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1986 DIGILAW 82 (ALL)

Jagannath Prasad v. IV Addl. District Judge

1986-01-24

A.N.DIKSHITA

body1986
JUDGMENT A.N. Dikshita, J. - By means of this petition under Article 226 of the Constitution of India the Petitioner has prayed for issuing a writ in the nature of certiorari for quashing the judgment and order dated 25.11.1980 passed by the 4th Additional District Judge, Mathura. 2. In brief the facts are: The Petitioner is the owner and landlord of the accommodation situate at Badri Nagar, Mathura, measuring 40' x 52' (hereinafter referred to as the disputed accommodation) which is in occupation and possession of Respondents Nos. 3 and 4 on a monthly rental of Rs. 52/-. 3. The Petitioner intended to establish his two jobless sons, Behari Saran and Govind Saran on finding their distaste for studies, in the limestone and allied business in the disputed accommodation. Consequently the Petitioner filed an application u/s 21 of U.P. Act Xfll of Iy72 (hereinafter called the Act) before the Prescribed Authority, Respondent No. 2, for the release of the disputed accommodation on the ground of personal need. 4. The application was contested by Respondents Nos. 3 and 4 on various grounds decrying the need of the Petitioner and also magnifying the comparative hardship that would be caused to them in case the application for release was allowed. 5. The Prescribed Authority did not find the need of the Petitioner to be bonafide and further found that comparative hardship was more in favour of Respondents Nos. 3 and 4. The application for release was thus rejected. 6. Aggrieved by the above order of the Prescribed Authority the Petitioner preferred an appeal to the District Judge, Mathura. The 4th Additional District Judge, Mathura, Respondent No. 1, to whom the case was transferred for disposal came to the conclusion that the need of the Petitioner for establishing his sons in business was genuine, but curiously held that greater hardship would be caused to Respondents Nos. 3 and 4 in case the application was allowed and as such affirmed the order passed by the Prescribed Authority dated 27.8.1979, rejecting the release application. The appeal having failed the Petitioner has filed the instant petition under Article 226 of the Constitution for issuing a writ in the nature of certiorari quashing the impugned orders passed by Respondents Nos. 1 and 2. 7. Counsel for the parties have been heard. 8. The appeal having failed the Petitioner has filed the instant petition under Article 226 of the Constitution for issuing a writ in the nature of certiorari quashing the impugned orders passed by Respondents Nos. 1 and 2. 7. Counsel for the parties have been heard. 8. The need of the Petitioner though repelled by the Prescribed Authority was ultimately found to be bonafide and genuine by the appellate court. The appellate court, however, preferred to reject the application on the ground of inconvenience and comparative hardship being in favour of Respondents Nos. 3 and 4. The appellate court rightly came to the conclusion that the need of the Petitioner was bonafide devoid of any ulterior motive or mala fide intention. 9. It is manifest from a perusal of the record that Respondents Nos. 3 and 4 have sufficient accommodation at their disposal and their business is yielding lucrative results. The ascendancy of Respondents Nos. 3 and 4 to frustrate the bonafide need of the Petitioner was reflected when they preferred to refuse to accommodate the two sons of the Petitioner for starling their business in a plot owned or possessed by them. Evidently Respondents Nos. 3 and 4 are in possession of various properties but still the appellate court found that greater hardship would be caused to them in case the disputed accommodation was released in favour of the Petitioner. It would have been more appropriate for the appellate court to have ascertained the exact user and the extent of business carried on by Respondents Nos. 3 and 4 in the properties either owned or possessed by them. Relevant proof in support of the user and the magnitude of the business ought to have been considered by the appellate court. The empire supremacy of Respondents Nos. 3 and 4 was not legally considered and the need of the Petitioner though genuine was frustrated in the rejection of such need on the ground that greater hardship or inconvenience would be caused to Respondents Nos. 3 and 4. In each and every case where a tenant is sought to be dislodged or evicted from the existing accommodation in his tenancy inconvenience would be caused, hardship would be occasioned but that by itself alone would not be a ground to discard a bonafide requirement. 10. In N.S. Datta v. VII Additional District Judge, Allahabad 1984 (1) ARC 113 and in Dr. 10. In N.S. Datta v. VII Additional District Judge, Allahabad 1984 (1) ARC 113 and in Dr. B.K Joshi v. II Addl. District Judge, Allahabad, Civil Misc. Writ No. 15948 of 1984 decided on 18-7-1985 the issue regarding comparative hardship to the tenant was dealt with. 11. Applying the law laid down in the aforesaid cases I find that the appellate court has committed a manifest error of law in not considering the question of hardship in its proper perspective and has not applied its mind to the question of the extent of accommodation already at the disposal of Respondents Nos. 3 and 4. Moreover, Respondent No. 1 has not considered according to law another significant aspect as to whether Respondents Nos. 3 and 4 could shift their existing business to the accommodations own dieter or possessed by them. The findings of the appellate court having been rendered erroneously and contrary to the law laid down by this Court deserve to be quashed. It would, however, be expedient that Respondent No. 1 ought to consider afresh the aspect of comparative hardship to Respondents Nos. 3 and 4 in the light of observations made above aswell as in view of the law laid down by this Court in a number of cases. The appeal shall be decided, only on question of hardship which may be caused to Respondents Nos. 3 and 4 for which purpose the appellate court may have relevant material on record. 12. Before parting with the petition it might be stated that I do not consider it necessary to examine a vein and feeble submission made on behalf of Respondents Nos. 3 and 4 that the need of the Petitioner was erroneously adjudged to be bona fide by the appellate court. The appellate court, as discussed above, has rightly come to the conclusion that the need of the Petitioner to establish in business his two sons is bonafide and genuine lest the two sons may resort to vagabondism. Further there is no merits in the submission of the learned Counsel for Respondents Nos. 3 and 4 and any reexamination or re-assessment of such need is not warranted. 13. It might also be stated that even if Respondents Nos. Further there is no merits in the submission of the learned Counsel for Respondents Nos. 3 and 4 and any reexamination or re-assessment of such need is not warranted. 13. It might also be stated that even if Respondents Nos. 3 and 4 had not succumbed to the bona fide need and genuine requirement of the Petitioner but still it was incumbent upon them to have made some efforts to search for an alternative accommodation of which there is no evidence. Further the mere no availability of alternative accommodation to a tenant is in itself not an adequate ground to reject the application of the landlord for the release of the accommodation. As already stated nothing has been indicated that Respondents Nos. 3 and 4 ever made efforts to seek any alternative accommodation so as to shift and such a failure on the part of a tenant after the filing of release application weighs heavily against the tenant on his contending that he has no other accommodation alternatively available. See Ashok Kumar Jaiswal v. District Judge, Mirzapur 1981 (1) All Ind RCJ 576 ; Munshi Master v. Ill Addl. District Judge, Mainpuri 1981 2 RCJ 253; Radhey Shyam v. Additional District Judge, Bulandshahr 1980 ALJ 463 and Sanwal Das Banka v. Ill Addl. District Judge, Faizabad 1982 1 All RC 24. 14. In Suraj Prasad Sharma v. II Addl. District Judge, Mirzapur, 1983 (1) ARC 427 M.N. Shukla, J. (as he then was) observed: It is a common place fact that invariably when an application u/s 21 of the Act is allowed, the tenant has to quit and this involves discomfort but if this alone were sufficient to non suit the landlord, no application for release could ever be allowed. Judging comparative hardships' is a matter of deeper import and it would be a lopsided order which dismisses a landlord's application for release merely with the platitudinous observation that the tenant would be 'thrown on the street'. The physical dispossession of the tenant is the necessary concomitant of every release application of the landlord which is allowed. However, well founded the application may be an element of inconvenience or discomfort is inherent in the very process of vacating an accommodation. A release application cannot be thrown out merely with the bald observation that the tenant would suffer greater hardship. 15. However, well founded the application may be an element of inconvenience or discomfort is inherent in the very process of vacating an accommodation. A release application cannot be thrown out merely with the bald observation that the tenant would suffer greater hardship. 15. As a result of the above discussion the petition succeeds and deserves to be allowed. 16. In the result the petition is allowed and the order of the appellate Court, Respondent No. 1, dated 25.11.1980, in respect of hardship is quashed whle that of the need of the Petitioner being found to be genuine is maintained. The case is remanded to the 4th Additional District Judge, Mathura, for considering the question of comparative hardship afresh in accordance with la in the light of observations made above. In the peculier circumstances of the case I leave the parties to bear their own costs. After the remand the appeal shall be disposed of within three months.