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RAM KUMAR SINGH versus IIIRD. A.D.J. & OTHERS

High Court of Judicature at Allahabad

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Ram Kumar Singh v. Iiird. A.D.J. & Others - WRIT - A No. 3187 of 1998 [2006] RD-AH 19824 (22 November 2006)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No.7

Civil Misc. Writ Petition No. 3187 of 1998

Ram Kumar  

Vs.

III Additional District Judge and others  

Hon. Sanjay Misra, J.

Heard Sri M.D.Singh Shekhar, learned counsel for the petitioner and Smt. Usha Singh, learned counsel appearing on behalf of the respondents.

By means of this writ petition the petitioner seeks to challenge the judgment and order dated 21.11.1997 passed in Rent Appeal no.22 of 1994 by the Additional District Judge, Kanpur Nagar.

The facts of the case as brought on record are that  the respondent landlord had filed an application u/s21(1)(a) of U.P. Act No.13 of 1972 for the release of two rooms, which were in possession of the petitioner tenant, on the ground of  his personal need. The prescribed authority rejected the application  of the respondent landlord whereafter the appeal filed by the landlord   has been allowed  by the appellate court.

Learned counsel for the petitioner has contended that during the pendency of appeal the appellate court issued a commission and obtained a report on the extent of the accommodation in premises in question. The report of the commissioner indicated one room in the occupation of the landlord was in a dilapidated condition and it is not in a condition   where any one can live. It was  found that  the landlord was  in possession of four rooms on the ground floor. One room has been  converted into a shop. Another room is a store for articles of the shop, one room is being used as a place of worship and one room is being used as kitchen cum store. He is also in possession of a courtyard and a covered space which is a passage  leading to the

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rooms which are interconnected.  On the first floor the landlord is in possession of  one room, one store, one bath room and one tin shed. The room and store are being  used for sewing business. Three rooms and one kitchen are in possession of another tenant. Two other rooms were earlier occupied by  tenants but they were in a dilapidated condition hence after the tenants vacated them they have fallen down. The appellate court found the need of the landlord tobe bonafide since he has eight members in his family and they have no room to live in therefore  his requirement of two more rooms was genuine. It also found that the landlord had been in government service and had retired  in 1991 as such he was entitled  for release of the two rooms in his own house which is in possession of the petitioner tenant. It is also submitted that  the findings recorded by the appellate court are based on a misreading of the commissioner's  report. Two rooms which were vacated by other  tenants  were demolished  by the landlord only for the purpose of this case and to make out grounds for evicting the petitioner.  He has submitted that he had made  efforts for an alternative accommodation and  was allotted a house No.719C Barra, Kanpur in 1985 but due to his weak financial condition he had to forego the same and it was allotted  by Kanpur Development Authority to some other person. As such the petitioner  has no other accommodation  where he can shift his residence.  Hence  the comparative hardship was more to the petitioner than the landlord in case the rooms were released. He further submits that the prescribed authority had rejected the application of the landlord and the appellate court has illegally allowed the application without considering the  comparative hardship  between  the parties.  He has also argued that two rooms on the ground floor in occupation of two tenants namely Chotte Lal and Rama  Kant have been vacated on 21.1.1994 whereas

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the release application was filed in 1990 as such the need of the landlord stood satisfied during pendency of these proceedings.

Learned counsel for the respondent has contended that the landlord has got eight members in his family and requires the two rooms for their residence. Two rooms have fallen down and  due to paucity of  funds the landlord can not make new constructions. His need has been found  bonafide hence he is entitled  for release  of the said room.

The contention of the petitioner that the landlord  had demolished two rooms is not borne out from the record. On the other hand the tenant  has no alternative accommodation inspite of  his having made efforts is established. The prescribed authority had rejected the application of the landlord  whereas the appellate court  has allowed the application after recording that  the need of the landlord  was bonafide. The appellate court has not considered  that the members in the tenants family were nine and they had two rooms in their occupation. The court was required to consider the factor given in Rule 16(1)(a) of the rules framed under the Act and in the facts of this case it had to construe strictly  the fact whether the landlord had adequate and reasonably  suitable accommodation keeping in mind the number of members in his family.  It was also required  to consider the factor of part release as provided in Rule 16(1)(d).

In so far as the bonafide need of the landlord is concerned the landlord had retired from government service in 1991 therefore his requirement  for additional residential accommodation was to be considered liberally and the finding of the appellate court to such effect  cannot be faulted. However, the other factors  as provided in Rule 16(1)(a) and 16(1)(d) also required  consideration on the facts and circumstances of this case.  Therefore,  while upholding the finding of the appellate court on the issue of bonafide need the matter is remitted to the appellate court  to reconsider the factors provided in

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Rule 16(1)(a) and 16(1)(d) in their application to the facts and circumstances of the present case.  The impugned order is therefore set aside to the extent where it has allowed the release application without considering the said factors only.

The writ petition is allowed as above. No order is passed as to costs.

22.11.06

Gc.


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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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