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Rameshwar Prasad Tandon v. A.D.J., Kanpur Nagar And Others - WRIT - A No. 3195 of 1996  RD-AH 10965 (2 July 2007)
RESERVEDCivil Misc. Writ Petition No. 3195 of 1996
Rameshwar Prasad Tandon Vs. XIth A.D.J. and others.
Hon'ble Prakash Krishna, J.
This writ petition is directed against the judgement and order dated 22nd of December, 1995 passed by the IXth Additional district Judge, Kanpur Nagar in rent Appeal No.239 of 1991 whereby it has allowed the appeal filed by the landlord under section 22 of the U.P. Urban Building (Regulation of Letting, Rent and Eviction) act, 1972 and allowed the release application filed under section 21 (1) (a) thereof in respect of a one room accommodation and a Chabutara on ground floor of property no. F- 36 Shanti Nagar, P.S. Rail Bazar Chhaoni, Kanpur.
The landlady, respondent no.2 herein filed a release application numbered as case no.43 of 1994 against her tenant petitioner herein on the allegations that she has purchased the disputed property by means of a registered sale deed dated 5th of February, 1981 for her own residence and the residence of her family members. The tenant is utilizing the disputed accommodation for the purposes of parking his cycle as he is residing along with his family members in the adjoining accommodation being municipal no. F-37, Shanti Nagar on the first floor along with his son and daughter. The husband of landlady is a M.B.B.S. doctor whose clinic is situate at Moti Mohal about a half kilometre away from the property in question. He has earned a good reputation as a doctor. Her father in law namely Shri Rameshwar Prasad is aged about 60 years and mother in law is aged about 57 years have difficulties in climbing the stairs because of their old age and ailments with which they are suffering. The father in law is already a heart patient and the mother in law is suffering with diabetes. The room in question which is situate on the ground floor is bonafidely needed for their residence as the landlady is presently residing along with her family members on the first floor thereof. It was registered as Rent Case No.43 of 1384 and was filed on 26th of March, 1984.
The said release application was contested on the pleas inter alia that the parents in law of the landlady are residing at their ancestral house and they are not members of her family as per definition given in U.P. Act No.13 of 1972. Consequently, their need cannot be considered as need of the landlady under section 21 of the Act. The landlady has sufficient accommodation in her occupation in the premises No. F-36 Shanti Nagar and she does not require additional accommodation. However, the tenant petitioner expressed his readiness to exchange with one room on the first floor vide para 20 of the written statement.
During the pendency of the release application, an application was filed by the landlady vide annexure - 5 to the writ petition wherein it was stated by her that her husband has purchased a new Maruti Van for use of the members of family bearing registration No. U.P. 7/3413 and there is no garage for the said newly purchased car and it is being parked in open area in front of the house. It is causing damage to the car and the car is also unsafe. It was further stated in the said application that the ceiling of the disputed room in possession of the petitioner tenant is about 15' in height and the floor is also 1/2' above the ground level. She will make necessary alteration in the said room by lowering down the floor and constructing Duchhatti so that Duchhatti may be used for the need already set up and there will also be provision for garage. The said application is dated 2nd of April, 1990. It was supported by an affidavit. In response thereof the petitioner filed his affidavit stating that residents of locality are parking their cars in front of their houses and the such parking in open is not unsafe nor it has caused any damage to any car. There is a guard who looks after all the cars and other vehicles of the locality. The height of the room in question according to the petitioner is only 14' and no such alteration as proposed by the landlady can take place unless a map is got sanctioned and prayed that the said application dated 2nd of April, 1990 be rejected vide Annexure - 8 to the writ petition.
The parties led evidence in support of their respective cases by filing affidavits and documents in support thereof. The Prescribed Authority rejected the release application on the ground that alleged illness of in-laws of the landlady is not established by filing relevant documentary evidence and that she has already got 8 rooms in a vacant state and has built five rooms at Gandhinagar on the ground floor where she can park her car. The said order has been set aside in rent appeal no.239 of 1991 by the IXth Additional District Judge, Kanpur, on 2nd of December, 1995, after reversing the findings recorded by the Prescribed Authority. Challenging the legality and validity of the appellate judgement the present writ petition is at the instance of the tenant.
Heard Shri Some Narain Mishra, the learned counsel for the petitioner and Shri Atul Dayal, learned counsel for the contesting respondent no.2. The main thrust of the argument of the learned counsel for the petitioner is that the appellate court has committed illegality in holding that the need of the respondent landlady is bonafide and genuine and that she will suffer greater hardship in case the release application is not allowed. It was argued that the landlady is owning number of properties detailed in para 34 of the writ petition. The appellate court has also failed to consider the offer made by the petitioner tenant that he is prepared to vacate the disputed accommodation provided an alternative accommodation on the first floor of the disputed building is given to him in its exchange. The need for garage could not have been considered as the release application was not got amended. In response the learned counsel for the respondent landlady has supported the impugned order.
The leaned counsel for the petitioner argued the writ petition with reference to para 34 thereof wherein the petitioner has given details of five properties which according to him are owned by the landlady respondent. They are as follows:-
(i) Complete first floor consisting of four rooms, at F-36 Shanti Nagar, Cantt, Kanpur.
(ii) Complete second floor of F - 36, Shanti Nagar, Cantt. Kanpur.
(iii) A big clinic in the name of Upkar Nursing Home consisting of five rooms and two shops at Shiva Katra and further two rooms on the back side of the shop along with garage.
(iv) Three rooms which were occupied by respondent no.2 during the pendency of the appeal vacated by Sri Vishwanath Kapoor.
(v) A full-fledged dispensary at Phoolaganj near Moti Mohal, Kanpur.
I take up the property no.(i) first. It is not in dispute that the landlady along with her husband and other family members are residing on the first floor of property no. F-36 Shanti Nagar. The disputed room is on the ground floor of this property. The first floor, according to the own showing of the petitioner consists of only 4 rooms. It may be noted here that in the written statement/reply to the release application it was pleaded by the petitioner that the landlady respondent is living in eight rooms accommodation which obviously according to the own showing of the petitioner is incorrect vide para 16 of the writ petition. The consistent case of the respondent landlady is that she has got only three rooms in her possession on the first floor of the said building. Out of 3 rooms two rooms are one after the other and passage for another room goes through the first room and as such one room is being practically used as passage and because of the passage the front room has lost its utility as a room. The landlady with her spouse and three children are somehow managing her affairs in the total accommodation available on the first floor. In support thereof an affidavit was filed before the Prescribed Authority. The landlady in her affidavit dated 27th of October, 1984 has stated that besides her mother in law and father in law, she has got one daughter Radha aged about 12 years studying at that time in standard sixth, son Rohit aged about 8 years and was studying in class three and another son Ranjan aged about 6 years studying in first standard. Her family, thus, consists of seven members including the parent in laws. There is no denial to this effect except that the in laws do not come within the definition of family members of the landlady as defined in the Act. It may be taken note of the fact that by now 13 years have passed away and all the issues of the landlady namely daughter and sons must have become major. It is not in dispute that the landlady has got no other residential accommodation except the property no. F-36 wherein she is having three rooms at the most. Looking to the fact that her husband is a doctor of some repute and she has got three major issues, assuming for a moment that the parent in laws are excluded, it cannot be said that the landlady has presently got sufficient accommodation to lead a descent life. By no stretch of imagination her need for additional residential accommodation can be said to be tainted with any malafide.
Now I take up the property at serial No. (ii). It is with regard to the second floor of the said building. Indisputably the second floor of the said building is being used by the landlady for commercial purposes wherein business of manufacturing medicines in the name and style of M/s. Swastik Enterprizes is being carried on. In this regard, copies of the sales tax assessments for the year 1984-85 and 1985-86 were produced before the court below and necessary averments have been made in para 21 of the counter affidavit which have not been denied in the rejoinder affidavit specifically. The petitioner stated only this much in reply that now the said commercial activities have come to an end but in absence of any corroborative evidence it is difficult to believe and accept the same.
So far as the property at serial no. (iii) is concerned it is obviously a clinic in the name of Upkar Nursing Home at Shiv Katra. The said clinic, by no stretch of imagination, can be used for residential purposes of the landlady or her family members. The said building is being used for non residential purposes and cannot be taken into account while considering the need of the landlady for residential purposes. The alternative accommodation whether is suitable or not is to be examined from the point of view of the landlady and no tenant can direct or suggest a landlord to take the alternative accommodation if the said alternative accommodation is not suitable from the point of view of the landlord.
With regard to the property at serial no. (iv) the appellate court has recorded a finding that the release of the accommodation in possession of V.N. Kapoor was sought for a different purpose i.e. for the purpose of opening clinic required by her husband who is M.B.B.S. doctor and that need stands satisfied after getting the accommodation released from Shri V.N. Kapoor. It has not been stated by the learned counsel for the petitioner that the landlady is not using the said accommodation for the purposes of clinic of her husband (Doctor by profession). Since release was sought on a different ground, the accommodation, thus, vacated by V.N. Kapoor cannot be taken into consideration for considering the present need of the landlady. The accommodation, vacated by V.N. Kapoor is being used as a clinic for attending the patients who come to the doctor's residence for consultation. It is not the case of the petitioner that the said accommodation is not being used as such, and therefore, it follows that it is not available to the landlady for any purpose.
In view of the above discussion, it is found that the properties at serial no.(i), (ii), (iii) and (iv) are not sufficient to satisfy the bonafide need of the landlady.
The property at serial No.(v) was a rented property at Phool Ganj near Moti Mahol. The said property has been vacated and is no more in occupation or possession of the landlady or her husband.
In the factual background of the case, as found above and taking into consideration that the release application was filed about 23 years before and by the passage of time the children of landlady have now grown up and all have become major. The landlady has three rooms at her disposal for residential purposes on the first floor of property No. F-36, Shanti Nagar and has got no other residential accommodation. In the totality of facts and circumstances of the case and keeping in view that the husband of the landlady is a M.B.B.S. doctor and from the record it is clear that he is a good medical practitioner, question arises as to whether the landlady's need for additional accommodation is bonafide and genuine or not.
In Sarla Ahuja V. United India Insurance Co. Ltd. (1996) 5 SCC 353 it has been held that the rent Controller should not proceed on the assumption that the landlord's requirement is not bona fide. When the landlord shows a prima facie case a presumption that the requirement of the landlord is bona fide is liable to be drawn. It is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without giving possession of the tenanted premises. While deciding the question of bona fides of the requirement of the landlord, it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted himself.
It has been held in the case of Shiv Sarup Gupta Vs. Dr. Mahesh Chandra Gupta (1999) 6 SCC 222 that convenience and safety of landlord and his family members would be relevant factors. While considering the totality of circumstance, the court may keeping in view the profession and vocation of the landlord and his family members, their style of living, habits and social background wherefrom they come. If a landlord wishes to live with comfort in a house of his own, the law does not command or compel him to squeeze himself tightly into lesser premises protecting the tenant's occupancy.
In M.L. Prabhakar Vs. Rajiv Singhal 2001 (1) ARC 382 the Apex Court has followed its judgement pronounced in Shiv Sarup Gupta's case.
Ragavendra Kumar vs. Firm Prem Machinery & Company (2000) 1 SCC 679 is an authority for the proposition that the landlord is the best judge of his own requirement for residential or commercial purpose and has complete freedom in the matter. In this authority the Apex Court has relied upon its earlier judgment in Prativa Devi Vs. T.V. Krishnan (1996) 5 SCC 353.
In Joginder Pal Vs. Naval Kishore Behal, (2002) 5 SCC 397, the Apex Court with a reference to the provisions of East Punjab Urban Rent Restriction Act, on the question of bonafide need, after surveying its earlier pronouncements, has held that the requirement of a major son and a coparcener in a joint Hindu family intending to start a business is the requirement of the landlord himself as was held in B. Balaiah Vs. Chandoor Lachaiah, AIR 1965 AP 435. The words "for his own use" must receive a wide, liberal and useful meaning rather than a strict or narrow construction. It has been further held that while casting its judicial verdict, the Court shall adopt a practical and meaningful approach guided by the realities of life.
The learned counsel for the petitioner has placed reliance upon a judgement of the Apex Court in Deena Nath Vs. Pooranmal 2001 SCFBRC 397. In this case also, the Supreme Court has followed its earlier decision in the case of Shiv Sarup Gupta wherein it has been held that term "bonafide" or "genuinely" refers to the state of mind. Paragraph 16 of the said judgement is reproduced below:-
"16. In this connection, we may refer to the decision of this Court in the case of Shiv Sarup Gupta v. Dr. Mahesh Chand Gupta, (1999) 6 SCC 222: 1999 SCFBRC 330, in which it was held, inter alia, that "the term - bonafide or 'genuinely' refers to a state of mind. Requirement is not a mere desire. The degree of intensity contemplated by "requires" is much higher than in mere desire. The phrase "required bonafide" is suggestive of legislative intent that a mere desire which is the outcome of whim or fancy is not taken note of by the rent control legislation. A requirement in the sense of felt need which is an outcome of a sincere, honest desire, in contradistinction with a mere pretence or pretext to evict a tenant, on the part of the landlord claiming to occupy the premises for himself or for any member of the family would entitle him to seek ejectment of the tenant". Therein it was further held : "the High Court in revision is obliged to test the order of the rent Controller on the touch-stone of "whether it is according to law". For that limited purpose it may enter into reappraisal of evidence that is for the purpose of ascertaining whether the conclusion arrived at by the rent Controller is wholly unreasonable or is one that no reasonable person acting with objectivity could have reached on the material available."
In the above case it was held that bonafide requirement must be in presenti and must be manifested in actual need which would evidence in the court that it is not mere fanciful or whimsical desire.
Indisputably, in the case on hand the landlady has got three rooms in her occupation for residential purposes and her family consists of excluding her parents in law for the moment, her husband and three grown up adult children (one daughter and two sons). Nobody can deny that these children need besides a separate sleeping room so far as daughter is concerned study room also. Looking to the status and position of the landlady, the need for drawing room, living room and garage, cannot be said to be mala fide or not bonafide need.
The learned counsel for the petitioner though not referred during the course of argument the other judgements but has filed photostat copies thereof along with written arguments. No permission was sought by him nor was permitted to file written arguments. In the written argument he has referred the following cases which may be noted only for the proposition that it is duty of appellate court while reversing the judgement of the Prescribed authority to consider the reasoning recorded by the Prescribed Authority.
1.Gyan Chand (deceased) Vs. Addl. District Judge Badaun 1996 (2) ARC 479
2.Heera Lal Agrawal Vs. Second Addl. District Judge 2000(2) ARC 703
3.Shanti Lal Kesarmal Gandhi Vs. Prabhakar Bal Krishna Mahanubhav (2007) 2 SCC 619.
There cannot be any quarrel to the above proposition of law. But in the case on hand the learned counsel for the petitioner has failed to point out as to which finding recorded by the Prescribed Authority was not considered by the appellate court while delivering the judgement of reversal.
Now, taking the second point, that the release application was not got amended for the need of garage, it will not detain us any long. The proceedings under the Act are summary in nature and the technical rules of Code of Civil Procedure relating to the pleadings are not applicable in these proceedings. Only certain provisions of Code of Civil Procedure have been made applicable. The application already referred to above was filed by the landlady before the Prescribed Authority and during the pendency of the release application she filed an application bringing on the record that her husband has purchased a new car and she needs accommodation for garage also. An opportunity was given by the Prescribed Authority to file counter affidavit and as a matter of fact it was availed and the counter affidavit vide annexure -8 to the writ petition was filed by the petitioner. The matter was heard on merits by the Prescribed Authority. It does not appear from the order of the Prescribed Authority that any such objection that unless a formal application for amendment is filed, plea regarding garage cannot be raised, was raised before it by the present petitioner tenant. Even otherwise also, the said plea of the landlady cannot be foreclosed for the simple reason that it has not caused any prejudice in any manner to the petitioner. The petitioner tenant was made aware about the said need of the landlady and he was afforded an opportunity to meet the said contention by filing its response which he actually did. Therefore, it cannot be said nor it was argued that the petitioner tenant was taken by surprise. The objection raised by the petitioner in this regard is more in the nature of technical objection which does not go to the root of the matter and no such objection appears to have been taken during the course of argument before the Prescribed Authority. It will not serve the interest of justice if the said objection is permitted to prevail. It will be not be out of place to mention here that the Prescribed Authority in its order dated 24.10.1991 on page 117 of the paper book has stated that the landlady through an amendment application sought to raise the plea that she has purchased a Maruti Van and accommodation for garage purposes is needed.
It is not out of place to notice a decision of the Apex Court in Kailash Chand and another Vs. Dharam Das (2005) SCC 735 wherein it has been held with reference to H.P. Urban Rent Control Act that life is not static and so the law cannot afford to be static. While interpreting the Rent Control Legislation, a pragmatic approach is needed and ground realities of life should not be ignored. it was held that in relation to the question of bonafide need of landlord the phrases such as "his own occupation", for his own use", "for occupation by himself" should not be interpreted by assigning a narrow meaning. These phrases include requirements of the members of the family of landlord and those dependants to him. Regard should be had to the social religious milieu prevalent in a particular section of society or region.
The learned counsel for the respondent landlady has relied upon Radhey Shyam Vs. 5th Additional District Judge, 1988 (2) ARC 484 wherein it has been held by this Court that need of a landlord who happens to be a leading doctor paying income tax for garage for keeping his car is bonafide need.
The case of the landlady is that the disputed room is not being actually utilised as such by the petitioner as the petitioner is residing on the first floor of another building bearing municipal No. F-37, Shanti Nagar along with his family members and while the accommodation in question is one room accommodation on the ground floor of another building F-36, the said accommodation is being used by the petitioner for miscellaneous purposes i.e. parking of his cycle.
In reply, it has been stated by the petitioner in para 4 of the written statement that the disputed room is being used as a study cum sleeping room and for keeping cycle. Additionally, the tenant carries on the business of glass sheets and a government contractor and supplier and therefore some goods relating to the aforesaid business are always stored in the portion of the said room. It was denied by the landlady that the petitioner tenant is doing any business of glass sheets or is a government contractor or is in any manner engaged in supply work. There is no material on record to show that the petitioner is engaged in any such kind of work.
In this factual background the argument made by the petitioner that he is prepared to vacate the disputed accommodation if another accommodation on second floor is offered in exchange thereof by the landlady, is of no much relevance. The landlady herself is confined with five members in three rooms accommodation on the first floor. It will disturb her privacy.
A feeble attempt was made by the petitioner to show that the appellate court has failed to take into account the rejoinder affidavit filed as annexure - 7 to the writ petition. The said argument has no merit as no such grievance has been raised in the writ petition and the petitioner cannot be permitted to raise a new point not taken in the petition.
Now coming to the question of comparative hardship, the learned counsel for the petitioner could not point out any illegality or perversity in the finding recorded by the appellate court on this issue. I have also considered this point independently and of the opinion that on the facts of the present case, the landlady would suffer greater hardship in case her release application is rejected. Evidently, the petitioner tenant is using the disputed room for storage purposes and is keeping therein the old and discarded material and practically the said room is not being used for living purposes. In this regard, the landlady's case from the very beginning is that the room in question is being used for parking cycle. The landlady, on the other hand, is wife of a medical practitioner who has got grown up children, one daughter and two sons. All of them are confined in three rooms accommodation on the first floor. Initially the landlady's husband had a clinic at Moti Mohal which was one room accommodation and subsequently as his practice grew, the husband got constructed a clinic consisting of five rooms at Shiv Katra. Her husband has also purchased a car during the pendency of the release application. There is no denial of the fact by the petitioner tenant that there is no garage facility in the residential building and the same is being parked in front of the house which is unsafe and there is every likelihood that the car may be damaged. A suggestion has been made by the petitioner that the said car may be parked at the clinic of the husband of the landlady at Shiv Katra. It is not open to the tenant to give any suggestion as to how else the landlady may carry on his affairs. A car to a doctor, even to other professionals, is not a luxury nowadays. But, it is essential for transport. Doctor, particularly a private doctor, needs a car for fast movement not only to attend the emergency cases and to visit the patients at their residence but needs it for to and fro between residence to clinic. Even otherwise, nowadays car is necessary for a comfortable living and and a landlord cannot be asked to sacrifice his comfort to save a tenant from eviction specially when the said tenant is not using the disputed accommodation for any useful purposes and is using it for parking cycle etc. It is evident that the room in question which is part of residential building is not being used by the tenant for residence.
In this view of the matter, the petitioner shall not suffer any hardship in case release application is allowed.
Before parting with the case, it may be noted that the learned counsel for the petitioner without obtaining any leave from the court has filed written arguments. In the said written argument it is disgusting to note that some factual aspects which were not urged, have been raised. Particularly paras 6 and 7 wherein it has been mentioned that the mother in law has expired in October, 1992. This fact was not pointed out nor any such argument was raised at the time of hearing of the writ petition. While preparing the judgement I had occasion to go through the written argument. In para 32 of the writ petition it is stated that the amendment application bringing the fact on record that mother in law has expired, was filed before the appellate court but there is no averment as to what happened to the said application. Also there is no averment in the entire writ petition that this point was pressed before the court below at the time of hearing of the appeal or was brought to the notice of the court. In absence of any such averment, it is difficult to accept that this fact that the mother in law of the landlady has expired was brought to the notice of the appellate court. The law in this regard is well settled; if a person wants to contradict a statement made in a judgement or some argument has been left from consideration, the proper course is to file an application immediately before the court concerned pointing out the omission occurred in the judgement. The petitioner obviously has failed to take the recourse of the said procedure. The writ petition appears to have been very cleverly drafted in as much as only this much has been stated in para 32 thereof that an application for amendment that the mother in law of the respondent no.2 has expired, was filed. Without making any allegation that the said fact was brought to the notice of the appellate court at the time of hearing of the appeal. Nor any affidavit of the counsel who argued the appeal is filed to show that any such plea was raised before the court below. Apart from above, it is not in dispute that the father in law is still alive and he must be of considerable age now as the release application was filed in the year 1984. The petitioner in para 6 of the written statement estimated the age of the father in law of the landlady as 55 years in the year 1984. Old age itself is illness and it is desire of every parent and also of a son to live together specially at the fag end of life of old ageing father when such a father has lost his best companion of life i.e. wife. It is also a common feature in the society to purchase property by males in the name of their wives and technicalities apart for all practical purposes the husband of landlady wants to keep his father which as held by the Apex Court in various judgements already produced above comes within the phrase of " for occupation by himself or any member of his family" used in section 21 (1) (a) of U.P. Act No.13 of 1972.
No attempt was made by the petitioner tenant to find out an alternative accommodation. In this factual back grounds the plea that he will suffer greater hardship, if the release application is allowed has no legs to stand as held by the Apex Court in Bega Begum and others Vs. Abdul Ahad Khan, 1979 AIR SC 272. Relevant paragraphs 19 and 20 of the report are reproduced below:-
"It is no doubt true that the tenant will have to be ousted from the house if a decree for eviction is passed, but such an event would happen whenever a decree for eviction is passed and was fully in contemplation of the legislature when Section 11 (1) (h) was introduced in the Act. This by itself would not be a valid ground for refusing the plaintiffs a decree for eviction. (Para 19)
In deciding the extent of the hardship that may be caused to one party or the other, in case a decree for eviction is passed or is refused, each party has to prove its relative advantages or disadvantages and the entire onus cannot be thrown on the plaintiffs to prove that lesser disadvantages will be suffered by the defendants and that they were remediable. 1969 UJ (SC) 432; AIR 1974 SC 1059; (1947) 1 All ER 810 and AIR 1965 Andh Pra 435, Rel. on." (Para 20)
The aforesaid principle has been reiterated in AIR 2003 SC 2713 Badrinarayan Chunilal Bhutada V. Govindram Ramgopal Mundada.
Viewed from any angle there is no error either of law or fact in the impugned order of the court below. The appellate court has taken a correct view of law and fact and no interference by this court under Article 226 of the Constitution of India is called for. There is no merit in the writ petition. The writ petition is dismissed.
Time to vacate the disputed premises is granted up to 31st of August, 2007 provided the petitioner files an usual undertaking on affidavit before the Prescribed Authority on or before 20th of July, 2007 that he will vacate the disputed premises on or before the time granted by this Court and shall hand over peaceful vacant possession of the disputed accommodation to the landlady without creating any third party interest. In case of failure to file undertaking as stipulated above it shall be open to the landlady to execute the release order.
The writ petition is dismissed with costs of Rs.3,000/- (Rupees Three Thousands only).
Dt. (Prakash Krishna, J)
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