Genda Ram v. 2nd Addl. Distt. Judge, Muzaffarnagar
1979-12-21
MURLIDHAR
body1979
DigiLaw.ai
ORDER Murlidhar, J. -This is a tenants petition under Art. 226 of the Constitution arising out of proceedings for release of a portion of a house under S. 21 (1) (a) Act No. XIII of 1972 (hereinafter called the Act). 2. The disputed premises consists of two rooms and tin-shed. This is a portion of a big house No. 25 Mohalla Chip-pewara, Muzaffarnagar. The rest of the house is in possession of eleven co-landlords. They applied under S. 21 (1) (a) for release on the ground that the accommodation in their possession was insufficient considering the family members. The tenant denied bona fide need and pleaded his own hardship. The Prescribed Authority rejected the application. II Addl. District Judge in appeal reversed the finding of the Prescribed Authority and held that bona fide requirement of the landlord was established as well as that their hardship by denying the application would be greater than the tenants hardship on eviction. These are the findings challenged by this petition. 3. The learned counsel for the petitioner has urged that the finding about bona fide requirement is vitiated because the appellate authority has taken into consideration the requirement of three co-landlords who were married daughters of the former owner and were living with their husbands as well as two co-owners who are in service outside the district. The judgment of the appellate authority shows that he considered the needs of these persons as co-owners for some place to stay in the common premises where their mother was also residing. Moreover the appellate authority noted that even the need of five co-owners who stayed in the remaining portion of the house and of whom Surendra Kumar had eleven family members justified claim for the additional accommodation occupied by the petitioner. This is a legitimate enough consideration. In my opinion, the finding about bona fide requirement which is ultimately a finding of fact is not assailable on this ground. 4. The other and more important ground is that in this case, there has been no comparison of hardship as required by Proviso 4 to Section 21 (1).
This is a legitimate enough consideration. In my opinion, the finding about bona fide requirement which is ultimately a finding of fact is not assailable on this ground. 4. The other and more important ground is that in this case, there has been no comparison of hardship as required by Proviso 4 to Section 21 (1). The only thing stated by the appellate authority is that the landlords purpose was not to let out the disputed premises, further that the rented accommodation held by Pramod Kumar landlord who was living away from the disputed premises and which he undertook to vacate on release of the disputed portion could not be regarded as alternative accommodation but even so the petitioner could not be permitted "to occupy the house in dispute to the inconvenience of the pressing need of the landlord" and that he was of the view that "the requirement of the landlord is more genuine and pressing and the respondent will not suffer any irreparable loss or greater hardship in case he is evicted." There is no other discussion. The Prescribed Authority in this connection had observed that the tenant was earning only Rs. 400/- per month and that he had asserted that of the two rooms one was being used as store and he was passing his days in the other with his two sons and a married daughter with her family because there was no other place to go to. The learned District Judge did not at all consider these factors. While the finding about comparative hardship is a finding of fact S. 34 (7) requires the appellate authority to record the reasons for every order under the Act. If reasons are not recorded the order is unsustainable. The least can be said is that the reasons even if they be not elaborated should show application of mind to pros and cons. This necessarily includes some advertence to the tenants hardship on eviction which may depend on various factors like the number of family members, the accommodation in possession, his resources, the position of availability of accommodation etc. In the present case no reasons have been recorded showing application of mind to the question of tenants hardship. The finding about comparative hardship has to be struck down as suffering from manifest error of law. 5. In the result, the petition is allowed. Order, dated 11-4-78 of the Addl.
In the present case no reasons have been recorded showing application of mind to the question of tenants hardship. The finding about comparative hardship has to be struck down as suffering from manifest error of law. 5. In the result, the petition is allowed. Order, dated 11-4-78 of the Addl. District Judge as appellate authority is quashed. He or any other officer to whom the case may be made over by the District Judge is directed to decide the appeal afresh after considering the question of comparative hardship in accordance with law and in the light of observations made in this judgment. The finding about bona fide requirement will not be reopened. There shall be no order as to costs.