List has been revised. No one has appeared on behalf of the respondents. Heard learned counsel for the petitioner and perused the record.
A release application under Section 21(1) (a) of U.P. Act No. 13 of 1972 was filed by the petitioner landlord which was registered as U.P.U.B. Case No. 35 of 1988 with the allegation that the petitioner is owner and landlord of Building No. 12/95, Chowk Bundu Khan, Aligarh. A portion of the said building consisting of a room, a dalan and a Sahan is in tenancy of respondent on rent of Rs.15/- per month. The remaining portion was in occupation of other tenants namely Fazul Rahman and Zafruddin. The family of the petitioner-landlord comprises of himself, his wife, 4 sons and 5 daughters. The eldest son Alimuddin was married when the release application was filed and his family comprises of his wife, a son and a daughter. Thus, there were in all 15 members in the family of the landlord. They were living in House No. 9/15, Tantan Para, Aligarh which comprises of 3 horse sheds on the ground floor out of which one is said to be in dilapidated condition and two others are also not habitable and are being used as store house for his manufactured goods. On the first floor, there are three rooms, a latrine and a kitchen, in which the entire family of the landlord petitioner consisting of 15 members is living. The landlords claimed that they are in urgent need of additional residential accommodation and the portion in possession of the respondent tenant is bonafide required by the landlord. On the other hand, the landlord petitioner further claims that respondent tenant had built two houses, one at Mohalla Jangal Garhi and the other at Miya Ki Sarai, Delhi Gate, Aligarh; that the tenants are residing in the house at Jangal Garhi and are keeping the disputed house locked.
The respondents tenants contested the release application by filing a written statement in which it was alleged that the petitioner can use ground floor portion of building no. 9/15, Tantan Para, Aligarh by repairing horse-sheds and by raising constructions on the first floor. It was further suggested that the petitioner can satisfy his need by making constructions over open land. Though it was admitted that respondent tenant is owner of building in Jangal Garhi but it was alleged that the same is being used in connection with his business of manufacturing locks and other articles.
The Prescribed Authority vide its judgment dated 9.12.1996 allowed the release application holding the need of the petitioner to be genuine and bonafide on the ground that the petitioner landlord has no accommodation in his possession in disputed house no. 12/95; that on ground floor of house no. 9/15, Tantan Para the petitioner is running his manufacturing business from the 3 horse sheds. The Prescribed Authority further found that the landlord is only in possession of three rooms, kitchen and Verandah on the first floor of the said building in which his entire family is living and that the other building no.12/100 is neither residential nor is being used for said purposes.
The Prescribed Authority further held that the family of the landlord comprised of 15 persons in 1998; that when release application was filed, his eldest son was 26 years of age, second one 22 years, third one 14 years and all of them have grown up by now and are having their own families and that the daughters and children also requires separate rooms and that the present accommodation is wholly insufficient for his big family. The Prescribed Authority also held that no effort was made by the respondents tenants to search out alternative accommodation since 1988 when release application was filed and further the tenant had admittedly purchased two buildings which claims that he is using those building in connection with his business. Thus, financial position of the tenant is good and he can easily search out alternative accommodation and will thus suffer no hardship in case of eviction and therefore, need of the landlord is bonafide and he will suffer more if hardships are compared.
Aggrieved by the judgment of the Prescribed Authority, the respondents tenants field U.P. U.B. Appeal No. 4 of 1996 before the appellate court.
During the pendency of the appeal, respondents tenants filed an application along with an affidavit interalia that tenant Mullu alias Rashid in building no.5/15 Tantan Para had vacated one room and Dalan and it is in possession of the petitioner; that Shamim Arra has been married and is residing with her husband and children at Gonda Road, Aligarh and that daughter Shahim Parveen has been married on 13.12.1999.
The petitioner filed his affidavit in rebuttal and categorically stated that Shamim Arra has been divorced by her husband and is living with the petitioner at Tantanpara, Aligrah. It was categorically denied that any tenant by name of Mullo alias Rashid was in occupation of any portion of building no.9/15, Tantanpura, Aligarh or in any other building belonging to the petitioner. It was also mentioned that in fact during the pendency of proceedings the need of the petitioner had increased as the children of his eldest son Alimuddin have also become major and require separate accommodations. The other son of the petitioner Salimuddin also got married and is blessed with a daughter and additional accommodation is required for them. The third son of the petitioner Nisar also got married and has two issues and they also require additional residential accommodation. The appeal filed by the tenant was allowed. Aggrieved by the aforesaid judgment and order of the appellate court the petitioner has preferred this writ petition.
The contention of learned counsel for the petitioner is that the appellate court has incorrectly held that release application is only for the need of eldest son Alimuddin and Dr. Smt. Shamim Arra. It is stated that the said finding is factually incorrect as perusal of paragraph nos. 4 to 10 of the release application will demonstrate that the petitioner had set up need for additional residential accommodation for the entire family.
It is submitted that the appellate court relying on affidavit of the tenant filed in appeal allowed the appeal incorrectly by illegally holding that Shamim Arra has been married and therefore, her need has come to an end. For coming to such conclusion the appellate court has misread the evidence on record relied on a invitation card which is in regard to the marriage of another daughter of the petitioner namely, Shahid Parveen. It is stated that the petitioner landlord in his affidavit filed in rebuttal before the appellate court denied that Smt. Shamim Arra had re-married specifically stating that Shamim Arra is still living with him. It is also stated that reasoning of the lower appellate court is misconceived for holding that the affidavit of husband of Shamim Arra could have been filed stating that her marriage had not taken place. Such a reasoning is wholly fallacious as the burden was on the respondent tenant to prove that Shamim Arra was married during the pendency of the appeal and the petitioner cannot made to prove a negative fact. Apart from it, the need set up in the release application was for the entire family and even assuming that Shamim Arra was married during the pendency of the appeal, it will in no manner affect the bonafide need of the petitioner.
It is also submitted by counsel for the petitioner that findings of the appellate court on basis of the affidavit filed by the tenant that a tenant Mullu had vacated one room and Dalan of building no. 12/100 and as such need of the petitioner landlord has come to an end is factually incorrect. He states admittedly by the affidavit filed by the petitioner landlord in rebuttal, he denied any such tenant by name of Mullu was in occupation of any of his buildings,hence there was no occasion for a finding that such tenant had vacated any portion of the building under his occupation unless proved otherwise. The appellate Court disbelieved the contention of the petitioner on the reasoning that the petitioner should have got an affidavit of Mullu filed in the court which is wholly without any basis as it has been the categorical case of the petitioner that there was no person by the name of Mullu who was tenant in any portion of his buildings and it could not have been expected of the petitioner to file an affidavit of a person who does not exist. The respondents tenants who claimed that Mullu was tenant and had vacated should have got affidavit of such person filed in the court for giving a positive evidence in support of his case and the petitioner cannot be compelled to prove a negative fact. Thus, the judgment of the appellate Court is manifestly erroneous in law.
After hearing the counsel for the petitioner it appears that the appellate court also wrongly held that the Prescribed Authority should not have placed reliance on the commissioner's report as objections were filed against it by the tenants. It is evident from the judgment of the Prescribed Authority that objections filed by the tenants were duly taken into consideration and only thereafter commissioner's report was relied upon. Thus, the Prescribed Authority has committed no illegality in placing reliance on the commissioner's report. Further, the only objection to the commissioner's report was that house no. 12/100 Chowk Bundu Khan is a double storeyed house and the first floor of this property is a residential one. The Commissioner in his report also found that said house to be a double storeyed building and the stair case and the only room on the first floor were found to be in dilapidated condition. There was no objection by the respondents that the extent of accommodation disclosed by the Advocate Commissioner in his report, on the first floor in building no. 12/100 is incorrect. There is also no objection regarding extent of the accommodation found by the Advocate Commissioner on the ground floor. There is also no objection that the Advocate Commissioner has not disclosed that any portion of the aforesaid building is in occupation of any tenant Mulloo alias Rashid. In such circumstances, all the facts mentioned by the Advocate Commissioner regarding building no. 12/100 remained unrebutted and in such circumstances there is no illegality in relying on commissioner's report nor there was any requirement for the petitioner to have produced documentary evidence to support the commissioner' report in his favour. In such circumstances, the appellate court wrongly come to the conclusion that the Commissioner's report cannot be read in evidence or that any fresh report should have been called for.
Since neither counter affidavit has been filed rebutting the averments in the writ petition nor the aforesaid arguments of the counsel for the petitioner are rebutted, the averments in writ petition are to be taken as correct in view of the decisions rendered in Choksi Tube Company Limited Vs. Union of India 1997 (II) SCC-179 and AIR 1993 SC-2592 Naseem Bano Vs. State of U.P. and others.
The appellate court has further committed a manifest error of law in not taking into consideration the subsequent events brought on record by the petitioner by way of his affidavit filed in rebuttal in correct perspective wherein the petitioner had averred that during pendency of the proceedings his two other sons got married and were blessed with children. It was specifically stated that Salimuddin the second son got married 3 years back and is blessed with a daughter. The other son Nisar was married 6 years back and now has two children.The fourth son Riazuddin has also attained marriageable age. Evidently, the need of the petitioner landlord had increased manifold during pendency of the lititgation. The appellate Court has, therefore, committed manifest error of law in not taking into evaluating the subsequent events correctly and has therefore, the appellate court has arrived at an incorrect conclusion that the need of the petitioner has come to an end on account of marriage of one of his daughter and also because of vacation of one of the rooms by tenant Mullu. These findings of the appellate Court are wholly illegal and perverse and deserve to be set aside. The writ petition is, therefore, allowed. The judgment of 11th Additional District Judge, Aligarh dated 22.9.1999 passed in U.P.U.B. Appeal No. 4 of 1996 is quashed and the judgment of the Prescribed Authority dated 9.2.1996 in U.P.U.B. Case No. 35 of 1988 deserves to be upheld and is upheld.
For the reasons stated above, the writ petition is allowed. The order and judgment dated 22.9.1999 passed by the appellate court in U.P.U.B. Appeal No. 4 of 1996 is quashed and that of the judgment and order dated 9.2.1996 passed by the Prescribed Authority, Aligarh in U.P. U.B. Case No. 35 of 1988 is upheld. No order as to costs.
Dated 22.9.2010 CPP/-