Heard counsel for the parties and perused the record.
An application under Section 21(1)(a) and (b) of Uttar Pradesh Urban Buildings ( Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act ) was filed by the landlords respondents Haji Mohd. Anwar Farshori, Mohd. Abbar Fashori and Mohd. Jalil Farshori, sons of late Mohd. Safdar Farshori r/o Farshori Tola, Budaun before the Prescribed Authority/ Civil Judge (Senior Division) Budaun for release of the accommodation in dispute under the tenancy of the petitioner tenant. The application was registered as P.A. Case No. 4 of 2002, Haji Mohd. Anwar Farshori and others versus Jhanjhan Singh.
The case set up by the landlords in the P.A. case was that Mohd. Safdar was landlord of house no. 441 situate in Civil Lines, Badaun, the house in dispute, detailed in the map appended with the release application. As this residential accommodation was not required by him a part of it was allotted by the District Rent Control and Eviction Officer to the tenant JhanJhan Singh on 7.2.1977 by order number B/77; that at that time only the applicant Haji Mohd. Anwar was married and other applicants were married thereafter. Sri Mohd.Safdar died on 14.5.1979 leaving behind 37 members in his family who are detailed in the family tree given in paragraph no. 6 of the release application. It was averred that the house in dispute was about 90 years old and in dilapidated condition; that notice for its demolition was received from Nagar Palika Parishad, Badaun and for this reason also the house in dispute required demolition and reconstruction. The house in dispute on part allotment was numbered as House nos. 441-A and 441-B. The Land Development Bank Branch at Badaun was allotted portion no. 44-A regarding which assurance has been given by the tenant Bank for vacating it as such except the house in dispute no. 441-B under the tenancy of the petitioners the remaining portions have come in a state of being vacated and in these circumstances the accommodation in dispute is bonafide required by the landlords for demolition and reconstruction of building for their personal use.
In pleadings with regard to comparative hardship the case set up by the landlords in the release application was that respondent resides in village Nizmpur where he is elected Pradhan as he cannot lives in the city of Badaun as it would be against public policy and government instructions for he has to execute the Development work in the village as Pradhan whereas landlord applicant no.1 is a retired person aged about 65 years having three married sons living with him; that applicant no.2 has four children and applicant no.3 has eight children and it is becoming impossible for the family of 34 members at present to live in their only ancestral house; that since allotment the tenant has not made any effort to construct his own house and is keeping the accommodation in dispute which is in dilapidated condition to compel the landlord to sell the property in dispute to the tenant at very low price; That as regards size of family members is concerned, the family of the tenant consists of only three members, all of whom are married self independents. The two sons are in service at Bareilly and one at Moradabad and his only daughter is married who resides in her own house in Awas Vikas Colony at Badaun, hence the tenant does not genuinely require the accommodation in dispute and that the only solution to the residential problem for removing the hardship of landlord is to demolish the whole of the building and after converting it into plot, partition it amongst themselves and construct their houses individually on their respective plots, which is possible only after release of the accommodation in dispute as such the release application is liable to be allowed on both the grounds i.e. bonafide need and comparative hardship.
The tenant in his written statement denied the averments made in the plaint. The case set up by him was that apart from applicant Mohd. Safdar, his three daughters namely, Samash Khatun, Anjum Khatun and Husna Khatun are also the landlords of the property in dispute and that he is depositing the rent in favour of all the heirs of late Mohd. Safdar i.e. his three sons and three daughters under Section 30 of U.P. Act No. 13 of 1972; that a plot in the east of house in dispute is also included in his tenancy which also provides ingress and egress from the house in dispute to the tenant but this portion has not been shown. Apart from it the passage south and west from the disputed property has also not been shown as such the map appended by the landlord is not correct.
In paragraph 5 of the written statement the tenant has admitted that he is village Pradhan of village Nizampur and as a residential accommodation was required in District Badaun for the need of his children in his family, he along with all the members of his family shifted to Badaun some where in the year 1972-73. Earlier he was a tenant in the house of one Sri Lakhan Ram from where he had moved a transfer application and the house in dispute was thereafter allotted to him on consideration of his need by order dated 7.2.1977 and that since then he and his family which includes to his brothers and children, who are living in the house in dispute.
The release application filed by the landlord was also challenged on the ground that since the daughters of late Mohd. Safdar had not been made parties, it was liable to be rejected for non-joinder of party and that the house in which the landlords are living had sufficient accommodation for the purpose of their residence.
In paragraphs 11 and 12 regarding partition, demolition of the house in dispute and reconstruction for the purposes of the landlord it has been averred thus:-
^^11- ;g fd ;g dguk fd izkFkhZx.k dk ifjokj 34 lnL;ksa dk gS xyr gSA ;g Hkh dguk xyr gS fd lHkh izkFkhZx.k caVokjk pkgrs gSa ;k ;g fd fookfnr edku ds fcuk [kkyh gq, caVokjk lEHko ugha gSA 12- ;g fd caVokjs ds dkj.k edku [kkyh djkuk voS/kkfud o vuko';d gS vkSj gj lwjr esa dksbZ uD'kk Hkh fookfnr lEifRr dk caVokjs ds ckjs esa ugha fn;k x;k gS vkSj u ;gh fy[kk x;k gS fd izkFkhZx.k ds ikl edku cuokus dk lk/ku Hkh gSA** The case set up by the tenant was that the notice given by Nagar Palika has been got issued by collusion and is 'Farji' which has therefore, no effect upon the case of the tenant as the house is not in dilapidated condition and liable to be demolished. In so far as the portion under the tenancy of Land Development Bank is concerned, the tenant submitted that the order of vacation against the Land Development Bank is illegal and unjustified as the same has been procured under conspiracy with the Officers of the said Bank and that portion has also not in dilapidated condition; that when he came to know about the order regarding vacation of premises no. 441-A under the tenancy of Land Development Bank, the petitioner moved an objection which has been rejected without hearing him and that as the roof of both the portions is one and if the portion which was under the tenancy of Land Development Bank is demolished, it will have adverse affect upon the construction of the house in dispute under the tenancy of the petitioner; that the bonafide need and comparative hardship of the landlords is also denied on the ground that the family of the tenant is a joint Hindu family consisting of him and his brother Krishna Pal Singh, who has since died and his son Sri Prem Babu, Advocate is also living with him in the house in dispute; that the family of the tenant consists of three sons who are living in the same accommodation together and daily go to Moradabad and Anwala for duty from the house in dispute at Badaun; that it was also admitted that his third sons is employed in Judgeship Badaun. It is submitted that only daughter of the tenant mostly lives with his father in the house in dispute. It was also denied that neither the tenant nor his son Gajendra Pal Singh is running Central Public School in the house in dispute which is in fact situated in Awas Vikas Colony opposite to LIC office.
The said P.A. case was dismissed by the Prescribed Authority vide jdugment and order dated 8.9.2006. It was challenged by the landlords in Rent Appeal No. 46 of 2006, Haji Mohd. Farshori and others versus Jhanjhan Singh. The appellate Court has allowed the appeal of the landlords vide order and judgment dated 5.6.2010. Aggrieved the petitioner has has preferred this wit petition praying for quashing of the order dated 5.6.2010 passed by the Additional District Judge, Court No.1 Budaun in Rent Appeal No. 46 of 2006, which has been appended as Annexure-6 to the writ petition.
The aforesaid judgment and order of the appellate Court has been challenged on grounds that no finding of fact was recorded by the appellate Court to the effect that there was any bonafide need of the accommodation by respondents landlords and as such application under Section 21(1) (a) and (b) of U.P. Act No. 13 of 1972 was not maintainable. It is also submitted that the Prescribed Authority has as a matter of fact found that the plot having an area of 1057 sq. yards in village Nehpur, Pargana and District Budaun was purchased by the petitioner's wife and his two brothers Raghunath Singh and Krishna Pal Singh which was not within the Municipal limits of city of Budaun and as such mere possession of plot by the wife of the petitioner and his two brothers would not attract the provision of Explanation I of the 4th proviso to Section 21 of U.P. Act No. 13 of 1972. It is stated that the appellate Court has also erred in passing the order by considering the agricultural properties of the petitioner in village Nizampur which are outside the municipal limits of the city of Budaun and hence were of no consequence for determining the needs and comparative hardship of the petitioner tenant in comparison to the of landlords respondents.
It is argued that mere financial strength of the tenant petitioner would not be of any consequence for considering his present needs and as such the appellate Court has also erred in holding that the house in possession of the members of the joint Hindu family of the petitioner would attract the provisions to Section 21 of the Act as stated above. It is submitted that the cases relied upon by the appellate Court cited by the landlords are only to the effect that for considering the bonafide needs of the landlords, the needs of the joint Hindu family members of the petitioner and the status of the brother and his family cannot be less than a licensee under the Act.
It is also argued that the appellate Court without any pleading or evidence on record has recorded a finding that one room was let out by the petitioner to Rohelkhand Social Welfare Society, though no case of sub-tenancy was ever made out by the respondents landlords.
It is stated that when the appellate Court had noticed the evidence to the effect that the landlords respondents had entered into an agreement to sell on 4.5.2009 by which sale-deed for a part of the house in dispute in favour of one Dr. Neel Kamal was executed by the landlords respondents in favour of Alok Kumar Agarwal. It goes to prove that there was no need of the accommodation in dispute by landlords respondents as such the appellate court was duty bound to consider the effect of agreements to sell dated 10.5.2007 and 4.5.2009 and Dr. Neel Kamal.
According to the petitioner, the appellate Court has not set aside the findings recorded by the Prescribed Authority to the effect that there was no compliance of the requirement of Rule 17 of Uttar Pradesh Urban Buildings (Letting of Rent And Eviction) Rules, 1972 framed under U.P. Act No. 13 of 1972 for demolition of the accommodation in dispute and thereafter reconstruction of new building on the land on which the house in dispute is situated . It is stated that the appellate Court has also not considered that the landlords respondents have been selling their various plots of land to other persons from time to time which is apparent from the finding recorded by the Prescribed Authority that respondent no.1 Mohd. Anwar Farshori had also sold a plot having an area of 270.59 sq.mtr. situated in Civil Lines, Budaun in favour of Dr. Neel Kamal and Smt. Neeta wife of Dr, Neel Kamal in 2005. Respondent no.3 Mohd. Jalil Farshori too had sold 91.74 sq. mtr. land on 12.8.2005 situated in Civil Lines, Budaun to Dr. Neel Kamal for Rs. 1,80,000/- had also sold 41.98 sq.mtr. of land for Rs. 85,000/- to Sri Raj Kumar as well as sold 139.19 sq. mtr. of land situated in Civil Lines, Budaun to one Raj Kamal and Smt. Deobala in the year 2005. It is stated that not only these plots, had been sold respondent no.3 had also sold a plot situate in Civil Lines to Radhey Shyam in the year 2005. In this regard the lLearned counsel for the petitioner has then placed reliance upon the findings recorded by the Prescribed Authority which reads:-
^^blls ;g Li"V gksrk gS fd izkFkhZx.k }kjk vusd Hkw[k.M vusd yksxksa dks fodz; fd;s x;s gSa] tc fd izkFkhZx.k vius izkFkZuk i= esa ;g vfHkdFku djrs gS fd fookfnr edku dks /oLr djkdj os mDr edku ds LFkku ij caVokjk djus ds i'pkr viuh fjgk;'k LFkkfir djsaqxs] fdUrq izkFkhZx.k ds }kjk viuh vusd lEifRr;kW tks flfoy ykbZUl esa fLFkr gS mudk fodz; fd;k tk jgk gS] blls ,d ckr Li"V gksrh gS fd izkFkhZx.k dks fjgk;'k gsrq edku dh vko';drk ln~Hkkoh ugha gS] D;ksafd mUgsa fjgk;'k djus esa ijs'kkuh gks jgh Fkh rks os bl izdkj Hkw[k.M csprs ugha] cfYd muesa viuh fjgk;'k dj jgs gksrsA** ^^bl izdkj mijksDr foospu ls ;g Li"V gksrk gS fd izkFkhZx.k dh ln~Hkkfod vko';drk ds rgr mDr izkFkZuk i= ugha fn;k x;k gS vkSj /kkjk&21 ¼1½ ¼ch½ ds rgr /oLrhdj.k lkfcr ugha gksrh gS] D;ksafd u rks uxj ikfydk }kjk fn;k x;k uksfVl gh nkf[ky fd;k x;k gS ftlesa edku dks /oLr fd;s tkus dh ckr dgh x;h gS vkSj u gh i=koyh ij ,slk dksbZ lk{; miyC/k djk;k x;k gS fd mDr edku th.kZ {kh.kZ voLFkk esa gS vkSj mlls yksxksa dks gkfu gksus dh lEHkkouk gSA /kkjk 21 ¼1½ ¼ch½ ,sDV &[email protected] ds rgr fueqfDr dk izkFkZuk i= Lohdkj fd;s tkus ls iwoZ fu;e &17 dk vuqikyu Hkh vko';d gS] tks izkFkhZx.k }kjk ugha fd;k x;k gSA vr% /kkjk&21 ¼1½ ¼ch½ ds rgr Hkh edku fueqZfDr dk izkFkZuk i= Lohdkj fd;k tkuk U;k;ksfpr izrhr ugha gksrk gSA** It is submitted by the counsel for the petitioner that all these facts considered in the judgment indicate that the need of the landlords respondents was not bonafide but was set up by them for demolition of house in dispute with the purpose for ousting the tenants and though the building is not in dilapidated condition as such the order passed by the appellate authority is bad in law; that the appellate Court ought to have set aside the findings of the Prescribed Authority as besides the notice for demolition by the Municipal Board there was no other evidence on record to establish that the building in question under the tenancy of the petitioner was in a dilapidated condition. Hence, the findings arrived at by the Prescribed Authority had become final in this respect having not been reserved by the appellate court; that the acquisition of a plot having an area 1057 sq. yards on 4.5.2009 by the petitioner's wife and his two brothers was therefore of no consequence and the findings recorded by the appellate authority therefore, deserves to be quashed.
It is lastly submitted that mere intention of partitioning the land after demolition of the house can not be said to be a bonafide need of the landlords respondents as the appellate court has also not set aside the findings of facts recorded by the Prescribed Authority that towards east of the house in dispute there is a vacant land of the landlords on which constructions can be raised by them, hence no hardship would be suffered by them even if the house in dispute is not released in their favour.
In support of this contention, learned counsel for the petitioner has relied upon the judgment rendered in (1)- Phiroze Bamanji Desai versus Chandrakant M. Patel and others, AIR 1974 SC-1059 wherein it has been held that there must be an element of need before a landlord can be said to 'require' premises for his own use and occupation and this need should be bona fide and not for mere desire.
(2)- This case relied upon by the learned counsel for the petitioner is Amarjit Singh versus Smt. Khatoon Quamarain, AIR 1987 SC-741 wherein it has been held that the landlord must have bona fide need and he should not have in his or her possession over any other reasonably suitable accommodation. It has further been held therein that the landlord after his need arose could have taken possession of other reasonable accommodation but in not doing so he is disentitled to evict tenant on ground of bonafide need.
(3)- In Ashok Kumar versus VIIth Additional District Judge, Muzaffarnagar and others, ARC, 1998(2)-430 in paragraph 14 of the judgment, the Court has taken note of the arguments of learned counsel for the contesting respondents that even if the tenant petitioner has available with him alternative accommodation, he has no right to raise objection against the release application as it is well settled law that even where the tenant may be having another alternative accommodation, the landlord is not relieved of the burden of proving that the need set up by him is genuine and bona fide. Since the factum of bonafide need and comparative hardship has been found in favour of the landlord, the decision in Ashok Kumar (supra) does not help the petitioner.
(4)-In paras 14 and 15 of the judgment reported in 1995(3) JT-614, S.V.R. Mudaliar (dead) by Lrs. & Ors. Vs. Mrs. Rajabu F. Buhari (Dead) by Lrs. & Ors. relied upon by the learned counsel for the petitioner it has been held that before reversing a finding of fact the appellate Court has to bear in mind the reasons ascribed by the trial Court and are to be considered in facts and circumstances of each case. It is clearly distinguishable as the facts and circumstances in which this judgment is rendered do not apply to the facts and circumstances of the present case.
(5)-In Ishwar Dass Jain (dead) through Lrs. Vs. Sohan Lal (dead) by Lrs, AIR 2000 SC-426, the Court held that Second Appeal under Section 100 C.P.C. is permissible only when material or relevant evidence is not considered or where finding has been arrived at by the appellate Court by placing reliance on inadmissible evidence. It is in either of the above situations a substantial question of law can arise. The instant writ petition filed against order passed on the release application under Section 21(1)(a) and (b) of the Act is not second appeal under Section 100 C.P.C. Therefore, substantial question of law is not involved in this case, rather the petition is to be decided on the touchstone of justice, equity and good conscience.
(6)-In 2009 (3)( ARC-628,Jai Prakash Gupta (D) through Lrs. Vs. Riyaz Ahmad and another relied upon by the learned counsel for the petitioner it has been held that it is upon the question of consideration of subsequent development. The case of Jai Prakash (supra) was in respect of an application under Section 21(1) (a) of U.P. Urban Buildings ( Regulation of Letting, Rent and Eviction) Act, 1972. That was remanded by the High Court in appeal. The Apex Court held that decision for consideration of subsequent development is relevant and needs to be gone into on evidence. In that case, the litigation was pending for 15 years and instead of setting aside entire order for fresh consideration on subsequent development, the whole case had been remanded by the High Court. In the circumstances, the Apex Court directed that an order of limited remand ought to have been passed.
(7)-1999 (35) ALR 331,Maqboolunnisa Vs. Mohd. Saleha Quaraishi) . This case pertains to the question of bonafide need or requirement. In that case, the shop was required by the landlord to enable his son to run the business and adjacent shop of equal size had fallen vacant during the trial. Evidence was led to the effect that both shops would be converted into a "big shop" but there was no such pleading. The Court held that this assertion itself does not establish a genuine bonafide need as it is not stated that the shop falling vacant was not sufficient to run business, hence a mere 'desire' to have a very large shop cannot be equated with a genuine bonafide 'need' as such eviction petition of the petitioner tenant had been rightly dismissed. In a nutshell the law laid down by the Apex Court is that the evidence beyond the pleadings should not be allowed and any such evidence without amendment in pleadings would be beyond the pleadings and cannot be accepted.
(8)-1982 AWC-549, Jokhan Vs. The District Judge, Basti and others,In this case relying upon notice issued by the Municipal Board under Section 278 of Municipalities Act the building was held to be in dilapidated condition. The Court in the peculiar facts and circumstances of that case held that mere notice is not sufficient and the finding regarding dilapidated condition must be given on the basis of evidence produced by the parties; that copy of that plan filed by the landlord appeared to be without proper sanction as original was not produced and that the financial capacity to carry out the plan was also not proved. In the circumstances, the Court held that order granting eviction of the tenant was not sustainable.
(9)-In 2009(3) ARC-353, Saroj Mishra (Smt.) and others Vs. Chandrakanti Sinha ( Smt.) and others the landlord had filed release application under Section 21(1)(a) of U.P. Act No. 13 of 1972 which was allowed by the Prescribed Authority. The appeal filed against the order of the Prescribed Authority was dismissed. In the writ petition it was not disputed that issue regarding part release was not considered by the court below. In the circumstances, the writ petition was allowed in part by the High Court and the matter was remitted to the appellate authority for fresh decision in view of these observations to be decided within six months.
These cases are clearly distinguishable from the facts of this case and do not apply.
On the other hand, learned counsel for the respondents has submitted that the petitioner tenant has sub-let the premises in question without permission of the landlords as such he is liable to be evicted in view of the law laid down in 2003(2) AWC-922 Bharat Lal Baranwal Vs. Virendra Kumar Agarwal. According to him, admittedly the petitioner tenant has two residential plots in Khasra no. 128 village Maujampur Nehnagar Pargana Badaun which now fall in the Municipal limits of Budaun and are situated at a distance of about 2 kms. from the octri of Nagar Palika Parishad, Badaun and the residential premised situated in one of these plots has also been let out by him.
It is stated that the petitioner tenant was allotted premises in question in the year 1977 and all his three sons are now in Government service. Two of them are as lecturers in Inter Colleges and the third is a Clerk in the Judgeship at Budaun. Apart from this, the tenant also has 89 bigha of 'Pokhta' agricultural land; that though the petitioner was Pradhan of the village for about 40 years having sufficient financial means as well as landed property as is apparent from record, he did not make any efforts either to construct his own residential house or to search out an alternative accommodation. Rather two plots were purchased by wife and brother Krishnapal Singh. A residential accommodation has been constructed upon it which has been let out on rent and for this reason also he is liable to be evicted in view of the law laid down in the cases of (1)- 2005(3) AWC-2840 Alld. Rakesh Kumar and others Vs. VIIIth Additional District Judge,Kanpur and others, (2)-2006(1) AWC-816 Alld. Radhey Shyam Vs. IVth Additional District Judge, Aligarh and others, (3)- 2007 (5) AWC-5147 Alld. Santosh Kumar and another Vs. Smt. Sarla Devi, (4) 2008(3) AWC-3134 SC, Ganga Devi Vs. District Judge, Nainital and others and (5)- 2008(4) AWC-4073 Alld. Abdul Aziz (D) through LRs. and another Vs. Vth Additional District Judge, Agra and others.
He submits that in the aforesaid cases the ratio laid down is that where the tenant or a member of his family had acquired a house or a residential accommodation in a vacant state , the tenant has no right to contest the release application. According to the learned counsel for the respondents, the petitioner claims his brother and cousins are included in his family. If that be the view it cannot be safely said that even his brother or the wife of the petitioner having acquired two plots and constructed residential house upon it which they have let-out, dis-entitles the tenant from contesting the release application as according to the petitioner they are members of his family.
As regards the judgment of the appellate Court is concerned, it is stated that the appellate Court has considered the judgment of the Prescribed Authority wherein the comparative hardship and bona fide need of the landlord and tenant has been considered. In so far as question of bonafide need is concerned, learned counsel for the respondents has submitted that at the time of filing release application there were 34 members in the family of the landlords which has increased and at present there are 45 members in his family who require space for separate habitation and privacy and would like to settle their children in business or service and life by marrying them, hence the need of the landlords is more bonafide than that of the tenant whose children are already settled and are in service at Bareilly & Moradabad which are situated at a distance of about 45 kms. and 100 kms. from Badaun.
It is stated that now only two members of the family of the tenant are occupying the accommodation in dispute as lawful tenant and for this reason the tenant has sublet part of the building and has called his brothers and their family to live with him in order to create artificial need and hardship which he does not actually has but claims in this background. He has placed reliance upon the judgment rendered in 2007(1) AWC-588 Alld. Jagat Narain Nigam versus Suraj Prasad Srivastava in support of his above contention. According to him, the appellate Court relying upon the decisions rendered in (1)- 2006(2) AWC-1096 Alld. S. Mazoomdar (D) through LRs. Vs. Additional District Judge, Meerut and others and (2)- 2008 (1) ADJ-681 Alld. Surendra Dev and others Vs. Additional District Judge, Bareilly and others has therefore, rightly come to the conclusion that bonafide need and hardship are in favour of the landlords, hence the petitioner tenant is liable to be evicted from the accommodation in dispute.
According to the learned counsel for the respondents, the landlord has every right to choose a residence of his own choice and the tenant cannot dictate the landlord to live in a particular building or use the same in the manner dictated by him. It is stated that in the facts and circumstances of the case, he is liable to be evicted in view of the law laid down in the case of 2010 (1) AWC-86 Alld. Smt. Savita Bishnoi Versus Dr. Rajiv Kumar Tevatiya and others.
After hearing learned counsel for the parties and on perusal of the record it is apparent that the premises in dispute was allotted to the petitioner in the year 1977. His three sons after completing studies are now in Government job, two of them are working as lecturers in Government Inter Colleges and one as a Clerk in Judgeship at Budaun. The only daughter of the tenant is also married and is living with her husband in Awas Vikas Colony at Badaun, hence the requirement of the tenant himself and his wife in the tenanted portion cannot be greater than that of the landlords who had 34 members in his family ( 45 members in his family at present). Considering that the landlord respondent nos.1 and 2 are retired employees and are aged about 70 years therefore, the landlords do require partition of the property in dispute of late Mohd. Safdar between his heirs for as new construction on their respective shares. Admittedly, it cannot be made in a planned manner, for the building in dispute is situated in almost the centre of the plot. They are aged persons being Senior Citizens would also require time for constructions of new building which considering their age is a special factor for settlement of their family dispute and the members of their family by reconstruction of the building of which some part is occupied by the tenant.
Admittedly, the petitioner used to travel 40 kms. to village Nizampur and back daily for discharge of his duties as Pradhan. His two sons also admitted are going for duty daily to Moradabad and Badaun which are at a distance of about 100 kms. and 45 kms. respectively. His one son is clerk in the District court, Badaun where his brother's son is also an Advocate. The need of the brother and his family as well as In-laws and daughter appears to be set up to defeat the claim as neither it has been proved that they are members of Joint Hindu Family by the petitioner nor they fall within the definition of family as defined in Section 3(g) of U.P. Act No. 13 of 1972.
The contention of learned counsel for the petitioner that cousin brother and In-laws are living with him and if they are not tenants they are licensees having right to occupy the building under the tenancy of the petitioner cannot be accepted for the reasons that cousin brother does not fall within the four corners of the definition of family in Section 3(g) of U.P. Act No. 13 of 1972. Neither he nor In-laws can be a licensee in the building as they cannot occupy the building for more than 3 months as in that capacity and that too after following the provisions and procedure prescribed under the Act.
As regards the plea and stand taken by the tenant that the third brother (respondent no.3) of the landlords has sold out some property cannot defeat the claim of the remaining respondents in any manner as the accommodation in dispute is bonafide also required by the brothers of respondent nos. 1 and 2 and co-owners. The property said to be sold out by respondent no.3 is prior to filing of release application and not during the pendency of the release application and as such the bonafide need and comparative hardship is to be seen as existing at the time of filing of the release application. It appears from the details of the property sold that it is part of the Land appurtenant, which has been sold prior to filing of the release application. It may be that these properties were sold for the purpose of financing of the new construction after demolition of the construction in dispute or for any other pressing need at that time. A mere allegation by the tenant regarding extinguishing of need for sale of some property which might not be needed by the landlord or to overcome some pressing need, in the absence of proof by the tenant who had made such an application will have no effect on the bonafide need or requirement and hardships of the landlord viz-a-viz the tenant.
As regards Rule 17 of Uttar Pradesh Urban Buildings( Regulation Of Letting, Rent And Eviction) Rules,1972 is concerned, suffice it to say that this point has been raised for the first time before this Court. The case of the tenant before the court below was that the application for release filed by the landlord was not maintainable under Section 21(1)(a) and (b) of U.P. Act No. 13 of 1972. In this regard, the findings recorded by the appellate court may be referred to which read thus:-
^^11- nwljk eq[; rdZ izR;[email protected]{kh ds fo}ku vf/koDrk }kjk ;g izLrqr fd;k x;k gS fd vihykFkhZ @ izkFkhZx.k dh vksj ls iz'uxr lEifRr dh fueqZfDr gsrq izkFkZuk vf/kfu;e la[;k&13 lu~ 1972 dh /kkjk 21 ¼1½ ¼ch½ ds vUrxZr Hkh izLrqr fd;k x;k gS] exj fookfnr lEifRr tj tj ;k fxjkÅ gkyr esa gks bl rF; dks os dgha fl) ugha dj ik;s gSA bl fcUnq ij U;k;n`"VkUr jek'kadj cuke ftyk tt QStkckn ,oa vU; ¼mPp U;k;ky; bykgkckn½ 1998 ¼16½ ,y0lh0Mh0 i`"B&1 vCnqy gbZ cuke r`rh; vij ftyk tt cLrh ,oa vU; 2001 ¼2½ bykgkckn jsUV dsflt i`"B 74] U;k; n`"VkUr mek'kadj cuke uRFkhnkl ,oa vU; 2005 ¼1½ ,0vkj0lh0 i`"B &20 ,oa U;k; n`"VkUr ds0,u0 vuUr jktk xqIrk cuke Mh0oh0 fot; dqekj 2008 ¼1½ flfoy dksVZ dsflt lqizhe dksVZ i`"B&21 esjs le{k j[krs gq, fo}ku vf/koDrk izR;qRrjnkrk @ foi{kh dh vksj ls cy fn;k x;k gS fd ;fn izkFkhZ ;g fl) dj ikus esa fdlh izdkj lQy ugha gks ik;k gS fd iz'uxr lEifRr dh fueqZfDr gsrq vf/kfu;e dh /kkjk&21¼1½ ¼ch½ ds vUrxZr mldk izkFkZuk i= fQj iks"k.kh; ugha jg tkrkA bl lEcU/k esa mYys[kuh; gS fd izLrqr izdj.k ds vUrxZr izkFkhZx.k }kjk Lo;a dh vkoklhy; lEifRr dh fueqZfDr gsrq izkFkZuk i= bl dFku ds lkFk fu;r izkf/kdkjh ds le{k izLrqr fd;k x;k gS fd viuh fookfnr vkoklh; lEifRr dh mUgsa vc esgrh vko';drk gSA vr% viuh bl lEifRr ij fLFkr iqjkus tj tj Hkou dks fxjkdj os bls lery dj os lEifRr dk vkilh cVokjk djus ds mijkUr bl ij viuh vko';drk gsrq vc vkoklh; Hkou dk iquZfuekZ.k djkuk pkgrs gSaA vr% ,slh fLFkfr esa ;g ugha ekuk tk ldrk fd lEifRr dh fueqZfDr gsrq vf/kfu;e dh /kkjk&21 ¼1½ ¼,½ ds vUrxZr izkFkhZx.k dk izkFkZuk i= fof/kd :i ls fdlh izdkj iks"k.kh; gh u gks x;k ekudj bl gsrq fof/kd :i ls fu/kkZfjr vfuok;Z vis{kkvksa dh dlkSVh ij gh dlk tk;sA lEifRr dh fueqZfDr gsrq izkFkhZx.k dk izkFkZuk i= D;ksafd vf/kfu;e dh /kkjk&21 ¼1½ ¼,½ ds vUrxZr gh izHkkoh gksrk gS] vr% esjs esa fo}ku vf/koDrk izR;qRrjnkrk @ foi{kh dk ;g rdZ esjs er esa fdlh izdkj lkFkZd ugha jg tkrk fd izLrqr izdj.k ds vUrxZr vf/kfu;e dh /kkjk&21 ¼1½ ¼ch½ dh vis{kk,sa iw.kZ u gksus ds dkj.k mDr izkFkZuk i= fof/kd :i ls iks"k.kh; gh u gksA blh Lrj ij] ,d ;g rdZ Hkh izR;qRrjnkrk @ foi{kh dh vksj ls izLrqr fd;k x;k gS fd fueqZfDr izkFkZuk&i= vf/kfu;e dh /kkjk&21 ¼1½ ¼,½ ,oa /kkjk 21 ¼1½ ¼ch½ ds vUrxZr la;qDr :i ls izLrqr fd;k x;k gS tks fof/kd :i ls iks"k.kh; ugha gSA foi{kh dh vksj ls ;g rdZ l{ke fu;r izkf/kdkjh @ flfoy tt ¼ofj"B [k.M½ cnk;wWa ds le{k izdj.k ds fopkj.k ds le; Hkh izLrqr fd;k x;k Fkk ftl ij U;k; n`"VkUr 2001 ¼2½ ,0vkj0lh0 i`"B&242 mn~/k`r djrs gq, fo}ku voj U;k;ky; }kjk igys gh ;g vo/kkfjr fd;k tk pqdk gS fd vf/kfu;e dh /kkjk&21 ¼1½ ¼,½ ,oa /kkjk 21 ¼1½ ¼ch½ ds vUrxZr la;qDr :i ls izLrqr izkFkZuk i= dh fof/kor iks"k.kh; gSA blds foijhr ,slk dksbZ fof/kd izkfo/kku vFkok U;k;n`"Vkar izR;qRrjnkrk @ foi{kh dh vksj ls vihyh; Lrj ij Hkh esjs le{k izLrqr ugha fd;k x;k gS] ftlds vk/kkj ij bl lEcU/k esa eSa foi{kh dk ;g dFku fdlh izdkj iq"V gksrk gks fd /kkjk&21 ¼1½ ¼,½ ,oa /kkjk 21 ¼1½ ¼ch½ ds vUrxZr la;qDr :i ls izLrqr fueqfDZr izkFkZuk i= fdlh izdkj fof/kor iks"k.kh; u gksA vr% ,slh fLFkfr esa bl fcUnq ij fo}ku voj U;k;ky; ds mDr fu"d"kZ esa gLr{ksi fd;s tkus dh dksbZ vko';drk eSa ugha ikrkA** The finding of bonafide need and comparative hardship are purely findings of facts which may not be interfered by the High Court in writ jurisdiction unless shown to be without basis or perverse. I am supported in my view by the decisions rendered in 2004(2) AWC-1721 SC, Ranjit Singh Vs. Ravi Prakash and 2007(6) AWC-5644 Alld. Gopal Sharma and others Vs. XIVth Additional District Judge, Meerut and others in this regard.
As already stated above, the cousin brother and In-laws do not fall within the ambit of the definition of family as defined under Section 3(g) of U.P. Act No. 13 of 1972. The Court has also recorded a finding of fact that the petitioner had sub-let the premises in dispute illegally and without the consent of the landlord in the name of Ruhelkhand Welfare Society, hence he is not entitled to any relief. Admittedly also, the petitioner tenant has purchased two residential plots which are now in the municipal limits of city Budaun and have been let out on monthly rent.
The suggestion of the petitioner that as the landlord also has sufficient means and other landed property appurtenant to the house in dispute on which he may construct the house except the accommodation/house in dispute does not appear to be feasible and appealing to reason. In the facts and circumstances, if the property which is more than 90 years old along with the land appurtenant is to be partitioned as the accommodation in dispute is situated in such a manner that property cannot be partitioned without demolition. Moreover, reasoning given by the petitioner tenant and his advice to the landlord to construct his own house on appurtenant landed property can also be applied to him as he also has landed property in his village Nizampur where he was Pradhan for 40 years and the plots on Khasra number 128 village Maujampur about 2 kms. for change in Pargana Badaun. Admittedly, he and his family members travel for 80 to 200 kms. per day for discharge of their duty, they can therefore, discharge their duty from the two plots situated about 2 kms. from the Octri post of Nagar Palika Parishad, Badaun over which construction built by them for residential purpose have been let out.
The landlords had 34 members in his family at the time of filing of the release application. His family now consists of 45 members. The need of the landlord has been found to be bonafide whereas the family of the tenant has decreased as his sons are not serving at Budaun but at Bareilly and Moradabad about a distance of 45 to 100 kms. from each side from Badaun. The daughter is also married off by the tenant who also resides at Badaun. He has now only two persons, lawfully living in the accommodation in dispute. His brother's family, In-laws and family and other relatives do not fall of his family within the meaning of Section 3(g) of the Act. Therefore, the Courts below have rightly come to the conclusion that the tenant would suffer less hardship if he is evicted than the landlords and bonafide need is also in his favour. Since the landlords have moved release application on the ground that the house in dispute requires demolition and reconstruction for the use of their family members, the application falls within the definition of Section 21(1)(a) and (b) of U.P. Act No. 13 of 1972.
Consideration may also be had to the fact that the tenant has found to sub-let the premises in dispute as a matter of fact. The argument of the learned counsel for the respondents has force that a house on the land appurtenant cannot be built as that area alone is not feasible for partition amongst the family of late Mohd. Safdar and sufficient to provide accommodation to now forty five members of the family of the landlords and partition of land on which the house in dispute is standing is therefore, an essential requirement so that it may be demolished and a new proper construction can be made to meet the bonafide need of the landlord.
In these circumstances, the decision rendered in Phiroze Bamanji Desai (supra) relied upon by the petitioner counsel is of no help as element of bonafide need has been found by the appellate Court in favour of the landlord. The ratio decided in Amarjit Singh (surpa) relied upon by the learned counsel for the petitioner is also not applicable to the facts and circumstances of this case as the petitioner has failed to establish that landlord has any other "reasonably suitable accommodation" wherein his 34 (now 45) members of family can live. The tenant not only has landed property in his village of which he remained Pradhan for 40 years, his sons are in Government service, serving at Bareilly and Moradabad. His daughter is already married. Not only this he has built residential accommodation in two plots situate in Khasra no. 128,renumbered as 106 Kha after consolidation proceedings which are situated within 2 kms. from Octri post established by Nagar Palika Parishad. These plots are claimed by the landlord now to be within municipal limits of Budaun as proposal for including them in city limits has already been sent by the Nagar Panchayat Parishad Badaun to the State Government whereas the counsel for the tenant submits that they are outside the municipal limits as they are about 2 kms. further away from Octri post and as situated in village Maujampur, Pargana Badaun. Since the counsel for the parties are not clear about the fact as to whether the plots of wife and brother of the petitioner Jhanjhan Singh are within the limits of Nagar Palika Parishad, Badaun.
A query therefore, has been made by the Court from the Lekhpal and the District Judge as well as Nagar Palika Parishad, Badaun. The Court has been informed by the District Judge that these plots are now in the municipal limits of the city of Badaun. The Tehsildar, Badaun has informed from records that in consolidation proceedings khasra no. 128 has been re-numbered as khata no. 186 Kha on which the name of Krishnapal Singh, the brother of the tenant along with other is mutated and some plots of this village are outside municipal limits and some within the municipal limits of Badaun. The Lekhpal Sri S.P. Singh has also informed that there is another Khasra no. 186-Ka ( new) M. which is a bigger part than khasra no. 186-Kha ( new). The office of the Nagar Palika Parishad, Badaun has informed that part of village Maujampur including khasra no. 186-Kha is within municipal limits of Nagar Palika Parishad, Badaun.
Thus, for all practical purposes the plots of the petitioner's wife and his brother situate in khata no. 186-Kha fall within the municipal limits of Nagar Palika Parishad,Badaun, on which the wife of the tenant Jhanjhan Singh has raised residential construction and has let out the same on rent.
The contention of learned counsel for the petitioner that since the plots of the petitioner in village Maujampur are admittedly situate at a distance of 2 to 3 kms.from the Octri post or 'Chungi", this necessarily implies that plots are outside of municipal limits of Nagar Palika Parishad,Badaun, is fallacious. The reason is that Octri has been abolished by the State Government sometime in the year 1970. Moreover, Octri was charged by setting up Octri post within the city as well as outside city limits, for example municipalities also set up their Octri posts near Railway station, Bus Station or Tourist places which does not mean that the city limit ended at the Railway Station or the Bus Station. After abolition of Octri the cities have expanded and extend for beyond the Octri established by Nagar Palika/Municipalities sometimes set on the periphery of city limits. For example the Octri post was established on Shastri bridge at Allahabad but the city limits extended for beyond Jhunsi i.e. more than 4 kms. Similarly, the Octri post sitaute in Mundera on G.D. Road , Allahabad but the city has extended beyond Bamrauli. The Octris do not mark the boundary of the city, hence I am inclined to accept the information of the District Judge,the Nagar Palika Parishad and the Lekhpal who from the record has informed that plot no. 186-Kha situate in village Maujampur was within the municipal limits of Badaun.
It appears that the petitioner wants to hold on the accommodation in dispute to deprive the landlords family from settlement of the family members by preventing partition so that his brothers family his In-laws and other relatives whom he has illegally inducted in the family may continue to enjoy at the cost of the landlords whom the need of the accommodation has been found to be bonafide and their sufferance of comparative hardship greater. Moreover, sub-letting by tenant is one ground which established that he has no need for the accommodation but only wants to reap the fruits of investment by the landlord, the tenant petitioner has been successful for the last about 8 years in his designs by prolonged litigation, as his son is employed in District Court, Badaun and brother's son is a particising Advocate there residing with the tenant petitioner in the accommodation in dispute.
For all the reasons stated above, the writ petition is dismissed. No order as to costs.
Petitioner is granted one month's time to vacate and handover peaceful possession of the accommodation in dispute to the landlords.
Dated 9.3.2011 CPP/-