Sita Ram v. 6th Additional District Judge, Meerut — 1978 DIGILAW 547 (ALL)

JUDGMENT Devki Nandan, J. :- This is a tenant's writ petition in a proceeding under section 21 of the U.P. Urban Buildings (Regulation of Letting Rent and Eviction) Act, 1972 (hereinafter referred to as the Act). The Prescribed Authority allowed the application of respondent no. 3 Rajendra Kumar Jain by an order dated November 30, 1976 on the findings : (1) that the need of the applicant is genuine for the shop in dispute as his son is out of employment after 30-11-1976 : (2) That the need of the applicant is mere pressing than the need of the landlord ; (3) That the rent deed or the agreement dated 20-1-1966 had no effect, as it was un-registered and not admissible in evidence. The application was, however, allowed on two conditions (1) that the applicant's son will file "the relieving certificate of his house job from Delhi hospital within 30 days;" and (2) the applicant will give an amount of Rs. 1440/- to the opposite-party (2 years rent) as compensation. The tenant appealed to the District Judge, Meerut. The appeal was heard by the Additional District Judge, Meerut, who dismissed the same by an order dated May 18, 1977. The learned Additional District Judge considered the arguments and the pleadings of the two parties before him, and held' (1) that it is not established on the basis of fresh evidence filed before him that the premises owned by the applicant's son Dr. Avdesh Kumar which had fallen vacant about 2 months ago, was used as a godown and consequently the allegation of tenant-appellant that another premises had fallen vacant was without force; (2) that the house job of the applicant's son Dr. Avdesh Kumar had ceased with effect from December 3,1976 and he had come to Meerut and had no premises to start his practice and, therefore, instead of wasting his time due to the present litigation, be preferred to utilise the same by joining the diploma course, which fact did not, therefore, affect the applicant's case adversely; (3) that the property in question was owned by the Hindu Joint Family of which the applicant's son Dr. Avadesh Kumar is also a "Cosharer", but the relationship of the landlord and the tenant had been established between the parties and, therefore, Dr. Avadesh Kumar is also a "Cosharer", but the relationship of the landlord and the tenant had been established between the parties and, therefore, Dr. Avadesh Kumar could not be said to be the landlord although he is a co-owner and accordingly it was not necessary that he should have joined as a party to the proceedings or should have signed the memorandum of appeal ; (4) that the fact that Dr. Avadesh Kumar, the son the applicant owned other shops also did not held the tenant-appellant as it is the choice of the applicant himself to select the premises suitable for his own use, for the purposes of making an application under section 21 of the Act ; (5) since it was for the applicant under section 21 to choose the place suited for his son's practice; the consideration that Kabari Bazar is a densely populated locality and, there afore, not fit for medical practice, did not help the tenant-appellant and had no force; (6) that no doubt in the instant case, it is proved that the disputed shop is the only shop available with the tenant-appellant, who is carrying on his business of cloth and is the only source of livelihood and it is also proved on record that he has no other alternative accommodation to shift his business and, therefore, the eviction of the appellant will affect him adversely", on the other hand "it is also proved that the son of respondent (applicant under section 21) has acquired technical education as M.B B.S. and is out of practice and job for want of any accommodation to start his practice;" that he too has no other alternative accommodation and in case he is not allowed to occupy the shop his career will also be ruined and a doctor will be out of job. "It will not only create frustration among the doctor, but will be hard hit if his application is refused. "It will not only create frustration among the doctor, but will be hard hit if his application is refused. "In this background of facts found by the learned Additional District Judge, he proceeded to hold that" the appellant may find out some of the other accommodation to get his business shifted, but on the other hand, it is the question of the life of the son of the respondent" and "in this view the comparative hardship on the parties will be more in disallowing the application rather than allowing the application"; that on an analysis of the comparative need of the parties, one can only conclude that the hardship is more in rejecting the application than in allowing the application " "The appellant should have and could have found out some alternative accommodation"; however the "hardship can be minimised by granting four months' time," in which time he could apply for allotment of some other shop". The learned Additional District Judge also observed that it is well settled that mere inconvenience will not be considered to be hardship and the ends of justice would be met if the appellant was granted four months' time to find out alter-native accommodation and get his business shifted. "On the question about the effect of the rent note between the parties according to which it was alleged by the tenant-appellant that the applicant had no right to eject him, the learned Additional District Judge relied upon the fact that it was un-registered and the benefit of section 53 of the Transfer of Property Act could not be availed of for the purpose of proceeding under section 21 of J.P. Act No. XIII of 1972. 2. Mr. H. S. Josbi, learned counsel for the petitioner has urged before me that; (1) neither of the two authorities below have considered and compared the respective hardships of the petitioner and respondent no. 3, in the manner required by law and accordingly their finding that the need of respondent no. 3 was greater than that of the petitioner, was vitiated by an error of law apparent on the face of the record; (2) that on the finding that the shop in question was owned by the Joint Hindu Family, the applicant who is the Karta of the family and not the owner of the shop would not take advantage of the provision of clause (2) of sub. section (1) of the section 21 of the Act which provided that the building is bona fide required ........... by the landlord for occupation by himself or any member of his family, or any person for whose benefit it is held by him, either for residential purposes or for purposes of any profession, trade or calling, or where the landlord is the trustee of a public charitable trust, even if it were assumed for the purposes of argument that the shop was bona fide needed for setting up the applicant's son in medical practice; (3) that medical education is not "technical education" within the meaning of clause (d) of Rule 16 (2) of the U P. Urban Buildings (Regulation of Letting Rent and Eviction) Rules, 1972 (hereinafter referred to as the Rules); and (4) that in any view of the matter the application made by respondent no. 3 was liable to be dismissed as it was not at all established that the hardship which respondent no. 3 was likely to suffer by not getting the shop for the occupation of his son for purposes of setting him up in the medical profession, was nothing when compared to the hardship which the petitioner-tenant was bound to suffer by his being evicted from the shop and which had been recognised by the Prescribed Authority and even by the learned Additional District Judge in no mistaken terms. 3. Mr. S. S. Bhatnagar, learned counsel for respondent no. 3 on the other hand urged; (1) that the findings recorded by the learned Additional District Judge on the question of the comparative hardship and need of the two parties was a finding on a question of fact and could not be interfered with at all by this Court on a petition under Article 226 of the Constitution of India; and in this context he strongly relied on the decision of the Supreme Court in Munni Lal and others v. Prescribed Authority and others, AIR 1978 Supreme Court 29 that the applicant respondent no. 3 was the landlord for the purposes of section 21 of the Act although the building in question was owned by the Joint Hindu Family of which he was the Karta and accordingly his application for the release of the building for the purposes of setting up his son in the medical profession was justly maintainable under clause (2) of section 21 (1) of the Act, and in support of this argument he relied on the decision of a learned Single Judge of this Court in Laxmi Shanker Misra v. District Judge Allahabad and others, 1976 (U.P.) R.C.C. 264 and (3) that medical education was technical education within the meaning of clause (d) of Rule 16 (2) of the rules, and in support of this proposition also he relied on the office memorandum issued by the Government of Uttar Pradesh, dated May 31, 1969, ruling that medical education was technical education for the purposes of allowing withdrawals from provident fund of Government employees. 4. Mr. Bhatnagar also contended that even if the finding of the learned Additional District Judge on the question of comparative needs of the parties was considered not open to question in this Court, the requirements of the proviso to sub-section (1) of section 21 of the Act was merely that the Prescribed Authority shall take into account the likely hardship of the tenant and the landlord and shall for that purposes have regard to the prescribed factors, and if the prescribed Authority or the District Judge on appeal, have in fact taken the same into consideration, it is not for this Court under Article 226 to substitute its own judgment for the judgment of the Prescribed Authority of the District Judge, for determining whether the need of the landlord was greater than that of the tenant. He urged that the learned District Judge has carefully considered the respective needs and hardships of both of the parties and has come to a finding in favour of the applicant respondent no.3 and that it cannot be said that his finding is in any way illegal or so manifestly of so palpably absurd as to justify interference by this Court under Article 226 of the constitution. 5. Now, taking these points in the reverse order, and taking the last point raised by Mr. Bbatnagar first, it is necessary to state some facts. Admittedly Dr. 5. Now, taking these points in the reverse order, and taking the last point raised by Mr. Bbatnagar first, it is necessary to state some facts. Admittedly Dr. Awadesh Kumar, the son of the applicant-respondent no. 3 is individually himself the owner and landlord of 10 shops detailed in paragraph 5 of the objections filed by the tenant before the Prescribed Authority. It was stated in the affidavit of the applicant-respondent with reference thereto, that none of those shops is vacant and those shops are also no suitable because they are very small and that the shop in question, that is, the shop in respect of which the present proceedings under section 21 have been taken, is two Khani measuring 16'x 23'-6' and is most suitable for medical practice, and that Dr. Avadhesh Kumar Jain is as much a coparcener member of the family, as the applicant (Which according to the own case of the applicant owns the shop in question). Now, the manner of in which this point has been dealt with by the learned Additional District Judge may be seen. In paragraph 13 of the order, the learned Additional District Judge, has, after finding it proved that the disputed shop is the only shop available with the tenant-appellant and that he has no other alternative accommodation to shift his business there-from will affect him adversely, proceeded on to give the following reasons for holding the hardship suffered by the landlord will be greater in refusing the application than the hardship likely to be suffered by the tenant in allowing the application: "on the other hand, it is also proved on record that the son of the respondent has acquired technical education as M.B B S. and is out of practice and job for want of any accommodation to start his practice. He too has no other alternative accommodation and in case he is not allowed to occupy the shop his career will also be ruined and a doctor will be out of job. It will not only create frustration among the doctor, but will create frustration among others also. It is not the case where the respondent wants to expand his business, but it is the case of settling down a doctor who has put in hard labour to educate himself. It will not only create frustration among the doctor, but will create frustration among others also. It is not the case where the respondent wants to expand his business, but it is the case of settling down a doctor who has put in hard labour to educate himself. Then the need of the respondent is bona fide and genuine and he too will be hard hit, if his application is refused. In the above background, let me consider the more hardship likely to be created in the instant case. If we look to the circumstances of the case, the appellant may find out some of the other accommodation to get his business shifted, but on the other hand, it is the question of the life of the son of the respondent it this view the comparative. Hardship on the parties will be more in disallowing the application rather than allowing the application. Thus, on analysis of the comparative need of the patties, one can only conclude that hardship is more in rejecting the application, than in allowing the application. The learned prescribed Authority was thus perfectly justified in coming to the said conclusion. The appellant should have and could have found out some alternative accommodation. There is nothing on record that he applied for allotment of the shops, which was not done to them. However, the hardship can be minimised by granting four months' time. "Now the learned Additional District Judge starts with the finding that the tenant has no alternative accommodation and that he would suffer "adversely" if he was compelled to vacate the shop as the business carried on by him therein was his only source of livelihood, but ends by saying that he could get a shop by making an application for allotment and that the giving of four months time to him would mitigate the hardship. The two things are self contradictory. The hardship of a person who is thrown on to the street on being evicted from a house is not minimised by the fact that when he is so compelled to find alternative accommodation to live or to work, he does ultimately find some accommodation. I do not mean to say that if the release order passed in this case is given effect to, the tenant would not in course of time find an alternative accommodation for carrying on his business. I do not mean to say that if the release order passed in this case is given effect to, the tenant would not in course of time find an alternative accommodation for carrying on his business. If he has to carry on business, he will find an alternative accommodation. But that is not the question posed by the proviso to sub-section (2) of section 21 of the Act, for the Prescribed Authority to answer. The question which the Prescribed Authority is required to answer under the proviso to sub- section (2) of section 21, is whether the likely hardship caused to the tenant by granting the application will be greater than the likely hardship caused to the landlord by ref using the application; and it is in this sense that the Prescribed Authority, or the District Judge on appeal, has to compare the needs of the parties, and on such comparison to come to a decision whether to the grant the application or to refuse it. Of course, in doing so the Prescribed Authority or the District Judge must keep the prescribed factors in mind. But that apart, the hardship which the Prescribed Authority or the District Judge are required to consider are objective hardships of the parties and not imaginary or sentimental hardships Now, in considering the hardships of the landlord in this case, assuming that the applicant-respondent was the landlord for the purposes of making the application under section 21 of the Act, his son had to be set up in medical practice at Meerut. The son was married. He and his wife were living in the ancestral house with the applicant-respondent. The applicant-respondent, according to the case set up in his affidavit, and his wife required medical attendance and for that the presence of their son at Meerut was necessary. Now, it has not been suggested any-where by the applicant that the medical practice could not be a carried on by the applicant respondent's son from the ancestral house where he was living. A shop is the last thing which a medical practitioner needs unless he wants to carry on the business of dispensing prescriptions or selling medicines. It could not be said that by not getting the shop, the applicant-respondent's son could not set himself up in medical practice. A shop is the last thing which a medical practitioner needs unless he wants to carry on the business of dispensing prescriptions or selling medicines. It could not be said that by not getting the shop, the applicant-respondent's son could not set himself up in medical practice. The assumption made by the learned Additional District Judge that if the shop in question was not released in favour of the landlord, his son will not be able to set himself up in medical practice, and that a doctor will be out of job and will create frustration in him, are not based on any material on the record, and therefore, the finding on the need of the applicant respondent is manifestly illegal. There is no death of jobs for doctors and in such a situation, not getting the shop in question could not be said to have prevented the applicant-respondent's son in setting himself up in medical practice a, Meerut or from getting a suitable job. It has come in evidence that he was employed as a resident doctor at Delhi and it has not been shown by anything on the record that he would not be suitably employed, unless he started private medical practice and chat too in the shop in question, at Meerut. In this view of the matter also the finding that the refusal of the application for the release would have left the applicant-respondent's son unemployed and would have thus cause. greater hardship to him than to the tenant, is manifestly erroneous in law on the face of the record. In the result, the order of the learned Additional District Judge Meerut has to be quashed for not comparing the likely hardship of the parties by the grant or refusal of the application under section 21 of the Act in accordance with law. This being so, it is not necessary, nor could it be appropriate for this Court to consider the other contentions raised by the learned counsel for the parties. As rightly pointed out By Shri Bhatnagar, this Court does not substitute its own findings and judgment for the findings and judgment of the authorities below, in a proceeding under Article 226 of the Constitution. 6. The writ petition succeeds and is allowed. The order of the VIth Additional District Judge, Meerut dated May 16, 1977 in Misc. As rightly pointed out By Shri Bhatnagar, this Court does not substitute its own findings and judgment for the findings and judgment of the authorities below, in a proceeding under Article 226 of the Constitution. 6. The writ petition succeeds and is allowed. The order of the VIth Additional District Judge, Meerut dated May 16, 1977 in Misc. Appeal No. 670 of 1976 between Sita Ram Appellant v. Rajendra Kumar Jain Respondent, is quashed. The appeal shall be reheard by the District Judge or an Additional District Judge at Meerut in accordance with law. Respondent No. 3 shall pay the petitioner his costs in this Court.