Gendamal v. Ch. Lal Singh — 1979 DIGILAW 1054 (ALL)

ORDER S. D. Agarwala, J. - This is a petition under Art. 226 of the Constitution of India arising out of proceedings for release under Section 21 of U. P. Act XIII of 1972 (hereinafter referred to as the Act). 2. The property in dispute is a shop which is a portion of House No. 274, Maulaheri House, Muzaffarnagar. Genda-lal petitioner is the tenant. Ch. Lal Singh, respondent No. 1 is the landlord. Ch. Lal Singh filed an application under Section 21 (1) (a) of the Act for release of the disputed shop on the ground of personal need. The said application was rejected by the prescribed authority on 7th April, 1977. Respondent No. 1 filed an appeal under Section 22 of the Act which was allowed by the 1st Additional District Judge, Muzaffarnagar by his judgment, dated 16th October, 1978. The petitioner tenant has challenged the judgment dated 16-10-78 by means of the present petition in this Court. 3. Learned counsel for the petitioner has raised various submissions before me. His first contention is that it is not open to the landlord to split up the tenancy and as such, the application under S- 21 of the Act is not maintainable in law. The second submission is that the need of the grandson cannot be considered under Section 21 (1) (a) of the Act unless it is further proved that they were normally residing with the landlord. The third submission is that the finding that greater hardship would be caused to the respondent No. 1 in case his application is refused is a finding vitiated in law as material evidence has not been considered before coming to this conclusion and the case of the petitioner has not been considered at all. 4. The first submission made by the learned counsel was on the ground that the petitioner was the tenant of the entire House No. 274, Maulaheri House, Muzaffarnagar. Respondent No. 1, landlord could not split up the tenancy and file two separate applications, one in respect of residential portion and the other in respect of the shop in dispute. Prior to the coming into force of U. P. Act XIII of 1972, it was settled law that the tenancy could not be split up. Respondent No. 1, landlord could not split up the tenancy and file two separate applications, one in respect of residential portion and the other in respect of the shop in dispute. Prior to the coming into force of U. P. Act XIII of 1972, it was settled law that the tenancy could not be split up. It was precisely due to this position of law that when this Act was enacted, it was clearly laid down in Section 21 (1) of the Act that the prescribed authority may on an application of the landlord in that behalf order the eviction of a tenant from the building under tenancy or any specified part thereof, if the landlord establishes the grounds mentioned in sub-cls. (a) and (b). In my opinion, it is now open to the landlord to split up the tenancy and to move two different applications in respect of two defined parts of the property. I have also considered this matter in detail in Writ Petn. No. 1804 of 1977 Shyamlal v. Vlth Addl. Dist. Judge, decided on 18th September, 1979 (reported in 1979 All LJ 2516). In view of the above, the first submission made by the learned counsel, in my view, is not well founded. 5. In regard to the second submission, learned counsel for the petitioner has urged that in view of the findings that the sons are separate in income and mess, the Court could not have considered the need of the grandsons under Section 21 (1) (a) of the Act. Since the sons are separate, therefore, it would be presumed that the grandsons were also not normally residing with the landlord. The submission of the learned counsel, in fact, is that the grandsons who are not normally residing with the landlord are not members of the family of the landlord within the meaning of Section 3 (g) of the Act and as such, the bona fide need of the said grandsons could not be a ground for granting the release application. The submission of the learned counsel, in fact, is that the grandsons who are not normally residing with the landlord are not members of the family of the landlord within the meaning of Section 3 (g) of the Act and as such, the bona fide need of the said grandsons could not be a ground for granting the release application. Section 3 (g) which defines 'family is quoted below: - (g) "family" in relation to a landlord or tenant of a building, means his or her - (i) spouse, (ii) male lineal descendants, (iii) such parents, grand parent and any unmarried or widowed or divorced or judicially separated daughter or daughter of a male lineal descendant as may have been normally residing with him or her, and includes, in relation to a landlord, any female having a legal right of residence in that building; 6. Learned counsel for the petitioner has urged that expression 'as may have been normally residing with him or her used in sub-cl. (iii) is applicable both to cls. (i) and (ii). 7. From the definition of the words family it is clear that the spouse, male lineal descendants, would come within the definition of the word 'family, but under cl. (iii) a restriction has been placed that only those parents, grand parents and only unmarried or widow or divorced or judicially separated daughter, or daughter of male lineal descendant shall be included in the family of the landlord provided they have been normally residing with the landlord. The intention of the legislature is very clear and there is no such restriction placed so far as the spouse and male lineal descendants are concerned. I am unable to agree with the submission made by the learned counsel that the expression "as may have been normally residing with him or her" specifically mentioned in cl. (iii) should also be real along with cls. (i) and (ii). It is not possible to stretch the language of the definition as suggested by the learned counsel for the petitioner. The grandsons are male lineal descendants of the respondent No. 1, and as such the Court rightly considered the need of the grandsons while considering the application under Section 21 (1) (a) of the Act. The second submission, therefore, made by the learned counsel does not have any substance. 8. The grandsons are male lineal descendants of the respondent No. 1, and as such the Court rightly considered the need of the grandsons while considering the application under Section 21 (1) (a) of the Act. The second submission, therefore, made by the learned counsel does not have any substance. 8. In regard to the third submission made by the learned counsel, the petitioner has pointed out that the respondent No. 1 and the members of his family are rolling in wealth and they have got ample income to maintain themselves. The petitioner had stated all these facts in paras 18, 19, 20, 21 and 22 of the written statement. He had also filed his awn affidavit in support of the same which is attached as Annexure 'VII to the petition. He urged these facts again before this Court in paras 16, 17, 18, 19 of the petition. I find from the records that these facts have not been specifically denied by the respondent No. 1. No denial has been made even in this Court specifically of the facts stated in paras 16, 17, 18 and 19 of the petition. These were important and material facts. 9. The petitioner has further pointed out that he had filed an affidavit which is attached as Annexure 'IX' to the petition before the prescribed authority stating therein that the rent of the shops of Zilla Parishads market range from Rs. 150/- to R. 225/-per month which are beyond the means of the petitioner. The shops of the said market are too small measuring 10' x 12' which cannot serve the Dhaba business of the petitioner. It was further urged that there is not a single shop in the market which has been given for the business which is to result in smoke. He specifically further urged that he could not get any shop while the respondent No. 1 could avail of the said shop. 10. I have examined the judgment of the Appellate Court and I find that the material facts mentioned above have not been considered at all by the Appellate Court while considering the comparative hardship of the parties. The question as to whether it will be possible for the petitioner to get an alternative accommodation was a relevant fact to be considered in this connection. The fact that the respondent To. The question as to whether it will be possible for the petitioner to get an alternative accommodation was a relevant fact to be considered in this connection. The fact that the respondent To. 1 already had sufficient income .vas also relevant to be considered in .his connection. I find from the order of the Appellate Court that the case of the petitioner in regard to the hardship has not been considered at all in the right perspective and material evidence has been ignored by the Appellate Court in this regard. In Mst. Bega Begum v. Abdul Ahad, AIR 1979 SC 272 , the Supreme Court while considering an analogous provision of Jammu and Kashmir Houses and Shops Rent Control Act, 34 of 1976 held that when the Court is considering the question of hardship, it would be a relevant fact -that the tenant will not be able to get any accommodation in the city. The Supreme Court observed as follows in para 23: "It was then submitted by Mr. Andley, counsel for the respondent that if the respondents arc evicted, they will be thrown out on the road; that hotel is the only source of their sustenance and they are not likely to get any other alternative accommodation on being evicted. If the defendants had proved that they will not be able to get any accommodation anywhere in the city where they could set up a hotel, this might have been a weighty consideration................. " 11. In the circumstances mentioned above, the third submission made by the learned counsel has substance and it is therefore, necessary in the interest of justice that the matter be remanded to the Appellate Court for decision on the question of applicability of the fourth proviso to Section 21 of the Act. During the pendency of this petition, a supplementary affidavit was filed by the petitioner that the respondent No. 1 had constructed two shops adjacent to the shop in dispute. In the supplementary affidavit filed by the respondent No. 1, the respondent No. 1 has admitted that he has constructed one shop but his case is that this was only to provide alternative accommodation to Tilak Ram, another tenant. These are disputed questions of facts. In the supplementary affidavit filed by the respondent No. 1, the respondent No. 1 has admitted that he has constructed one shop but his case is that this was only to provide alternative accommodation to Tilak Ram, another tenant. These are disputed questions of facts. It is not necessary for me to go into detail in respect of these facts and it will be open to the Appellate Court to consider these facts in case an appropriate application is made before it by the parties. 12. In the result, I allow the petition, quash the order of the 1st Additional District Judge, Muzaffarnagar, dated 16th October, 1978 and remand the matter to the Appellate Court for decision afresh in accordance with law in the light of the observations made by me. Parties are directed to bear their own costs.