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Habib v. Fatma Begum And Others - WRIT - A No. 6141 of 2006 [2006] RD-AH 9682 (17 May 2006)


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Habib                                                                                  ........Petitioner.


Fatma Begum and others                                                  ....Respondents.


Hon'ble Anjani Kumar, J.

This writ petition filed by the petitioner under Article 226 of the Constitution of India challenged the order passed by the appellate authority under the provisions of U.P. Act No. 13 of 1972 (in short ''the Act') dated 18.11.2005 (Annexure 18 to the writ petition, whereby the appellate authority allowed the appeal filed by the respondent-landlord and set aside the order passed by the prescribed authority under the provisions of the Act and directed for release of the accommodation in dispute in favour of the.

The brief facts leading to filing of the present writ petition are that the case as set up before the prescribed authority and the appellate authority is that the petitioner is the tenant of the accommodation in dispute at the rate of Rs. 5/- per month. Originally the father of the applicant of release application was the landlord who died on 14/15.12.1996 and after the death of Raheem Bux, the present applicant inherited the tenancy and became the landlord. Raheem Bux during his life time has got married two daughters who are living separately with their husbands. It is only one daughter who has not been married and is living with the applicant-landlord. The daughters who are married have surrendered their rights in favour of her brothers and sons of Raheem Bux. The application under Section 21 (1) (a) of 'the Act' has been filed by the landlord on the ground that the house in dispute in which the landlord is residing, does not have sufficient accommodation to accommodate the family members of the landlord and in these circumstances, the case, as set up, they require at least four additional rooms therefore, unless the rooms in possession of the tenant are released in favour of the landlord, the landlord continue with the paucity of the living accommodation. On the other hand, sons of the tenant have already build up the house in the same municipality where they started living and accommodation at the disposal of the landlord is so short that if any visitor comes, it is difficult for landlord to provide suitable place to stay and live. The aforesaid contention of the  landlord has been denied by the  tenant. The  prescribed  authority  accepted  the  contention  raised on


behalf of the tenant and rejected the release application  filed  by  the landlord  on  the  ground  that by  the  order  dated 30.4.1994 (Annexure 14 to the writ petition. Aggrieved by the order passed by the prescribed authority the landlord preferred an appeal before the appellate authority. The appellate authority allowed the appeal by the order dated 30.1.2002 filed by the landlord setting aside the order passed by the prescribed authority and remanded back the matter to the prescribed authority for decision afresh in accordance with the directions issued by the appellate authority. On remand the prescribed authority by the order dated 23.4.2002 rejected the application filed by the landlord. Aggrieved thereby the landlord preferred an appeal. The appellate authority by the impugned order dated 18.11.2005 directed for release of the accommodation in dispute in favour of the landlord.

Learned counsel for the petitioner has submitted that the view taken by the appellate authority with regard to bona fide of the landlord suffers from manifest error which if he is permitted to go through the evidence on record, will demonstrate that the same is perverse. However, learned counsel for the petitioner failed to demonstrate that the findings arrived at by the appellate authority regarding bona fide need of the landlord, is perverse and similar is the position with regard to comparative hardship. The appellate court relied upon the decision of the Apex Court reported in AIR 2003 SC 2713; Badri Narain Chunni Lal Versus Govind Ram arrived at the conclusion that the tilt of the comparative hardship is also in favour of the landlord thus, the findings recorded by the appellate authority with regard to bona fide need and comparative hardship do not warrant any interference in exercise of jurisdiction under Article 226 of the Constitution of India as it has not been demonstrated that the findings recorded by appellate authority is either perverse, or suffer from the manifest error of law.

In this view of the matter, this writ petition has no force and is dismissed.  However, there will be no order as to costs.

Dated: 17.5.2006



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