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1979 DIGILAW 1024 (ALL)

Rani Chaturvedi v. Shiv Narain

1979-09-20

S.D.AGARWALA

body1979
ORDER S. D. Agarwala, J. -This is a petition under Article 226 of the Constitution of India arising out of proceedings for release under S. 21 of U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, hereinafter referred to as the Act. 2. The petitioners are the tenants. Respondent No. 1 is the landlord. The property in dispute is house No. 8/229, Arya Nagar, Kanpur. The prescribed authority initially dismissed the release application. The matter went up in appeal. The Additional District Judge, Kanpur, allowed the appeal on 2nd September, 1977. Against the said order a writ petition No. 1670 of 1977 was filed in this Court by the tenants. Satish Chandra J. as he then was, by his judgment dated 23rd Feb. 1978 allowed the petition and remanded the case for re-decision in the light of the observations made by him in the judgment. After remand again the 1st Additional District Judge decided in favour of the landlord on 2nd Aug. 1978. The petitioner has challenged the order dated 2nd August 1978 by means of the present petition m this Court. 3. Learned counsel for the petitioner has urged that under S. 21 (1) (a) of the Act the need of the married daughters of Shiv Narain Dass, the landlord, and the children of the daughters cannot be considered as they are not members of the family of the landlord within the meaning of sub-section (g) of Section 3 of the Act and as such the finding of the appellate court is vitiated in law. The second submission is that only the petitioner Shailendra Chaturvedi has gone to the south but the petitioners Nos. 1 and 3 still reside in the house and as such the finding in regard to the comparative hardship is also vitiated in law as the case of petitioners Nos. 1 and 3 has not been considered by the appellate court. 4. In the appellate court it has been found that the landlord Sheo Narain Dass is a widower aged about 90 years. It has also been found that a judicially separated daughter Smt. Savitri Devi is permanently living with the landlord. 1 and 3 has not been considered by the appellate court. 4. In the appellate court it has been found that the landlord Sheo Narain Dass is a widower aged about 90 years. It has also been found that a judicially separated daughter Smt. Savitri Devi is permanently living with the landlord. Besides this it has been further found that another daughter of the landlord Smt. Saraswati Devi, her husband and her children and Ram Kumar, son of third daughter, have been living with the landlord since long i.e. permanently and not temporarily. Smt. Savitri Devi would come within the definition of 'family under S. 3 (g) of the Act but the other daughters and their children would not. 5. In view of these facts the question which arises for consideration is as to whether the need of the landlord can be considered in the light of the fact that other relations of the landlord are residing with him, though they are rot members of the family as defined under S. 3 (g) of the Act. Section 21 (1) (a) of the Act gives a right to the landlord to apply for release of a building under occupation of the tenant if the landlord 'requires the building for 'occupation by himself or any member of his family. The landlord can apply for 'occupation by himself or 'for occupation by any member of his family. In case an application is made for occupation by any member of his family, then alone the 'member of his family will be only such a person who comes within the definition of the word 'family, as provided by Section 3 (g) of the Act. If, however, the landlord requires the building for occupation by himself, then the question of applicability of the definition of the word 'family as used in S. 3 (g) does not arise. The court has to examine the own need of the landlord and in such a case the fact that the relations of the landlord are permanently residing with the landlord, would be a relevant consideration for the court to consider while examining the case of the landlord. 6. In Smt. Satya Misra v. II Addl. The court has to examine the own need of the landlord and in such a case the fact that the relations of the landlord are permanently residing with the landlord, would be a relevant consideration for the court to consider while examining the case of the landlord. 6. In Smt. Satya Misra v. II Addl. District Judge, 1978 (UP) RCC (Suppl) 738, K. C. Agarwal, J. while interpreting the words 'for occupation by himself held as follows: "The expression 'for occupation by himself does not mean that the landlord should live in isolation. If the state of health of a landlord or his age is such that he cannot live alone and would need the company or assistance of any other person, then the need of the such other person, whose assistance, he needs, would also be covered by this phrase. Similarly, if the landlord is invalid, an accommodation required for a helper may also be considered as a need of the landlord A distinction has, therefore, to be maintained between two classes of cases where a landlord does not need an assistance of a man but still he wants to keep some one with him, in such a case the need for occupation would not be that of the landlord but of that other person. But where as here, the landlord keeps his daughter and her son-in-law to look after his business and for his help it will have to be held that the requirement of these persons to have an accommodation to live with the landlord is bona fide need of the landlord himself." 7. In my opinion, the principle enunciated by K. C. Agarwal, J. would also apply to a case where the relations for varied reasons have to permanently stay with the landlord. 8. In Mst. Bega Begum v. Abdul Ahad Khan, AIR 1979 SC 272 , the Supreme Court while interpreting an analogous provision contained in J. & K. Houses and Shops Rent Control Act (34 of 1966) held as follows:- "Having regard, therefore, to the circumstances mentioned above, we are unable to subscribe to the view that the words 'own occupation must be so narrowly interpreted so as to indicate actual physical possession of the landlord personally and nothing short of that." 9. In Lala Ram v. Smt. Kalawati, 1974 Ren CJ 405, a single Judge of Delhi High Court while interpreting an analogous provision of Delhi Rent Control Act, 1958 has interpreted the expression 'self appearing in proviso (e) to Section 14 (1) of the Delhi Rent Control Act and held that it includes all members of the family of the landlord who had always been living with the landlord whether as dependant or otherwise. 10. In Special Appeal No. 28 of 1974, Amar Nath v. Addl. District Judge, Kanpur, decided on 28th Feb. 1974, a Division Bench of this Court consisting of Hon'ble Satish Chandra, J. (now Hon'ble the Chief Justice) and Hon'ble N. D. Ojha, J. held that where the relations of the landlord are staying with the landlord it is a relevant consideration even though the said relations are not the members of the family as defined in Section 3 (g) of the Act. 11. In my opinion, as has been found in this case, since the daughters and daughters children of the landlord had been residing with the landlord since long and as such it would be a relevant consideration to be considered while examining the need of the landlord. In my opinion, the view taken by the appellate court is in accordance with law and as such the first submission made by the learned counsel is not well founded. 12. In regard to the second submission the finding of the Court is that Shailendra Chaturvedi is in service in the South. There is a further finding that petitioners Nos. 1 and 3 do not reside in the accommodation in dispute. In fact the appellate court has found that no evidence has been led to establish that petitioners Nos. 1 and 3 reside in the accommodation in dispute. In view of this finding the conclusion arrived at by the appellate court that greater hardship would be caused to the landlord is fully justified and find no error in it. This is a finding of fact and cannot be interfered with under Art. 226 of the Constitution. 13. In the result the petition fails and is accordingly dismissed. In the circumstances parties are directed to bear their own costs.