Heard Sri Prashant Singh Gaur, counsel for the petitioner and Sri Abdul Rasheed, counsel for the respondent.
By means of the present writ petition, the petitioner has challenged the order dated 23.02.2000 (Annexure-1) passed by VIth Additional District Judge, Lucknow.
Controversy involved in the present case relates to a portion of a house bearing Municipal No. 90/12, Jogendra Pathak Road, Mohall-Maqboolganj, P.S. Husainganj, City-Lucknow in tenancy of Sri Shiv Nath/O.P. No. 3 at a monthly rent of Rs. 12/- (hereinafter referred to as the premises).
On 29th July, 1998, a release application under Section 21(1)(a) of Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act) moved by Smt. Haseena and other landlord/landlady. In the said release application, the family member of the petitioner/applicant are mentioned as under:-
Further, in release application, petitioners had mentioned that the portion with them constituted of a room, a barandah a Kitchen and a Latrine - bathroom, the total built-up area measuring about 375 Sq. ft, not appropriate for decent living, so the premises be released in their favour and in paragraph No. 12 of the release application, it is also mentioned as under:-
"Para No. 12 - That it is to point out that the entire premises in question is in very dilapidated condition, plaster has given away and the ceiling profusely seeping. Moreover, almost half of the total built-up area of 306 square feet has already been collapsed. Thus, it is apprehended that the remaining old construction may also collapse any moment and cause loss for the life, but for the reluctance of the opposite party the applicants are unable to demolish and reconstruct the same."
Accordingly, a PA Case No. 182 of 1998 registered before the Additional Civil Judge (Sr. Div.)/Prescribed Authority, Lucknow written statement filed on behalf tenant/respondent in the month of November, 1998 (Annexure-IV to the petition), in paragraph No. 9 of written statement the details of the family member as mentioned, is reproduced hereinbelow:-
"Para 9 - That the family of the opposite party comprises of first four members ; the opposite party, his wife, a married daughter and a son, aged about 18 years, And they are residing in a room and a tin-shed which are also in dilapidated condition."
In paragraph No. 13 of the written statement, it is stated that in case if the tenants/respondents evicted from premises in question they will suffer a greater hardship in comparison to the landlord/owner. Lastly, in paragraph No. 20 of the written statement, the plea taken is as under:-
"Para- 20 - That if the building is in dilapidated and it requires demolition for a new constructions, the under section 21(1)(b) and under Section 21(1)(d) it is misguidance with the court to have order of eviction as such under the present cause of action and ground the case is not maintainable and is liable to be rejected"
Thereafter a commission was sent on the request of party concerned submitted report (Anenxure No. VIII to the writ petition). After hearing counsel for the parties, the Prescribed Authority vide order dated 20.10.1999 allowed release application while allowing the release application, Prescribed Authority gave a finding that in the family of the petitioners/landlords there are 11 persons whereas in the family of the tenant/respondent there are 6 persons, the wife of the tenant/respondent No. 3 had already died, his one daughter Smt. Chhaya married to one Sri Ram Chander, out of their wedlock two sons were borne namely Sandeep and Deepak, after death of Smt. Chhaya another daughter Maya married to Sri Ram Chander.
In view of the said facts, married daughter (Smt. Maya) as well as two grand sons namely Sandeep and Deepak does not come within ambit of family of tenant as per provisions of Section 3(g) of the Act. Accordingly the family of tenant constitutes of Sri Shiv Nath (tenant), one daughter Sunita, so the bona fide need and comparative hardship of the petitioners/landlords are more genuine in comparison to tenant.
Prescribed Authority has also held that if a tenant is evicted from a premises hardship will be suffered by him but it cannot be a ground for not evicting him when as per the material on record need of landlords/petitioners is genuine and bona fide.
Shiv Nath (tenant)/O.P. No. 3 thereafter filed an appeal under Section 22 of the Act (Rent Appeal No. 33 of 1999), allowed by order dated 23.02.2000. In brief, finding recorded by the appellate court while allowing appeal are as under:-
(a) In House No. 90/12 in which premises in dispute is situated, landlords/petitioners in addition to accommodation with them also got a possession although in dilapidated condition but after reconstructing it they can live therein, which satisfy their need. .
(b) Tenant has got no other accommodation at his disposal, financial status is not such that he can arrange another accommodation, keeping in view the said fact, and that landlords after reconstructing portion of the premises in their custody can live, so the need of tenant is more genuine and bona fide.
(C) Landlord/appellant moved release application with intention to get the premises vacated from the tenant/respondent No. 3 in order to sell it at high price.
Aggrieved by order dated 23.02.2000, passed by appellate authority, present writ petition filed before this Court under Article 226 of the Constitution of India.
Sri Prashant Singh Gaur, learned counsel for the petitioner while assailing the impugned order submits that the finding given by appellate court that the landlord should construct the accommodation in their possession, their need will be satisfied is totally incorrect and wrong finding rather unsustainable in view of the law as laid down in the following cases:--
(i) Abdul Sattar Vs. XIIIth Additional District Judge, Kanpur Nagar and others, 1991 (1) ARC 205
(ii) Nand Kishore Sahani Vs. VIIth Additional District Judge, 2005 (2) ARC 585
(iii) Shashi Bala pathak Vs. District Judge, 2005 (59) ALR 243 He further submits that finding given by appellate court while allowing appeal of tenant/respondent that in case if the tenant/respondent evicted from the premises in question he will suffer a greater hardship, as he has no means to search for an alternate accommodation to live is totally incorrect finding, cannot sustain in view of the following judgments:-
(i) Naeem Ahmad Vs. Abdul Majeed, 2005 (2) ARC 118
(ii) Jagdish Tiwari Vs. Asha Devi Mishra, 2005 (1) ALR 708, 2005 (59) ALR 256 (Para-4)
(iii) Ramesh Chandra Vs. 1st Additional District Judge, Dehradoon, 2005 (1) ARC 812
(iv) Ram Ji Jaiswal Vs. Additional District Judge, 2005 (2) Arc 470 Sri Prashant Singh Gaur submits that plea as raised on behalf of the respondent that the petitioners have got another accommodation in the same Mohalla/area cannot be a ground to reject their application of release as tenant cannot dictate a term to landlord in which manner they live rather the landlords are the best judge to decide accommodation in which they want to live. In this regard he rely on the following judgment:-
(i) Kallumal Vs. VIIIth Additional District Judge, Meerut and otehrs, 2005(3) ARC 682 Lastly, learned counsel for the petitioner submits that since the date of moving of the release application, the tenant has not made any effort to search an alternate accommodation, as such comparative hardship and bona fide need tilted against him. So, order passed by appellate court is liable to be set aside,release application may be allowed.
Sri Abdul Rasheed, counsel for respondent, while supporting the impugned order submits that appellate authority after going through the material on record had come to the conclusion that accommodation in the possession of petitioner is sufficient to meet their need. Moreover, after construction of one of the portion of house in which premises in dispute is situated, need of the landlord will suffice, tenant/respondent has no other accommodation except the accommodation in question, his financial status is not to shift to another accommodation, need of the tenant/respondent is more genuine and bona fide in comparison to the landlord/petitioner.
Sri Abdul Rasheed, learned counsel for the respondent also submits that as per Commissioner Report it is establish that in the house in question in where premises in dispute is situated petitioners are keeping their goats and fodder. So, their need in the present case is not bona fide.
Learned counsel for the respondent on the basis of supplementary affidavit filed during the course of argument submitted that in addition to the accommodation in question, petitioners have two other house namely House No. 89/43 (New No. 89/52) and 89/44 Shutur Khana, Maqbool ganj City of Lucknow. So, application moved by them under Section 21(1)(a) of the Act is not maintainable.
Learned counsel for the respondent, lastly argued that in the present case although the petitioner has moved an application for release of the premises under the provisions of section 21(1)(a) fo the Act but from the pleadings as made paragraph No. 12 it is clearly established that the premises in question is of dilapidated one so, release application moved by them is not maintainable under Section 21(1)(a) but the same is under Section 21(1)(b) and for adjudication of the application in the said two section the rules applicable are different i.e. Rule 16 and Rul1 7 respectively as framed under the Act. Keeping in view the said facts and also taking into consideration that the need of the landlord is not genuine and bona fide, appellate court has rightly allowed appeal, so no interference is called for in the present case liable to be dismissed. In support of his argument he relied on the following judgments,
(i) Baij Nath Malhotra Vs. Amlok Ram Khanna and others, 1976 (U.P.) RCC pages 81-82.
(ii) Abdul Majid Vs. Abdul Samad and others, 1976 (U.P.) RCC -pages 46-47
(iii) Nutan Kumar Vs. IInd Additional District Judge 1993 (11) LCD 1027.
I have heard the counsel for the parties and gone through the record.
So far factual matrix of the present case is concerned it is not disputed between the parties that respondent No. 3 is a tenant in a portion/premises in dispute which is a part of House No. 90/12, Jogendra Pathak Road, Mohall-Maqboolganj, P.S. Husainganj, City-Lucknow at a monthly rent of Rs. 12/-.
A release application moved, allowed by prescribed authority by order dated 10.12.1999 thereafter an appeal filed by the tenant allowed. While allowing the appeal, finding given by appellate court that in addition to accommodation in the possession of the petitioners/landlords in the same house they have another premises in dilapidated condition after reconstructing cater their need, so the need of landlords to get premises in dispute under tenancy of respondent No. 3 is neither genuine nor bona fide is concerned, is totally is nincorrect and wrong rather contrary to admitted fact of the present case as the family of the landlord/landlady consists of 11 persons whereas as per the version of the tenant/respondent written statement their family consists of six persons. However in this regard the trial court had given a finding that the wife of the tenant has died, his one daughter Smt. Chhaya initially married to one Sri Ram Chander and her death (Smt. Chhaya) Maya married to Sri Ram Chander. So, Smt. Maya, Sandeep and Deepa, the grand sons of the tenant cannot taken as his family member, thus his family consists of two persons namely tenant (himself) and Kr. Sunita, daughter. The said finding has not been set aside or proved to be wrong by appellate authority. Keeping in view the said fact and the law on the point that neither court nor tenant can direct that in what manner a landlord can live in an accommodation and the landlord is the best judge to see his requirement, in what manner to live therein, the finding in question recorded by appellate court while allowing the appeal beside being perverse in nature, unsustainable in view of the law as laid down in the case of :-
(i) Nand Kishore Sahani Vs. VIIth Additional District Judge, 2005 (2) ARC 585 (ii) Shashi Bala pathak Vs. District Judge, 2005 (59) ALR 243 (iii) Ramesh Chand Vs. Ist Additional District Judge, 2005 (1) ARC 182.
In the case of Ragavendra Kumar Vs. Firm Prem Machinery & Co., (2000) 1 SCC 67, it has been held:-
"It is settled position of law that the landlrod is best judge of his requirement for residential or business purpose and he has got complete freedom in the matter), (See-Prativa Devi (Smt.) Vs. T.V. Krishnan) in the case in hand the plaintiff landlord wanted eviction of the tenant from the suit premises for starting his business as it was suitable and it cannot be faulted."
(iv) In the case of Ramji Jaiswal Vs. Additional District Judge and another, 2005 (2) ARC 470, it has been held as under:-
"Accordingly, the view of the Lower Appellate Court with regard to right of landlord to use the entire house in question is erroneous in law and the same is set aside. The prescribed authority had held that in view of the number of family members of landlord and the availability of accommodation in the house in question to him (i.e. half of the house in question) the need of the landlord was quite bona fide for additional room. In fact Appellate Court did not disagree with the said findings. The Appellate court held the need of the landlord to be not bona fide only on the ground that the entire house in question was available to the landlord. This aspect was also almost the entire basis of finding of Lower Appellate Court in respect of comparative hardship. As I have held in the earlier part of this judgment that only hlf of the house in question can be said to be available to the landlord, hence the view of the Lower Appellate Court on the tenant was using ground floor of his three stories building in connection with the same business which he carried out from the shop in dispute i.e. laundry (washing of clothes). Lower Appellate Court also held that house of the tenant is situated in a Gali while shop in dispute is situated on the road. It is correct that shifting of the business may cause some inconvenience to the tenant. However, it cannot be a ground for holding that tenant would suffer greater hardship in comparison to landlord. There is one more aspect of the matter. Tenant did not show that what efforts he made to search alternative accommodation after filing of the release application. This by itself is sufficient to decide the question of comparative hardship against the tenant vide B.C. Bhutada Vs. G.R. Mundada, AIR 2003 SC 2713.
Next point on which appellate court allowed appeal filed by the tenant that the landlords who are residing have sufficient accommodation to live and tenant has got no other premises to live, his financial condition is also such that he could not search for alternate accommodation, coupled with the fact that the landlords can very well live after reconstructing the portion in dilapidated condition in some house in which premises in question exist is also untenable and incorrect findings rather contrary to law as laid down by Hon'ble Supreme Court in the case of Sarla Ahuja Vs. United Insurance Company 1999 SC Page 100, has held as under:-
"The crux of the grotand envisaged in clause (e) of Section 14(1) of the Act is that the requirement of the landlord for occupation of the tenanted premises must be bona fide. When a landlord asserts that he requires his building for his own occupation the Rent Controller shall not proceed on the presumption that the requirement is not bona fide. When other conditions of the clause are satisfied and when the landlord shows a prima facie case it is open to the Rent Controller to draw a presumption that the requirement of the landlord in bona fide. It is often said by courts that it is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without getting 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."
In the case of Kallumal Vs. VIIIth Additional District Judge, Meerut and others, 2005(3) ARC 682, it is held as under:-
"The whole approach is erroneous in law and cannot approved. Even tenant cannot dictate the landlord to adjust his family in small accommodation let alone the Court. The Appellate Court has played the role of either Rationing Officer or Interior Decorator. The judgment of the Lower Appellate Court clearly shows that the learned Court was fully satisfied about the need of the landlord, however, in order to protect the tenant from their eviction, he suggested the means through which landlord could squeezes himself, his family and his house hold goods in the accommodation available to him. It has been held by the Supreme Court in Sarla Ahuja Vs. United Insurance Company 1999 SC Page 100(Para 14), that "It is often said by courts that it is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without getting 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."
The said view again reiterated in the case of Brahmam Kumar Vs. Raja Ram, 2006 (1) ARC 93 So far as the finding given by appellate court that if the tenant is evicted from the premises in question, the same will be caused in convenience to him is also erroneous and incorrect finding in view of the law as laid down by this Court in the case of Jagdish Tiwary Vs. Smt. Asha Devi Mishra, 2005(59) ALR 256, as under:-
"Learned counsel for the petitioner thereafter submitted that the appellate authority has not dealt with the question of comparative hardship and summed up only in one small para that the need of the landlady cannot be brushed aside merely on the ground that if the application is allowed, tenant will suffer hardship of eviction. In view of the law laid down by this Court in the case of Sanjay Kumar (Supra), in my opinion, the view taken by the appellate authority is correct."
The same view was again reiterated in the case of Gopal Das Vs. Rahmat Ali and another, 2008 (3) ARC 671 "In my opinion, the lower Appellate Court was under the impression that bona fide need under Section 21 of the Act meant dire need. If landlord alsong with his family is some howe managing in a small portion, then his need cannot be said to be not bona fide. The purpose of Section 21 of the Act is not to compel the landlord to squeeze his family in a small accommodation so that tenant may enjoy the tenanted accommodation and he might not be evicted. If landlord wants to reside a bit comforably then the need does not go beyond the sphere of bona fide need. In such sitaution need does not become only desire but still remains need. Supreme Court in Siddalingama Vs. M. Shenoy, 2002 (46) FLR 18 (SC) : 2002 SCFBRC 17, has held that the entire Rent Control Act is meant for the benefit of the tenants. Provision of release on the ground of bona fide need is the only provision which treats the landlord with some sympathy."
And in the case of Abdul Sattar Vs. XIIIth Additional District Judge, Kanpur Nagar and others, 1991 (1) ARC 205, "True, in every case of release some inconvenience is bound to be caused to the tenant but that does not stand as a bar in the way of the Prescribed Authority in passing and order of release in favour of the landlord. In a case reported in 1986 SCFBRC 346, Smt. Bega Begum Vs. Abdul Ahed Khan and others, while considering a similar question the Court took the view that Rent Control Act is a social piece of legislation enacted to solve accommodation problems. It gives protection to the tenants from profit earning landlords, but at the same time also gives protection to the landlords whose need was bona fide and genuine. The Court further observed that owners of the house cannot be denied release in case they are able to prove their bona fide need. Under these circumstances they cannot be compelled to live below the poverty level. They have a right to imporve their financial position by setting their own business. In the instant case, the landlady had a bona fide need for release of the accommodation to establish her son Accey Babu in business.
Further from the document on record, it is transpired that since the date of moving the release application, no efforts has been made by the tenant/respondent to search for the alternate accommodation,rather the said facts admitted by the learned counsel Sri Rasheed Ahmad appearing on behalf of the tenant but he submits that as the tenant is a poor person got no means to afford another accommodation cannot be a ground to disentitle petitioners to get their release application allowed because it is well settled proposition of law if the tenant did not make any effort to search an alternative accommodation immediately after filing of the release application, the said facts are sufficient to tilt the balance of the comparative hardship against the tenant and the need of the landlord is to be held to be bonafide. In this regard the Hon'ble Supreme Court in the case of B.C. Bhutada Vs. G.R. Mundada, A.I.R. 2003 SC 2713 has held that bona fide requirement implies an element of necessity. The necessity is a necessity without regard to the degree to which it may be. For the purpose of comparing the hardship the degree of urgency or intensity of felt need assumed significance.
In the case of Salim Khan V. IVth Additional District Judge, Jhansi and others , 2006(1) ARC 588 this Court has held as under:-
"In respect of comparative hardship, tenant did not show what efforts they made to search alternative accommodation after filing of release application. This case sufficient to tilt the balance of hardship against them Vide Bhutada V. G.R. Mundada 2003 Supreme Court 2713; 2005(2) ARC 899. Moreover, rent of Rs. 6/- per month which the tenants are paying is virtually as well as actually no rent. By paying such insignificant rent they must have saved a lot of money. Money saved is money earned. They must, therefore, be in a position to take another house on good rent. Further, they did not file any allotment application for allotment of another house. Under Rule 10(3) of the Rules framed under the Act, a tenant, against whom release application has been filed, is entitled to apply for allotment of another house immediately. Naturally such person is to be given preference in the matter of allotment. Respondents did not file any such allotment application. Thus, the question of comparative hardship has also to be decided against the tenants."
In the case of Jagdish Chandra Vs. District Judge, Kanpur Nagar and others 2008 2 ARC 756 this Court after relying on the judgment given by the Apex Court in the case of Bega Begam and others Vs. Abdul Ahad Khan 1979 AIR SC 272 :1986 SCFBRC 346 held as under :-
"In every case where an order of eviction is passed the tenant will come on the street. The fact that all tenants will come on street if eviction is ordered, is not at all relevant for consideration of a comparative hardship of the respective parties. It is for the tenant to find out alternative accommodation. In absence of any material to show that any attempt was made by the such tenant to find out alternative accommodation release application cannot be rejected on ground that such tenant would suffer greater hardship if the release application is allowed."
In view of the above said facts as in the instant case admittedly tenant/respondent did not make any effort to find out alternative accommodation after moving of the release application, the orders passed by appellate authority allowing appeal on the basis of the findings that the need of the landlord/petitioner is less bonafide and genuine in comparison to the tenant-respondent is contrary to law, liable to be set aside.
So far as argument advanced by learned counsel for the respondent that release application moved by the petitioners under Section 21(1)(a) of the Act not maintainable in view of the pleading as made in paragraph No. 12 of release application, same is to be filed as per the provisions provided under Section 21(1)(b), and the Rules in respect of the said two provisions are different wholly misconceived and wrong as from the perusal of the release application it is clearly established that he same has been moved for the personal need of the petitioners and in para 12, it is stated that some of the portion of the house in which the premises under tenancy of the tenant, also exist is in dilapidated condition requires repair, in no manner dis-entitle the petitioners to move an application under Section 21(1)(a) of the Act, as such in the present case, the Rule 16 of the Rules framed under the Act will apply because while considering the said rule Apex Court in the case of Ganga Devi Vs. District Judge, Nainital and others, 2008(2) ARC 584 held that :-
"The Court would not determine a question only on the basis of sympathy or sentiment. Stricto sensu equity as such may not have any role to play."
further it is settled proposition of law that the equity follows law and so does sympathy. Accordingly, if the factors mentioned in Rule 16 of Rules are considered, taking into consideration the facts of this case, no doubt it is an old tenancy but there is nothing to show any real efforts were made by the tenant to find another accommodation despite the fact that even the application for release has been moved. So, the argument advanced by learned counsel for respondent that petitoienrs have other accommodation available with them in some Mohall/area. So their need is neither bona fide nor genuine is also incorrect in view of the facts stated hereinabove, coupled with the fact that landlord is the best judge of his requirement and the courts and tenants have no concern to dictate the landlord as to how and in what manner he should live [See:- case of Govind Narain Vs. 7th Additional District Judge, Allahabad and others [2008(1) ARC 526] and Rani Devi Jain Vs. Badloo and another[2008 (3) ARC 351]. Accordingly, release application moved by the petitioner is liable to be allowed, order passed by appellate court to be set aside. Further, the respondent he cannot derive any benefit from the cases namely; (i) Baij Nath Malhotra Vs. Amlok Ram Khanna and others, 1976 (U.P.) RCC pages 81-82 (ii) Abdul Majid Vs. Abdul Samad and others, 1976 (U.P.) RCC -pages 46-47 (iii) Nutan Kumar Vs. IInd Additional District Judge 1993 (11) LCD 1027. On which he has placed reliance as the facts of the said case are different and got no application whatsoever in the facts and circumstances of the present case.
Lastly, in the case of Rani Devi Jain Vs. Badloo and another[2008 (3) ARC 351], this Court has held that when the release application has been rejected by the court below and High Court in writ jurisdiction finds the judgment to be erroneous in law, it is not always necessary to remand the matter. Ultimate relief can be granted to the landlady in the writ petition itself vide AIR 2002 SC200: 2001(2) ARC 603:2001 SCFBRC 541, G.C. Kapoor V. N.K. Bhasin and Ram Kumar Barnwal V. Ram Lakhan, 2007 AIR SCW 3250:2007 SCFBRC 346: 2007(2)ARC577. In the first authority release application rejected by the prescribed authority , Appellate Court and High Court was finally allowed by the Supreme Court. In the second authority a judgment of the High Court was reversed through which writ petition of the landlord directed against concurrent judgment against him was dismissed by observing that fresh release application could be filed by the landlord. Supreme Court held that High Court should have finally decided the matter and remanded the case to the High Court for the said purpose.
For the foregoing reasons, the writ petition is allowed, judgment passed by Appellate Court dated 23.02.2000 (Annexure-1) set aside, judgment passed by Prescribed Authority dated 20.10.1999 restored and release application is allowed.
No order as to costs.
Order Date :- 11.2.2011 Ravi/