- (1.) YATINDRA Singh, J. Whether an owner and a landlord - who is also one the directors and a share holder in a private company - can get a shop vacated for the need of the company under Section 21-1 (a) of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (the Act)? This is the main point involved in this writ petition. FACTs
(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. POINT FOR DETERMINATIOn I have heard Sri V. M. Zaidi, Counsel for the petitioner and Sri M. K. 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? 1st POINT: THE PETITIONER IS ENTITLED TO RAISE THE PLEA. 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 Biswanath Banerjee v. State of WB, AIR 1971, SC 1038 (1040) : (1971) 1 SCC 667; Murugesan v. Ramalingam Pillai, 1995 Supp. (3) SCC 107 (Para 3 ). High Court's decision on a plea not raised before tribunal, not sustainable, or KS Chauhan (Dr.) v. State of U. P. , 1995 Supp (3) SCC 688 (paras 3 and 4); Haryana Urban Development Authority v. Roochira Ceramics, (1996) 6 SCC 584 (para 4); Commissioner of Income Tax, Lucknow v. U. P. Forest Corporation, (1998) 3 SCC 530 (13): AIR 1998 SC 1125; Munnalal Agrawal v. Jagdish Narain, (2000) 1 SCC 31 (7 ). 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. Rattanll Sharma v. Managing Committee, Dr. Hari Ram (Co-education) Higher Secondary, (1993 ). 4 SCC 10: AIR 1993 SC 2155.
(3.) 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. 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: (i) the petitioner would have withdrawn his application; (ii) transferred the property in favour the company; (iii) thereafter would have filed the application on behalf of the Company.;