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Allahabad High Court · body

1985 DIGILAW 908 (ALL)

Molvi Abdul Jalil v. District Judge

1985-09-25

A.N.DIKSHITA

body1985
JUDGMENT A.N. Dikshita, J. - By means of this petition Under Article 226 of the Constitution the Petitioner has prayed for quashing the judgment and Order dated 01.04.1982 (Annexure v. to the petition) passed by the Prescribed Authority, Allahabad, and the judgment and Order dated 25.08.1982 (Annexure VI to the petition) passed by the District Judge, Allahabad. 2. In brief the facts are: Respondent No. 3 Smt. Bismillah Begum filed an application u/s 21(1) of Uttar Pradesh Act No. XIII of 1972 (hereinafter called the Act) for the release of the portion in occupation of the Petitioner comprising of a room on the ground floor with a staircase and one room, verandah, kitchen, bathroom and a court yard on the first floor in premises No. 11-Kaziganj, Attarsuiya, Allahabad. It was stated in the application that the family of Respondent No. 3 consisted of 23 members and the accommodation at her disposal in the said premises comprising of 3 small rooms, a small kitchen etc. was too insufficient to meet the residential requirements of such a big family. The release application was contested by the Petitioner on various grounds. It was asserted that Respondent No. 3 had preferred the application on cooked up allegations inasmuch as the strength of the family had been inflated while the accommodation in her possession had been surreptitiously concealed to make out a bona fide case of residential requirement. Affidavits and counter-affidavits were filed by the parties in support of their respective cases. During the proceedings before the Prescribed Authority a Commissioner was appointed to enquire into the strength of the family members as well as the extent of accommodation available to the Petitioner and to Respondent No. 3. The Commissioner found 4 rooms (big and small), a latrine, a bathroom available with Respondent No. 3, besides a verandah and a courtyard. The Commissioner on the statement of Respondent No. 3 mentioned her family as self, her husband, 10 daughters, 5 sons and four children of one daughter. It was also stated that the marriage of Nizam Ahmad, son of Respondent No. 3, was shortly to be performed. As regards the Petitioner the Commissioner found his family as self, wife, daughter, daughter-in-law and her children. The accommodation in possession of the Petitioner was found to be one big room, a kitchen, and a room on the ground floor. It was also stated that the marriage of Nizam Ahmad, son of Respondent No. 3, was shortly to be performed. As regards the Petitioner the Commissioner found his family as self, wife, daughter, daughter-in-law and her children. The accommodation in possession of the Petitioner was found to be one big room, a kitchen, and a room on the ground floor. The strength of the family members as well as the extent of accommodation available to the parties was reported by the Commissioner on the basis of the statements given by the parties. The very purpose of getting a report was thus frustrated and it was desirable that the Commissioner should have inscribed in his report the strength of the family as well as the extent of the accommodation available to the parties as he himself found on the spot, but this was not done and instead the statements in respect of the family as well as the accommodation were given out in the report. Any how this report was hardly of any avail to the courts below. 3. The Prescribed Authority finding the need of Respondent No. 3 as genuine allowed the application u/s 21(1) of the Act and the portion in occupation of the Petitioner was released. Feeling aggrieved the Petitioner preferred an appeal to the court of District Judge, Allahabad, which too was dismissed and hence this petition Under Article 226 of the Constitution. 4. Learned Counsel for the patties have been heard. It was urged on behalf of Respondent No. 3 that the Petitioner cannot be permitted to argue beyond the provisions of Rule 16(1) of the Rules framed under the Act in view of the fact that by Order dated 27.09.1982 this Court found that the Appellant had only been able to make out a prima facie case on the ground of non-compliance of Rule 16(1) It is very difficult for me to agree with such a submission. The above observation was made by this Court while passing an interim order and the Petitioner cannot be deprived of his right to make his submissions on the merits of the case 5. It is emerging from the records that the family of Respondent No. 3 consists of herself, her husband, 6 unmarried daughters and 5 sons, total 13. The Prescribed Authority and the learned District Judge found four rooms being available with Respondent No. 3. It is emerging from the records that the family of Respondent No. 3 consists of herself, her husband, 6 unmarried daughters and 5 sons, total 13. The Prescribed Authority and the learned District Judge found four rooms being available with Respondent No. 3. These rooms have been described as big and small, while the accommodation in possession of the Petitioner was found to be one big room and one kitchen. It appears that no proper enquiry was ever conducted in respect of the extent of accommodation and family members by the court below. It has already been shown above that the report of the Commissioner is of no avail. The courts below found the family of Respondent No. 3 consisting of 13 members in which six unmarried daughters and five sons have been shown. Four daughters of Respondent No. 3 have been married prior to the disposal of the application u/s 21(1) of the Act while two have been married thereafter. It is thus manifest that besides Respondent No. 3 her family consists of her husband and five sons. As regards the five sons, one son is allegedly working somewhere in Saudi Arabia while two sons are at Bombay and they are not permanently residing with Respondent No. 3. There is no dispute as regards the family of the Petitioner which consists of himself, his wife, widowed daughter-in-law and her two children, total 5. The extent of accommodation is also not disputed as comprising of a room on the ground floor, a room on the first floor besides kitchen, bathroom, latrine etc. The whole approach in arriving at the conclusion by Respondents Nos. 2 and 1 appears to be manifestly erroneous in regard to the release of the portion in dispute. There appears to be considerable truth that Respondent No. 3 has with a mala fide intention inflated the strength of her family members. Likewise Respondent No. 3 surreptitiously concealed the extent of accommodation available with her. The effort of Respondent No. 3 was more to magnify her need by minimizing the accommodation available with her as well as by inflating the strength of her family members. Both the Respondents Nos. 2 and 1 failed to consider this aspect. Likewise Respondent No. 3 surreptitiously concealed the extent of accommodation available with her. The effort of Respondent No. 3 was more to magnify her need by minimizing the accommodation available with her as well as by inflating the strength of her family members. Both the Respondents Nos. 2 and 1 failed to consider this aspect. It appears that Respondents Nose, 2 and 1 were swayed more by the consideration that the son of the Petitioner was a hardened criminal likely to invade the privacy of Respondent No. 3. This by itself is a hollowed conclusion as three sons of the Petitioner were murdered as early as 27.03.1976, 27.06.1976 and 23.12.1976. The impugned orders were passed by Respondents Nos. 1 and 2 on 01.04.1982 and 25.08.1982 when the sons of the Petitioner were no more in this world. Another illegality committed by the courts below is that even the status of the Respondent was never enquired into. It is well settled law that the need for an accommodation is compatible to the status of the family. This was not done. Even a sketch map showing the length and breadth of the rooms was not considered expedient which has resulted in the miscarriage of justice. It is thus evident that the courts below materially erred and committed an illegality in coming to a conclusion that the need of Respondent KO, 3 was genuine when four rooms, big and small, were found to be in possession of Respondent No. 3. Further the courts below lost sight of a singular fact that the family of Respondent No. 3 only consisted of herself,, her husband and two sons as four daughters had already been married earlier and by now two have also been married. It has to be seen EOW whether the accommodation available with Respondent No. 3 is sufficient enough to cater her need particularly when her family consists of only four members. Admittedly Respondent No. 3 had already in her possession adequate and reasonable accommodation but had filed the application for release for additional requirement. It has to be seen EOW whether the accommodation available with Respondent No. 3 is sufficient enough to cater her need particularly when her family consists of only four members. Admittedly Respondent No. 3 had already in her possession adequate and reasonable accommodation but had filed the application for release for additional requirement. Rule 16 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972, provides that in such a circumstance where the landlord already has adequate and reasonably suitable accommodation having regard to the number of members of his family and their respective ages and his means and social status, his claim for additional requirements shall be construed strictly." Further the Petitioner is a Molvi apparently involved in propagating scriptures and is aged about 80 years. He is residing in the accommodation in dispute for the last 40 years. This aspect too has not teen considered by the courts below. A detailed enquiry about the number of family members of the parties as well as the extent of accommodation available to them would have truthfully revealed the facts but instead there is an incomplete report on the record which hardly inspires any confidence. This petition thus deserves to be allowed and the case remanded. 6. In the result the petition is allowed and the Orders dated 01.04.1982 and 25.08.1982 passed by the Prescribed Authority, Allahabad, and the District Judge, Allahabad, respectively, are quashed. The case is remanded to the Prescribed Authority, Allahabad, for a fresh decision according to law and in the light of observations made above. No order as to costs.