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Mohd. Aslam & Others v. The Xth A.D.J. & Others - WRIT - A No. 16647 of 1991 [2004] RD-AH 1280 (1 November 2004)


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Court No. 26

Civil Misc.Writ Petition No. 16647 of 1991

Mohd.Aslam and others           Vs.   Xth Addl.District Judge and others


Hon'ble Vikram Nath J.

This petition has been filed by the landlord for quashing the judgment and order dated 2.2.1991 passed by Xth Addl. District Judge, Moradabad in Rent Control Appeal No. 50 of 1990, Sri Zafar Jalil and others Vs. Mohd.Aslam and others whereby the appeal was allowed and the judgment and order of the Prescribed Authority dated 8.8.90 was set aside and release application of the petitioner u/s 21(1)(a) of U.P. Act No. 13 of 1972 was rejected. The petitioner is the landlord and owner of premises situate in Mohalla Kaya Ki Berian Machhali Bazar,Moradabad. Hakik Khalil Ahmad father of respondent no.2 to 4 had died on 16/17.10.86 and thereafter the respondents 2 to 4 were continuing as tenant of the petitioner. The house in question is a double storey house , on the ground floor the petitioner was in occupation and on the first floor  there were two tenants.. Municipal Board, Moradabad, was tenant of one part of the first floor and the remaining part of first floor was in possession of the respondents 2 to 4. The family of the petitioners having grown bigger, there was paucity of accommodation and in view of the fact that the respondents 2 to 4 had constructed another house in the same city, the petitioner filed an application for release of the premises in his favour and for use and occupation of his family members. It was registered as P.A. Case No. 19 of 1989. The said application was contested by the respondents 2 to 4. The Prescribed Authority vide judgment dated 8.8.1990 came to the conclusion that the respondents 2 to 4 have acquired another accommodation in the same city, the objection of the respondents 2 to 4 could not be entertained in view of the Explanation (i) of Section 21(1) of the Act. The Prescribed Authority, further found that the need set up by the petitioner was bonafide and accordingly allowed the application. Against the judgment and order dated 8.8.1990 the tenant respondent 2 to 4 filed Rent Control Appeal No. 50 of 1990. The appellate court vide judgment dated 2.2.1991 although confirmed the finding regarding the applicability of the explanation (i) of Section 21(1) of the Act but recorded the findings that the petitioner could not establish bonafide need and accordingly allowed the appeal and set aside the judgment passed by the Prescribed Authority, . Consequently, the application for release filed by the petitioner was also dismissed. It is against the said judgment; the present writ petition has been filed.

I have heard Sri P.K.Singhal, learned counsel for the petitioner and learned Standing Counsel. In so far as respondent no.2 to 4 are concerned they have not put in appearance and they have not filed counter affidavit despite sufficient notice having been served upon them. Despite repeated notice having been sent in the year 1992, 1995 and 1996 they have failed to put in appearance and contest the petition. In the circumstances, this petition is being proceeded exparte against respondent no.2 to 4.

It has been contended by Sri P.K.Singhal learned counsel for the petitioner that the appellate court erred in holding that petitioner had not been able to show the bonafide need for the reasons that the appellate court has illegally and erroneously entered into assessing comparative Hardship with the tenant. The submission is that when once it was held that the explanation (i) of Section 21(1) of the Act had been attracted the tenant having lost his right to file objection or such objection being entertained, there is no justification for discussing or recording the finding of comparative hardship. It was only the need of the petitioner-landlord which was to be seen while considering the application. The discussion and finding regarding comparative hardship is uncalled for. Paragraph 8 of the appellate court judgment deals with the comparative hardship and finding recorded is " in my opinion the tenants would suffer greater hardship if the release application of the landlord is allowed, so on this ground also the appeal deserves to be allowed". Thus the judgment of the lower appellate court stands vitiated.

In so far as the findings of bonafide need of the petitioner is concerned, the petitioner had established that due to the increase of the family members and growing age of the children, the need for the premises in dispute on first floor arose and the existing accommodation was not sufficient. The Prescribed Authority has also recorded the finding on bonafide need in favour of the landlord petitioner. In so far as the accommodation released in favour of the petitioner from Sattar Husain is concerned it was a different building and not in the same building where the petitioner was residing on the ground floor with his family. The whole family living in the same building is also a relevant consideration for the landlord to have the premises vacated. The premises vacated by Sattar Hussain cannot diminish the need of the landlord of the premises in dispute.

In view of the facts and circumstances of the case as stated above, the finding on bonafide need  as recorded by the appellate Court was not correct and the finding recorded by the Prescribed Authority,  appears to be correct and acceptable.

Accordingly, the writ petition succeeds. The order-dated 2.2.1991 passed by respondent no.l is set aside and the judgment of the Prescribed Authority, dated 8.8.1990 is confirmed. No order as to costs.



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