Dinesh Mohan v. District Judge, Dehradun — 1980 DIGILAW 176 (ALL)

JUDGMENT A.N. Varma, J. - This is a petition under Article 226 of the Constitution of India which is directed against the orders passed by respondents 1 and 2, allowing an application filed by respondent No. 3 for release of residential accommodation of which the petitioner is the tenant and respondent No. 3 is the landlady. 2. These are the facts : The landlady filed an application under Section 21(1)(a) of the U.P. Urban Buildings Regulation of Letting, Rent and Eviction) Act, 1972, for the release of the accommodation on the ground that she bonafide required the accommodation in dispute inter alia on the assertion that the husband of the landlady was a member of the Armed Forces and was serving in a non-family Station. A certificate had been issued in favour of her husband that he was serving under the special conditions within the meaning of 3rd Explanation to Section 21(1) of the aforesaid Act. Beside seeking aid of the 3rd Explanation, the landlady also set up other ground in support of her application for the release which it is not necessary to set out here. The application was contested by the petitioner on the ground that the landlady did not bonafide require the accommodation in dispute and that his own need was much more pressing than that of the landlady. 3. The Prescribed Authority allowed the application holding that the need of the landlady was bonafide and that on a comparison of hardship the landlady was likely to suffer much more than the tenant. 4. Aggrieved by the order passed by the Prescribed Authority the tenant filed an appeal which has been dismissed by the learned District Judge, Dehradun. The learned District Judge has disposed of the case substantially on the ground that the 3rd Explanation to Section 21(1)(a) was attracted to the facts of the case and that therefore the need of the landlady must be deemed to be genuine. He has also observed that on comparison of hardship, the landlady was likely to suffer to greater extent than the tenant. 5. Learned counsel for the petitioner has contended that the learned District Judge has fallen into a manifest error of law in holding that the 3rd Explanation to Section 21(1) was applicable to the present case. He has also observed that on comparison of hardship, the landlady was likely to suffer to greater extent than the tenant. 5. Learned counsel for the petitioner has contended that the learned District Judge has fallen into a manifest error of law in holding that the 3rd Explanation to Section 21(1) was applicable to the present case. He has urged that the entire judgment of the learned District Judge has been influenced by his erroneous view as to the applicability of the 3rd Explanation. Learned counsel for the respondent on the other hand, submitted that the learned District Judge has given findings independently of the 3rd Explanation and that those findings not being vitiated in law, this Court should not interfere even if it comes to the conclusion that the 3rd Explanation was not applicable. 6. Having heard the learned counsels for the parties I am clearly of the view that the learned District Judge fell into a patent error of law in applying the 3rd Explanation to the facts of the present case. I am clearly of the view that the judgment of the District Judge has been positively influenced by the consideration that the 3rd Explanation was applicable to the facts of the present case. 7. The 3rd Explanation to Section 21(1) reads as follows : "(iii) where the landlord is a member of the armed forces of the Union and the Prescribed Authority under the Indian Soldiers (Litigation) Act, 1925 (Act No. IV of 1925), has issued a certificate in his favour that he is serving under special condition within the meaning of Section 3 of that Act, then his representation that he needs the building for residential purposes for members of his family whose particulars are specified in the application shall be deemed sufficient for purposes of clause (a)." It is obvious that the said Explanation is attracted only if the landlord in question himself is a member of the Armed Forces of the Union. In the present case it is admitted that the landlady, who has made the application under Section 21, is not a member of the Armed Forces. The learned District Judge has applied this provision on the view that the husband of the landlady, who is indisputably a member of the landlady's family, being in the Armed Forces, the benefit of the said Explanation ought to be available to the landlady. The learned District Judge has applied this provision on the view that the husband of the landlady, who is indisputably a member of the landlady's family, being in the Armed Forces, the benefit of the said Explanation ought to be available to the landlady. The view is obviously wrong. The Benefit which is available under the 3rd Explanation is a personal privilege which can be availed of only when the landlord himself is a member of the Armed Forces. The argument that the spouse of the landlord or the landlady may also be treated as a landlord or landlady, was raised in several cases, but this Court has consistently held that the definition of the landlord cannot be extended to include the soue (spouse) of the landlord as well. (See 1978 UPR CC 331 and 1978 ALR 332). The learned District Judge was, therefore, not right taking the view that the 3rd Explanation was attracted to the facts of the present case. He should, therefore, decide the case afresh excluding the 3rd Explanation from consideration. 8. As I have already mentioned above, the judgment of the learned District Judge has been affected by his view as to the applicability of the 3rd Explanation. It has, therefore, to be set aside for a reconsideration. 9. The result of what has been stated above is that this petition succeeds and is allowed. The order passed by respondent No. 1, dated 19th July, 1978 is quashed. The case is remanded to the respondent No. 1 for being disposed of according to law, having regard to the observation made in the judgment. The learned District Judge will try and disposed of the appeal within a period of three months from today. The parties are directed to be their own costs.