JUDGMENT S.U. Khan, J.
1. Hari Mohan Kichlu, landlord-petitioner in both the writ petitions filed two release applications under Section 21 of U.P. Rent Control Act (U.P. Act No. 13 of 1972) hereinafter referred to as Act, against two tenants. One application was filed against Ramesh Chandra, respondent No. 2 in the first writ petition and the other application was filed against Hari Krishna Gupta, respondent No. 2 in the second writ petition. Release applications against Ramesh Chandra and Hari Krishna Gupta were registered as P.A. Case No. 18 of 1987 and P.A. Case No. 17 of 1987 respectively on the file of Prescribed Authority/III-Addl. Civil Judge, Muzaffarnagar. The release applications were allowed on 8.8.1990. Against the said decisions Ramesh Chandra and Hari Krishna Gupta tenants filed two appeals under Section 22 of the Act being R.C. Appeal No. 46 of 1990 and R.C. Appeal No. 47 of 1990. Appeals were allowed through judgment dated 14.8.1991 by VIIIth Addl. District Judge, Muzaffarnagar, against which these writ petitions are directed.
2. The accommodations in tenancy occupation of both the tenants are adjacent to each other and are parts of the same building/Kothi.
3. In the release applications it was stated that the accommodations in dispute along with other properties fell in the share of landlord petitioner under family partition which was recognised by a compromise decree passed in O.S. No. 209 of 1985 ; that landlord was serving as Joint Director (Farms) in Animal Husbandry Department of Government of U.P., that landlord would be retiring on 31.12.1987 and after retirement he intended to settle at Muzaffarnagar and reside in the accommodation in dispute. Through amendment it was added in the release applications that landlord had retired on 31.12.1987 and vacated on 14.3.1988 the Government house, which had been given to him by Government at Lucknow. It was also pleaded that Ramesh Chandra had constructed his own house and had shifted therein. It was also pleaded that the family of the landlord consisted of himself, his wife and three sons and one of the sons had got a job in Muzaffarnagar and was of marriageable age and the other sons would also reach to marriageable age after sometimes. Ramesh Chandra admitted that he had purchased an Ahata from the brother of the landlord and made construction thereupon after spending a lot of money. Ramesh Chandra further pleaded that in the said ahata landlord/applicant Hari Mohan Kichlu was also co-sharer, hence he requested him to execute the sale deed of his share. The partition was also denied and it was asserted by the tenant that the same was sham and fictitious and had been effected only for evicting the tenant.
4. In the release applications it was stated that after getting possession of the accommodation in dispute petitioner would get the same renovated, according to his own taste and desire. On the basis of this assertion it was argued on behalf of the tenants that the release applications were filed under Section 21(1) (b) of the Act, hence fulfilment of requirement of Rule 17 was essential which was not done. In my opinion the argument was quite misconceived. The application was not under Section 21 (1) (b) of the Act. There was no allegation in the application that the tenanted accommodation was in dilapidated condition.
5. The release application had been filed by Mohan Kichlu, real brother of petitioner landlord Hari Mohan Kichlu as his attorney. Hari Mohan Kichlu had executed power of attorney in favour of his brother Mohan Kichlu. There is nothing wrong in filing release application through attorney.
6. One of the points raised before the courts below was regarding the provision under which release application should be treated to have been filed, i.e. whether Section 21 (1) (a), bona fide need, or under Section 21 (1A) on the ground of retirement from Government service and vacation of Government house after retirement. It is admitted that in the building/kothi of which both the tenanted portions are parts, landlord has got two rooms in his actual possession. The prescribed authority held that as there was no latrine, bathroom and kitchen etc. in actual possession of the landlord in the said building/kothi, hence the two rooms available to the landlord could not disentitle him from getting the tenanted accommodation released under Section 21 (1A) of the Act. The appellate court in this regard differed with the prescribed authority and held that due to availability of the said two rooms applications under Section 21 (1A) of the Act were not maintainable (the landlord's case was that in one of the two rooms he had stored his household goods and the other room was used for storing fodder for cow). The landlord had further asserted that after retirement and vacation of the Government accommodation he started residing in a tenanted house belonging to Dr. Ramesh Hari at Lucknow which was later on got vacated by the landlord Ramesh Hari and thereafter he started residing along with his son Atul Kichlu at Lucknow. The tenant pleaded that the house at Lucknow alleged to be of Atul Kichlu was in fact of landlord himself, as Atul Kichlu had no means to purchase or construct the house. Lower appellate court accepted the version of the tenant and held that landlord was not entitled to the benefit of Section 21 (1A) of the Act.
7. Regarding merit of release application under Section 21 (1) (a) of the Act, the appellate court disagreed with the prescribed authority and held that the landlord failed to prove his bona fide need and that comparative hardship also lay in favour of the tenants. The lower appellate court held that the house at Lucknow was purchased and constructed by the landlord benami in the name of his son Atul Kichlu and the transaction was hit by the provision of Benami Transaction Prohibition Act. The lower appellate court held that even if the son of the landlord was held to be owner of the house at Lucknow still as landlord was residing therein, hence his need for the house in dispute which is situate at Muzaffarnagar was not bona fide. The lower appellate court also held that the landlord was carrying on the profession of veterinary Doctor from his (or his son's) house at Lucknow, hence he did not intend to shift and to settle at Muzaffarnagar.
8. In my opinion the lower appellate court committed error of law in holding that landlord failed to establish his bona fide need. Even if the house at Lucknow is held to belong to the landlord still he has got right to settle at Muzaffarnagar, his ancestral town, after retirement. The landlord cannot be dictated by the tenant to reside along with his son and son's family.
9. Supreme Court in the authority of Sarla Ahuja v. United India Insurance Company, AIR 1999 SC 100, while interpreting Section 14 (1) (e) of Delhi Rent Control Act which provides for eviction of tenant on the ground of bona fide need of landlord has held that if a landlord has got a house in the same city then his need may not be bona fide. However, "To deprive a landlord of the benefit of the ground mentioned in Section 14 (1) (e} on account of availability of alternative residential accommodation, it is not enough that such alternative accommodation is in a far different State. Such accommodation must be available in the same city or town or at least within reasonable proximity thereof, if it is outside the limits of the city." (Para 13)
10. Regarding residence of a parent with son or daughter-in-law it has been held in the same authority in para 15 that :
"15. Facts such as the cordial relationship between landlord and her daughter-in-law or that he is comfortably residing in the present building are not relevant in judging the bona fides of the claim of the landlord. Otherwise it would appear that landlord can think of residing in his other own residential building only when cracks develop in the relationship between him and his other kith and kin."
11. From the above it is quite clear that landlord fully proved his bona fide need and the application was maintainable under both the provisions, i.e., Sections 21 (1) (a) and 21 (1A).
12. The tenant expressed the apprehension that after getting the accommodation in dispute vacated, landlord would not shift therein. Sufficient safeguard in the form of right of re-entry has been provided for such contingencies under Section 24 of the Act.
13. It was stated by landlord that his family consisted of himself, his wife and three sons. It has come in evidence that one of the sons has constructed a house at Lucknow and one of the other sons is in service and posted outside Muzaffarnagar. Therefore, the family of the landlord for which need was to be considered consisted of three members. Two rooms (or one room and one kothari) are admittedly in possession of the landlord in building/kothi of which accommodations in dispute are parts. On the other hand landlord having retired from the post of Deputy Director enjoys a certain status and he requires good accommodation to live comfortably according to his status. Ramesh Chandra tenant respondent No. 2 in the first writ petition has purchased considerable accommodation [ahata] from landlord's brother and has made lot of constructions therein.
14. According to the said tenant he has constructed two big rooms which he is using as godowns and several small rooms which are also being used for purposes connected with business of ata chakki. He has not stated that these big and small rooms are incapable of being used for residential purposes. The lower appellate court was unnecessarily swayed by their actual use. Even if allegation of tenant in this regard is accepted still he can legally be asked to use some of these rooms for residential purpose in order to make room for the landlord in the tenanted accommodation in dispute.
15. The prescribed authority did not consider whether allowing the release application against only one of the tenants could satisfy the need of the landlord or not. Both the release applications having been filed simultaneously ought to have been consolidated and decided by a common judgment by the Prescribed Authority. Regarding tenant respondent No. 2 in the second writ petition, H. K. Gupta no evidence was led by landlord to show that he had any other accommodation available.
16. In view of the above, the appropriate order, which could be passed, was to release the accommodation in possession of tenant Ramesh Chandra and to reject the release application regarding the other tenant H. K. Gupta.
17. Accordingly first writ petition is allowed.
18. Order of the appellate court passed in R.C. Appeal No. 46 of 1990 dated 14.8.1991 is set aside and the order passed by prescribed authority dated 8.8.1990 in P.A. Case No. 18 of 1987 is restored. Ramesh Chandra tenant respondent No. 2 in the first writ petition is granted time till 31.3.2005 to vacate provided that within one month from today he files an undertaking before the prescribed authority to the effect that on or before 31.3.2005 he will willingly vacate and hand over the possession of the property in dispute to the landlord.
19. The second writ petition is dismissed.
20. However, I have held in an authority in Khurshida v. ADJ, 2004 (1) AWC 851 : 2004 (2) ARC 64, that writ court while granting relief to tenant under Rent Control Act, can enhance the rent to a reasonable extent. Same power can be exercised while dismissing the writ petition of the landlord because while doing so the writ court approves the protection granted to the tenant by the court/courts below against unreasonable eviction by virtue of Rent Control Act. In the instant case the tenant is in possession of the premises in dispute for a very long time. The rate of rent is either Rs. 120 (as asserted by landlord) or Rs. 60 (as asserted by the tenant). The building is situated in Muzaffarnagar an important city of western U.P. situate at a distance of only about 100 km. from Capital of India. In my opinion, therefore, tenant must pay Rs. 1,200 per month rent. Even this rent will be far less than the rent for which today the accommodation in dispute may be let out.
21. Accordingly while dismissing the second writ petition it is directed that the tenant H. K. Gupta shall pay rent to the landlord with effect from September 2004 onwards at the rate of Rs. 1,200 per month.