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SMT. SHASHI BALA PATHAK versus DISTRICT JUDGE & OTHERS

High Court of Judicature at Allahabad

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Smt. Shashi Bala Pathak v. District Judge & Others - WRIT - A No. 44913 of 2000 [2005] RD-AH 454 (18 February 2005)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Reserved

Civil Misc.Writ Petition No.44913 of 2000

Smt. Shashi Bala Pathak      Vs.              District Judge & others

   .....

Hon'ble Vikram Nath J.

This writ petition has been filed by the landlord for quashing the judgment and orders dated 11.09.2000 and 15.05.1998 passed by the respondent no.1 and 2 whereby the application of the petitioner 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) has been rejected and the appeal against the same has also been dismissed.

The dispute relates to house No. 51/1 Ganesh Bazar Jhansi which is in occupation of the petitioner and the respondent no.3. The petitioner purchased the said house by means of registered sale deed dated 23.07.1980 after giving the necessary notice. The petitioner filed the application under section 21(1)(a) of the Act setting up a need for residential use for herself and her other family members, on the ground that the existing accommodation with her was not sufficient. It was also mentioned in the release application that the tenant respondent no.3 had purchased/ acquired another accommodation in the Municipal limits of Jhansi being house no.509 Nanak Ganj, Sipari Bazar Jhansi where he and his other family members can easily live.

The respondent no.3 contested the release application and alleged that the petitioner had not given the correct details of the accommodation available with her. She had mentioned only three rooms in her occupation whereas actually she had six rooms in her possession and the accommodation available with her was sufficient for the need of herself and family members. The release application had been filed malafide and is liable to be dismissed. The tenant further alleged in the written statement that the house no. 509 Nanak Ganj Sipari Bazar Jhansi was purchased by his son Ajai Srivastava and that he along with his wife was living in the said accommodation after his marriage as the relationship between mother-in-law and daughter-in-law was not very cordial.

A commission was also issued by the Prescribed Authority to examine and report to the extent of accommodation available with the landlady petitioner. The commissioner submitted his report dated 12.03.1997 in which it was reported that landlady had in her possession three rooms one kitchen, one Pooja room on the ground floor and one room on the first floor which has thatched roof and the other is in a dilapidated condition. The Prescribed Authority has held that explanation to Section 21(1) of the Act was attracted, as the tenant had not disputed the fact of acquiring accommodation in the same municipality. However, he held that the petitioner landlady could not get benefit of release on account of the fact that she already had sufficient accommodation in her possession and there was no need for any further accommodation. The petitioner filed an appeal, which was registered as Rent Control Appeal No. 24 of 1998 the same has also been dismissed by the appellate authority vide judgment dated 11.09.2000 affirming the finding of the Prescribed Authority. Aggrieved by the same the present writ petition has been filed.

I have heard Miss Pooja Agarwal learned counsel for the petitioner and Sri P.K. Srivastava, learned counsel for the respondent.

Counsel for the petitioner has contended that once the explanation to Section 21(1) of the Act was attracted, the tenant could not be heard and it was only the petitioner landlady whose applications setting up need was to be examined. There was no question of considering the objection of the tenant and/ or comparing any hardship with the tenant. The family of the landlady was alleged to have seven members, which included the landlady, her husband, two sons, her mother-in-law, her mother and one daughter. It was also alleged that the landlady was teaching in school and her husband was working in Railway, they have social status in the society and they required to live in a decent manner. The three rooms were not sufficient for their living. Even the Commissioner in his report had mentioned of only three rooms on the ground floor, along with one kitchen and Pooja room and two rooms in a dilapidated condition on the first floor. Both the courts below have proceeded on the assumption that since the size of the kitchen and pooja room was very big, therefore, the landlady ought to have used them as bed rooms for her married son and other children. The other reasoning given by the courts below that the landlady ought to have got the room in dilapidated condition repaired and should have used them rather than evict the tenant from the premises and release it in favour of the landlady. The contention of counsel for the petitioner is that reasoning given by both the courts below cannot be sustained as it proceeds on assumption and direction to make construction and major repairs of two rooms, which were reported to be in dilapidated conditions.

On the other hand, the counsel for the respondent has urged that the petitioner landlady had never set up a case of any room being in a dilapidated condition and therefore, it was not open to the landlady to allege that two rooms were in dilapidated condition. It was next urged by the counsel for the respondent that the Commissioner report was not correct and his observations/ remarks regarding two rooms being in dilapidated condition were contrary to the actual status. It was alleged that none of the rooms were in a dilapidated condition.

I have considered the rival submissions made by the counsels for the parties and have also examined the record. Firstly in my view once the tenant was covered by the explanation of Section 21(1) of the Act his right to object to the release application is finished. Therefore, the contention of the tenant that the house acquired by him was in occupation of his son and daughter-in-law and he could not go to reside there, cannot be taken into consideration.

It is true that even in case where the explanation to Section 21(1) of the Act is attracted the landlady has to establish bonafide need in order to get the premises release. In the present case, the landlady has set up a need for seven persons existing in her family and for these seven persons the need should have been examined by the Prescribed Authority. From a perusal of the report of the Commissioner only three rooms were available with the landlady, which were worth living. The kitchen, pooja room and the room on the first floor which was in a dilapidated condition cannot be said to be worth living or fit for habitation. The observations of the courts below directing the landlady to get the rooms repaired, which required major/ substantial repair work is also not warranted. In order to accommodate the tenant who has already existing alternative accommodation, direction to the landlady/ landlord to make construction for her need would be unjust, unfair and unreasonable.

In view of the facts and circumstances in my opinion, the release application of the landlady deserves to be allowed and tenant should have been directed to vacate the premises. Looking to the large number of members of the family of the landlady residing in the house with herand also the fact that almost 10 years have passed since the release application was filed the family must have grown up and the need must have been increased, it would be appropriate that the release application be allowed holding the need of the landlady to be genuine and bonafide and pressing.

In the facts and circumstances of the case, the writ petition is allowed and the impugned judgment of the Prescribed Authority and the Appellate Authority dated 15.05.1998 and 11.09.2000 are set aside and the release application of the petitioner is allowed. The respondent tenant is allowed three months time to vacate the premises in dispute and handover the possession to the landlady.

Dated:18.2.2005

Hsc/


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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