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Praveen Kumar v. Sri Brij Bhushan Sharma And Others - WRIT - A No. 61923 of 2006  RD-AH 3564 (1 March 2007)
Hon'ble Mr. Rakesh Tiwari, J.
This is landlord's petition. petitioner-landlord has challenged the validity and correctness of judgment and order dated 4.10.2006 (appended as Annexures 1 to the writ petition) passed by Additional District Judge, Court no.7, Varanasi in Rent Appeal No. 241 of 2004.
The dispute giving rise to the instant writ petition relates to accommodation under the tenancy of the respondents consisting of three rooms, kitchen, varandah (Angan),, laterine/bathroom situated on the ground floor of premises no.57/49-D-5, Mohalla- Maulvibag, Sigra, district Varanasi..
Petitioner-landlord moved release application under Section 21(1)(a) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as ''the Act'), which was registered as case no. 60 of 2002 for eviction of the respondent-tenant on the ground of his own bona fide and genuine need.
The release application was contested by the respondent-tenant by filing his written statement dated 19.12.2003 denying the plaint allegations and stating that the need of the landlord was sham and fictitious.
After exchange of pleadings, the Prescribed Authority vide judgment dated 25.11.2004 allowed the release application of the petitioner-landlord.
Aggrieved by the judgment dated 25.11.2004 of the Prescribed Authority, the respondent-tenant preferred Rent Appeal No.241 of 2004, which has been allowed by the impugned judgment dated 4.10.2006 passed by Additional District Judge, Court No. 7, Varanasi.
The instant writ petition has been filed by the petitioner-landlord challenging the validity and correctness of the imugned appellate judgment dated 4.10.2006.
Counsel for the petitioner-landlord contended that the finding recorded by the lower appellate Court that the landlord wants to carry on business in the premises in dispute and, therefore, the release application is barred by provision of proviso 3(ii) to Section 21(1) of U.P. Act No. XIII of 1972 is wholly perverse as need of the landlord for an office after his retirement from service as well as need of his wife, three unmarried children for sufficient space is not covered by proviso 3(ii) to Section 21(1) of U.P. Act No. XIII of 1972. The finding of the lower appellate Court on the question of bona fide need of the landlord is perverse, arbitrary and illegal.
Counsel for the petitioner drew attention of the Court to the factum of possession of alternate accommodation by the respondent-tenant at plot no. 5 in the same locality having an area of 7 biswa. The tenant has built two rooms over the said plot and this construction was made even before filing of the release application by the landlord. That apart, the elder son of the tenant has also acquired a flat in plot no. 8 in the same locality; that the wife of the petitioner has also expired in the meantime and that he is living alone in the house. He urged that the test of comparative hardship overwhelmingly tilts in favour of the landlord and lower appellate Court has committed a gross illegality in recording a finding otherwise.
He vehemently contended that the lower appellate Court has wholly misread the evidence in holding that two daughters of the landlord are married and are living outside with their in-laws whereas the hard fact is that both of them are still unmarried. He, therefore, prayed that the judgment of the lower appellate Court may be quashed.
Per contra, counsel for the respondent-tenant contended that there is no dispute about the fact that the tenant is in possession of plot no. 5, which is an open land and two rooms have been constructed but the tenant operates his office of M/s. Luxmi Transport Company from that accommodation. It is not meant for residential purposes. This he submits is evident from the electricity bill, telephone bill and income tax returns having been filed by the tenant before the Courts below. In so far as flat on plot no. 8 is concerned, he urged that son of the tenant Sri Ajay Kumar Sharma occupies the same and he resides there with his family and that he has no concern with the respondent-tenant. He vemently urged that the lower appellate Court has rightly allowed the appeal of the tenant and has recorded clear findings, which is not liable to be interfered in the writ jurisdiction.
He further stated that admittedly, wife of the petitioner-landlord is working as Lecturer at B.H.U. Varanasi and at present is the Dean of Faculty of Performing Arts. His all the three children are not living at Varanasi and have gone out for higher education. Moreover, the petitioner-landlord has not taken the consent of other landlords, i.e., respondent nos. 2 to 5.
Counsel for the respondent-tenant contended that wife of the landlord wants to use the ground floor for the faculty of dancing and this portion of the accommodation in dispute shall be given on rent to the B.H.U, Varanasi as is clear from Minutes of Meeting dated 24.9.2001, appended as Annexure C.A.1 to the counter affidavit.
In support of his aforesaid contentions, counsel for the petitioner relied upon the decisions of Hon'ble the Supreme Court in Pratap Rai Tanwani and another V. Uttam chand and others- 2004(57) ALR -444; Shiv Swarup Gupta V. Dr. Mahesh Chand gupta- 1999(3) A.W.C (2)-106; Dhanna Lal V. Kalawati Bai- 2003 ACJ-38; India Umbrella Mfg. Co. V. B. Agrawal -2004(1) J.T. S.C-200; Rajjit singh V. Ravi Prakash and another-2004(6) SCC-682 and decisions of this Court in Abdul Gappar Khan V. Ist Addl. District Judge, Bulandshahr and another-ARC 1984(1)-293; Sahabuddin V. Mohd. Yameen Quresi-2006(4)AWC-3685 and Swaraj Kumar V. Arvind Kumar-2005(4) AWC-3387.
I have given thoughtful considerations to the respective arguments advanced by counsels for the parties and perused the record.
The aforesaid decisions cited in support of his contention by counsel for the tenant-respondents relates to bona fide need and comparative hardship and there is no two opinion about the law propounded in the said decisions.
In Dhanna Lal's case (supra), it has been held that a co-owner can file a release application only if the other co-owner has given his consent.
In the instant case, contention of counsel for the respondent-tenant that the landlord moved release application without obtaining consent of other co-owners is apparent from the affidavit of Sri Praful Kumar- respondent no. 2 wherein he has expressed his inability to stay at Varanai for shortage of accommodation. On the other hand, the affidavit of Sri Praful Kumar- respondent no. 2, relied upon by the tenant supports the case of the petitioner-landlord. The landlord moved the release application for his bona fide need and the son, in his affidavit, clearly stated that he is unable to stay at Varanasi for want of accommodation. It clearly shows that the need of the landlord is pressing, genuine and bona fide.
So far as contention of counsel for the respondent-tenant that wife of the landlord wants to use the ground floor for the Faculty of Dancing and this portion of the accommodation in dispute shall be given on rent to the B.H.U, Varanasi as is clear from Minutes of Meeting dated 24.9.2001, appended as Annexure C.A.1 to the counter affidavit is concerned, a perusal of Minutes of Meeting dated 24.9.2001 reveals that it was resolved that :
".... the Principal-Investigator be advised to manage rented accommodation and furniture etc. out of the funds provided by the U.G.C as the Faculty is not in a position to provide these facilities."
meaning thereby that the aforesaid resolution nowhere states that wife of the petitioner, Dr. Ranjana Srivastava has given on rent or has given her consent to give on rent ground floor of the accommodation in dispute for Faculty of Dancing of B.H.U, Varanasi.
From the record it is evident that the respondent-tenant is in possession of alternate accommodation and his defence is that the said accommodation is not for residential purposes. Admission about availability of alternate accommodation with the tenant is apparent from perusal of paragraphs 2 and 3 of the Supplementary Counter Affidavit filed by the respondent-tenant, which are quoted below :-
"2. That it is hereby stated that the land at plot no. 5 Mohalla Maulvibagh district Varanasi has only two small rooms of area 18x12 and 8x6 without any facility of latrine, bathroom, and kitchen. The said two rooms are used for the office of M.s. Laxmi Transport Company of which this deponent is the sole proprietor. This deponent has only 1/3 share in the open land of the said plot. The other 1/3 of the said land belongs to the deponent's elder son Ajay Kumar sharma who has no link or concern with this deponent.
3. That the petitioner's elder son Sri Ajay Kumar Sharma is staying in the rented house in flat of plot no. 8 at Maulvibagh Varanasi which consists of two rooms 12x10 and 10x10 plus kitchen and bathroom. The elder son is staying with his wife and two children aged 19 years and 21 years."
Thus, this fact is admitted to the tenant that his son is living separately in another alternate accommodation and his plea is that his son has no concern with him.
The aforesaid plea taken by the tenant that his son has no concern with him cannot be sustained in law in view of the fact that son falls within the definition of ''family' as defined in Section 3(g) of U.P. Act No. XIII of 1972, which is as under :-
"3(g) ''family' in relation to a londlord or tenant of a building, means, his or her
(ii) male lineal descendants,
(iii) such parents, grant-parents and any unmarried or widowed or divorced or judicially separated daughter or daughter of a male-lineal descendant, as may have been normally residing with him or her."
In view of admitted position that a member of the family of tenant has got an alternate accommodation, he cannot be permitted to retain the tenanted accommodation. Moreover, In any case, the admitted fact is that the tenant has got two alternate accommodations in his possession, hence in view of explanation (i) to Section 21(1)(a) of U.P. Act No. XIII of 1972 which provides that even if any of member of tenant's family has acauired an alternate accommodation, the tenant cannot contest the claim of need of the landlord on the ground that there is no bona fide need of the landlord. Explanation (i) to Section 21(1) of the Act No. XIII of 1972 automatically applies to the facts of the instant case, which is as under :-
"Explanation- In the case of a residential building-
(i) where the tenant or any member of his family who has been normally residing with him or is wholly dependent on his has built or has otherwise acquired in a vacant state or has got vacated after acquisition a residential building in the same city, municipality, notified area or town area, no objection by the tenant against an application under this sub-section shall be entertained."
In the circumstance, comparative hardship shall be sufferred by the landlord. The Prescribed Authority rightly allowed the release application of the landlord and the appellate Court has committed a gross illegality in allowing the appeal on the grounds, which are not relevant for the purpose of the controversy involved in the case.
In this regard in Ratan Lal and another V. Prescribed Authority-cum-Munsif Saharanur and others-U.P.R.J-208 on the question of comparative hardship this Court has held that Rule 16(2)(b) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules 1972 clearly prescribes that one of such factors is whether the tenant has available with him an accommodation to which he could shift his business without substantial loss, there shall be greater justification for allowing the application.
In the instant case, it is an admitted fact that the tenant has alternate accommodation available with him. His family is in financially sound condition. The respondent-tenant is himself in business and has admittedly built two houses in which he is running his business. He can easily construct kitchen, latrine and bathroom over the constructed rooms or on the land in his share. The ratio laid down in the aforesaid decision squarely applies to the facts and circumstances of the instant case. If the contention of counsel for the petitioner that two rooms built over plot no. 5 are being used for business purposes and they cannot be used for residential purposes is accepted to be true, even then, the tenant has another alternate accommodation available with him on plot no. 8, where his elder son resides with him family. The tenant can easily shift to that accommodation or can take any other accommodation on rent as there is no legal or financial impediment for him.
This view finds support from the decisions of this Court in Smt. Nathi Bai and others V. The District Judge, Kanpur and others- 1981 ARC-575 Smt. Ramkali V. IVth Addl. District and Sessions Judge, Kanpur and others-1985(2) ARC-385; Chhedi Lal and another V. Vth Addl. District Judge, Kanpur and others-1985(2) ARC-471; Kesari Lal V. IIIrd Addl. District Judge, Meerut and another-1987(2) ARC-49 Sardar Pritam Singh v. IIIrd Addl. District and Sessions Judge, Allahabad another- 1997(1) ARC-104 and Khurseed Begum (Smt.) V. Sri Bashir Ahmad-2007(1) ARC-359.
There is yet another aspect of the case. Even if it is assumed that the need of the tenants is pressing, the fact cannot be overlooked that the release application was filed by the landlord way back in 2002. Almost a period of half decade has passed but the respondent-tenant has made no effort to search out alternate accommodation. Recently, this Court in Salim Khan V. IVth Adl. District Judge, Jhansi and others- 2006(1) ARC-588 relying upon the decision of Hon'ble the Apex Court in Bhutada V. G.R. Mundada- A.I.R. 2003 SC-2713 held that the fact that tenants did not show what efforts they made to search alternate accommodation after filing of release application was sufficient to tilt the balance of hardship against them.
For the reasons stated above, the writ petition succeeds and is allowed. The respondent-tenant shall vacate the accommodation, in dispute, within the time allowed by the Prescribed Authority, failing which, action in accordance with law may be taken by the landlord for getting vacant possession of the accommodation in dispute. No order as to costs.
Dated 1.3. 2007
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