
In view of the above, there is no illegality in signing and verifying the release application by the power of attorney holder.
Now adverting to the bona fide need of the owner-landlady, the courts below have concurrently held in her favour. The mere fact that the owner-landlady is a rich person is not enough to deny the release of the shop to her when otherwise her need is found to be genuine and bona fide. The finding in this regard is not shown to be perverse which may permit any interference by this Court.
The comparative hardship as held by the courts below does not tilt in favour of the petitioners for the simple reason that they have not made any serious effort to search out any alternative accommodation. They have not even applied for allotment of any shop which clearly indicates their casual approach, if any, in searching out an alternative shop.
This apart, it has come on record that petitioner No.1 is a Teacher in a school. She, therefore, cannot run the shop despite tenancy having devolved upon her. It is not their case that the shop would be run by the daughter of the deceased-tenant or by someone onher behalf.
Sri Rishikesh Tripathi had argued that the need of the landlady-respondent No.1 is for establishing an Ayurvedic Clinic in place of the shop. The shop is situate within the cantonment limits where no new construction can be done without prior permission of the Cantonment Board as envisaged under Section 234 of the Act. The landlady-respondent No.1 has not applied for sanction of the map, her need is not imminent and is a mere desire.
The argument is based upon a complete misreading of the plaint case. The landlady-respondent No.1 in her release application has clearly stated that on the release of the shop in dispute she would open an Ayurvedic Clinic/Spa therein for which she has no other place and the shop in dispute is ideal for it. In paragraph 7 of the release application it has clearly been stated that she requires the shop in its existing state and only, if necessary, she will undertake some changes or its reconstruction. The reconstruction of a new building after demolition of the shop was only a remote possibility. The permission for reconstruction would be necessary only after a final decision is taken for the demolition of the existing shop and its reconstrution. The said situation has not arisen. In these circumstances, seeking permission for reconstruction of the shop was not necessary to establish bona fide need.
In view of the aforesaid facts and circumstances, there is no merit in the petition and the same is dismissed.
Order Date :- 05.08.2016
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