Heard Sri B.N. Agarwal, counsel for the petitioners and Sri Dharam Pal Singh, learned senior counsel assisted by Sri Ravi Shanker Pathak on behalf of respondent no.1.
The instant petition is directed against the order dated 17.6.2005 passed by Rent Control and Eviction Officer (respondent no.2) rejecting the release application of the landlords filed under Section 16 (1) (b) of U.P. Act No.13 of 1972 (for short 'the Act') and the order dated 14.11.2008 passed by the revisional court dismissing the revision.
In brief the facts of the case are that Hari Ram Chimedia, predecessor-in-interest of the petitioners filed an application under Section 16 (1) (b) seeking release of the western portion of residential building (House No.6 - New No.49, Mohalla Nainagarh, Jhansi), which was earlier in tenancy of one Ramesh Chandra Jain and was declared vacant on 25.2.1985. The release application was rejected by the Rent Control and Eviction Officer by order dated 25.2.1985 and the premises was allotted to respondent no.1 Suresh Chand Lahoria. The order rejecting the release application and allotting the premises to respondent no.1 was challenged in revision, but which was also dismissed on 15.10.1985. The aforesaid two orders were subjected to challenge before this Court by Hari Ram Chimedia by filing Writ Petition No.18574 of 1985. He died during pendency of the writ petition. This Court allowed the writ petition by judgment dated 17.2.1994 and quashed the order dated 25.2.1985 rejecting the release application as well as the order dated 15.10.1985 dismissing the revision and directed the Rent Control and Eviction Officer to decide the matter afresh, taking into consideration the changed circumstances after the death Hari Ram Chimedia.
After the matter was remanded by this Court to the Rent Control and Eviction Officer, petitioner no.2 Anil Kumar one of the sons of Late Hari Ram Chimedia filed his affidavit stating that the eastern part of the house is in possession of his Bua Smt. Bharti Devi and her family, his mother Smt. Mani Bai, and his two sons Atul and Avinash. The accommodation in their possession comprises of only one room, kitchen, Pooja Ghar and store room. He also stated in paragraph 8 of his affidavit that he himself is residing in House No.52, Nainagarh Nagra, Jhansi alongwith his wife Smt. Shyama and third son Abhitabh. He has in his possession only two rooms in the said house. His sons are all major and in future they would be married. However, because of paucity of residential accommodation, he is unable to solemnize their marriage. Under compelling circumstances, two of his sons namely Atul and Avinash are residing in the eastern part of House No.6, which is part of the same building in respect whereof vacancy has been declared. He, therefore, pleaded that the disputed house in which there are three rooms, be released for the residential need of his family. The Rent Control and Eviction Officer by impugned order dated 17.6.2005, rejected the release application observing that three sons of Late Hari Ram Chimedia namely Shailesh Chimedia, Sunil Chimedia and Sushil Chimedia are residing in Bombay. The case set up in respect of their need that they would shift to Jhansi and start their business at Jhansi and consequently require the disputed house was repelled by observing that the proceedings had remained pending since a long time but during this period, none of them have shifted to Jhansi. Thus, their need is not bonafide.
The Rent Control and Eviction Officer has also observed that Anil Kumar is already residing in House No.52 at Jhansi and his father's sister, who is residing in eastern part of House No.6, is not member of family of the landlords. She also has her own house No.25/4, Isai tola, Jhansi. The landlords have also let out House No.7/1 to Dr. Jagdish Sharma and House No.7/2 to Bhopali Halwai some time back and had thereafter also sold the same and as such their need is not bonafide.
The revisional court has also taken virtually the same view except that it has also observed that the ration card and other documents got prepared by the aforesaid three sons of Hari Ram Chimedia does not establish that they have actually shifted to Jhansi or intend doing any business from Jhansi. The revisional court has further observed that the landlords have not disclosed the extent of accommodation in their possession in House No.6. It has also been observed that Smt. Bharti was earlier living in her husband's house. The fact that she shifted to eastern part of House No.6 proves that the landlords have no bonafide need for the disputed premises. It has also been observed that the reason given for shifting Smt. Bharti to the eastern portion of House No.6 is not satisfactory.
Learned counsel for the petitioners submitted that the Rent Control and Eviction Officer has taken into consideration the objection and evidence filed by the prospective allottee while rejecting the release application. According to him, the objection nor the evidence filed by the prospective allottee could be taken into consideration while considering release application under Section 16 (1) (b). He further submitted that Building No.7/1, which was allegedly let out to Dr. Jagdish Sharma and House No.7/2 to Bhopali Halwai were non-residential accommodations (shops) while the need set up was for residential purposes. He also urged that the need set up by Anil Kumar in his affidavit filed before the Rent Control and Eviction Officer dated 6.7.2001 after remand of the case by this Court has not been taken into consideration in the correct perspective and consequently the impugned orders stand vitiated.
On the other hand, Sri D.P. Singh, learned senior counsel appearing on behalf of respondent no.1 submitted that the objection nor documentary evidence filed by respondent no.1 has been considered while rejecting the release application. According to him, although the Rent Control and Eviction Officer has noticed about filing of the objection but the same has not been relied upon while rejecting the release application. He further submitted that once the courts below have returned a finding that need of the landlord is not bonafide, the instant petition deserves to be dismissed.
In Smt. Shanti Devi Vs. Vth Additional District Judge and others, 2008 (2) ARC 692 this Court has held, after considering a large number of earlier decisions of this Court, that a prospective allottee has no right to contest release application filed by landlord under Section 16 (1) (b) of the Act. The authority may place reliance on any evidence and follow any procedure to collect evidence as it may choose in the facts of a given case, but the prospective allottee is not entitled to lead evidence nor object to the release of the premises. He comes into picture only after the release application is rejected. It has also been held that while according consideration to release application under Section 16 (1) (b), the Rent Control and Eviction Officer is not required to consider the extent of accommodation in possession of landlord. He has only to see whether the application is a bonafide or not. It is for the reason that a release order under Section 16 (1) (b) does not involve uprooting of any sitting tenant.
The relevant observations laying down the above law, as contained in paragraphs 9, 10 and 11 of the said judgment, are extracted below:-
"9. Similarly, in Jai Prakash Awasthi V. District Judge, Meerut and another, 1982 (2) ARC 257, it has been held that Rent Control and Eviction Officer is required to consider as to whether an application of landlord is bonafide, it is not for him to assess as to how much accommodation would be sufficient for the need of landlord. This has been followed in Khunni Singh V. District Judge, 1995 (2) ARC 390.
10. The Apex Court considered the said controversy in Vijai Kumar Sonekar v. Incharge District Judge and others, 1995 (2) ARC 1, and held that "a release application under Section 16 (1) (b) is a matter between the landlord and District Magistrate. Prospective allottee (tenant) has no right to resist the landlord in release proceedings. It has taken into account the full Bench decision of this Court in Talib Hussain v. Ist Additional District Judge, 1986 (1) ARC 1 (FB).
11.The upshot of the above discussion is that a prospective allottee has no right to contest the release application filed by a landlord under Section 16 (1) (b) of the Act and while deciding such an application the extent of accommodation in possession of a landlord is not at all germane. Only this much has to be seen that the application is bona fide one."
Again, the same view has been taken by this Court in District President, Bhartiya Janta Party, Aligarh Vs. Hari Ram Gupta, 2008 (2) ARC 312.
It is no more res-integra that prospective allottee has no right to contest the release application or lead evidence opposing the same. A perusal of the order of the Rent Control and Eviction Officer would reveal that although he has noted the objection filed by the prospective allottee but while deciding the issue of bonafide need, the objection filed by him nor evidence led by the prospective allottee has been taken into consideration. As such, the argument advanced by learned counsel for the petitioners in this regard has no relevance to the facts of the instant case.
The main issue for consideration is whether the Rent Control and Eviction Officer was justified in rejecting the release application. As noted above, after remand of the case by this Court to Rent Control and Eviction Officer with specific direction to consider the need in the light of changed circumstances, Anil Kumar one of the sons of the deceased landlord, who is residing at Jhansi, filed his affidavit dated 6.7.2001 and wherein he categorically pleaded that his family comprises of himself, his wife and three sons, all major. His sons would be married in near future but because of paucity of accommodation, he was not solemnizing their marriage. He has also stated in his affidavit that the accommodation in his possession in House No.52, Nainagrah Nagra, Jhansi comprises of only two rooms, which is wholly insufficient to meet his residential need, therefore, under compelling circumstances, two of his sons namely Atul and Avinash are residing in the eastern part of the building in which the disputed premises is located. The Rent Control and Eviction Officer has not at all considered the need set up in this regard in the affidavit of Anil Kumar dated 6.7.2001 except for making a passing observation that Anil Kumar is residing in his own House No.52, Nainagarh Nagra, Jhansi. In fact, the said affidavit was also ignored by the Revisional court when it observed that the landlords have not disclosed the extent of accommodation in their possession in House No.6, whereas in the said affidavit it is specifically asserted in para 3 that the said portion consists of only one room, kitchen, Pooja room and store room. In considered opinion of the Court, the Rent Control and Eviction Officer and the revisional court have committed a manifest error of law in not taking into consideration the need set up by Anil Kumar in respect of his family members in the affidavit dated 6.7.2001.
The Rent Control and Eviction Officer as well as the revisional court have put much emphasis on the fact that eastern part of the building, which is in possession of the landlords, has been permitted to be occupied by Smt. Bharti, sister of Hari Ram Chimedia, the deceased landlord, although she is not member of his family. Both the authorities have failed to appreciate the fact that need set up in the release application was not for residential requirement of Smt. Bharti. The specific case of the petitioners was that their Bua, who was earlier living with her husband in his house, decided to shift to the building owned by her brother Hari Ram Chimedia , under compelling circumstances, as her husband died and her dewar committed suicide. The authorities have doubted the bonafides of the landlord in permitting his sister to occupy part of the building belonging to him. The approach of the courts below is manifestly illegal. A landlord has also social obligations to perform and in case after the death of the husband of his sister, she was feeling insecure and was permitted to live in part of the accommodation belonging to him, it cannot be said that it was for any malafide reason nor would it be sufficient to doubt the need set up in respect of the disputed premises.
Likewise, sale of non-residential accommodation would have no effect on the residential need of the petitioners. The brothers of Anil Kumar have filed evidence to show that they have shifted to Jhansi but even assuming that they are not likely to shift to Jhansi, still the need set up by Anil Kumar having not been considered in the right perspective, this Court is unable to sustain the impugned orders, both of which are accordingly set aside.
The petition is allowed. The matter is remitted back to the Rent Control and Eviction Officer for considering the need of the landlords in light of the observations made above, expeditiously, preferably within a period of three months from the date of receipt of a certified copy of this order. It is clarified that while considering the need of landlords, the objection filed by the prospective allottee nor the evidence led by him, would be considered.
(Manoj Kumar Gupta, J) Order Date :- 25.2.2019 SL