Panna Lal v. Raj Kumar Singh — 1987 DIGILAW 1253 (ALL)

JUDGMENT R. P. Singh, J. 1. By means of this writ petition, the petitioners have challenged the order passed by the VII Addl. District Judge, Kanpur, dated 18-6-1987. 2. Brief facts of the case are that respondents no. 1 and 2 filed an application under section 21 (1) (a) of the U. P. Act no. XIII of 1972 (hereinafter referred to as the Act),, for the release of premises no. 7/91-A, Tilak Nagar, Kanpur Nagar on the ground that they are the landlords and owners of the same in which the petitioners were living as tenants. Respondent no. 1 was a Medical Officer in the Indian Air Force and had retired and after his retirement, he had been living with his brother Sri Pawan Pratap Singh and his mother, but on account of differences between his wife and mother, it became impossible for him to continue to live with his mother and brother and his case is that his need for the accommodation in dispute is bonafide and genuine. The case put forward by respondent no. 2 is that he is a Wing Commander in the Indian Air Force and has not been given any official residence with the result that he alongwith his wife and two children are compelled to live in one room accommodation of the Officers Mess and that he wants to settle his family at Kanpur so that education of his children may not suffer. It was further alleged by respondents no. 1 and 2 that the accommodation in dispute alongwith other property was owned by late Raja Shyam Pratap Singh who died on 21-2-1979 leaving his widow, 3 sons and 3 daughters and late Raja Shyam Pratap Singh had executed a Will, dated 10-12-1976 in accordance with which the accommodation in dispute came to the share of respondents no. 1 and 2 and has been so recorded in the records of the Nagar Mahapalika, Kanpur and separately assessed. Respondents no. 1 and 2 thus set up their need for the accommodation being bonafide and genuine on the basis of which they filed the application for the release of the same in their favour. The tenants, who are the petitioners in the present writ petition, contested the application for release of the accommodation on the ground that the need of respondents no. The tenants, who are the petitioners in the present writ petition, contested the application for release of the accommodation on the ground that the need of respondents no. 1 and 2 was not bonafide and genuine and that they have no alternative accommodation and further that greater hardship would be caused to the petitioners if the release application is allowed. 3. The Prescribed Authority, after considering the evidence led by the parties, held that the need for the accommodation of respondents no. 1 and 2 are neither bonafide nor genuine and rejected the application for release, vide his order, dated 19th November, 1985 which was challenged by the respondents no. 1 and 2 by filing an appeal before the AddI. District Judge, respondent no. 3, who, on consideration of the evidence on record, held that the need of respondents no. 1 and 2 for the accommodation in dispute, was bonafide and genuine and that greater hardship would be caused to them if the application for release of the accommodation was not allowed and vide his order, dated 18-7-1987, he allowed the appeal ordering the release of the accommodation in dispute to respondents no. 1 and 2 which is subject matter of challenge in this writ petition. 4. The learned counsel for the petitioners has contended that the application for release of the accommodation in dispute was not maintainable by respondents no. 1 and 2 as the other heirs of late Raja Shyam Pratap Singh have not joined in the application and that the Will, on the basis of which the respondents no. 1 and 2 are claiming that the accommodation in dispute fell to their share, is not genuine Will as it has not been duly proved and hence the application was liable to be rejected. The learned counsel for the respondents contended that on the basis of the Will executed by late Raja Shyam Pratap Singh, all his legal heirs including respondents no. 1 and 2 filed an application for mutation before the Nagar Mahapalika, Kanpur. The learned counsel for the respondents contended that on the basis of the Will executed by late Raja Shyam Pratap Singh, all his legal heirs including respondents no. 1 and 2 filed an application for mutation before the Nagar Mahapalika, Kanpur. A copy of the application for mutation duly signed by all the heirs of late Raja Shyam Pratap Singh has been annexed as Annexure-1 to the counter-affidavit and this mutation application was allowed by the Nagar Mahapalika on the basis of which separate portions of the property were entered in the names of respective heirs separately and was separately assessed with effect from 1-4-1983 and the accommodation in dispute has been shown to have been entered in the names of respondents no. 1 and 2 exclusively and separately assessed by the Nagar Mahapalika. It is relevant to note that rent of the accommodation in dispute was paid by the petitioners and rent receipts for the same were issued by the contesting respondents for the months of July to November, 1983 ; thus the petitioners tendered rent of the accommodation "in dispute to the contesting respondents alone. The word 'landlord' has been defined in the Act as a person to whom its rent is payable and thus the petitioners' own conduct of tendering rent of the accommodation in dispute to the contesting respondents shows that the contesting respondents had been treated as landlords by the petitioners. The present application for release has been signed by respondents no. 1 and 2 with the allegations that the accommodation in dispute fell to their share in the family partition on the basis of the Will and was as such separately recorded in their names in the records of the Nagar Mahapalika, Kanpur. A similar question was raised in the case of Girraj v. Ill Additional District Judge, Bareilly, 1979 ARC 422, where the application under section 21 of the Act was dismissed by the learned District Judge on the ground that it was not signed by all the co-landlords. It was held in that case that the rule expressly permits the signing of the application under section 21 of the Act by one or more of the co-landlords and that it would be sufficient compliance if the non-petitioning landlords were only arrayed as proforma respondents. It was held in that case that the rule expressly permits the signing of the application under section 21 of the Act by one or more of the co-landlords and that it would be sufficient compliance if the non-petitioning landlords were only arrayed as proforma respondents. In Yogesh Saran v. Jyoti Prasad, 1978 ARC 408, it was held that- "To me it appears that the omission to sign the application by all the landlords is of a formal character and an application made by the landlord cannot be rejected on this basis. It is so because for getting a premises released under section 21 it is not necessary that the landlord must set up the needs of all the landlords and allege that the premises is needed by all of them. It can be for the need of only one landlord. " Then in the Full Bench case of Gopal Das v. 1st Addl. District Judge, Varanasi, 1987 AWC 538 , it was held that- " In view of these decisions, there can, therefore, be little doubt as to the maintainability of the action for eviction brought by one co-owner without impleading the other co-owners." It was further observed that- "However, we may point out that the requirement of Rule 15 (2) that an application for release of premises owned by co-owners should be signed by all co-owners would be invalid. One co-owner is competent to maintain an action for eviction of the tenant of the entire premises, since he can be considered as a landlord within the meaning of section 3 (j) of the Act One co-owner alone would be competent to sign such an application. "In Ram Parsicha v. Jagannath, reported in AIR 1976 SC 2335 , it was observed at page 2339 as follows :- "Jurisprudentially it is not correct to say that a co-owner of a property is not its owner, he owns every part of the composite property alongwith other and it cannot be said that he is only a part-owner or a fractional owner of the property. The position will change only when partition takes place. The position will change only when partition takes place. It is, therefore, not possible to accept the submission that the plaintiff who is admittedly the landlord and co-owner of the premises is not the owner of the premises within the meaning of section 13 (1) (f) as long as he is a co-owner of the property being at the same time the acknowledged landlord of the defendants." In view of the decisions noted above, it is clear that the application moved by respondents no. 1 and 2 under section 21 (1) (a) of the Act cannot be dismissed as not maintainable. Moreover, the respondents no. 1 and 2 have shown that on the basis of the will executed by their late father, the accommodation in dispute fell to their share and was also accepted as such and recorded in the records of the Nagar Mahapalika, Kanpur and hence I see no merits in this submission of the learned counsel for the petitioners. 5. It was next contended by Sri K. M. Dayal, the learned counsel for the petitioner, that the Will, dated 10-12-1976 executed by late Raja Shyam Pratap Singh on the basis of which the contesting respondents claimed that the accommodation in dispute fell to their share was filed as additional evidence at the appellate stage and that the contention of the learned counsel for the petitioners is that firstly, the Will should not have been allowed to be filed at the appellate stage and secondly, the signatures on the Will do not tally with the admitted; signatures and it was incumbent on the respondent no. 3 to have taken the assistance of a Handwriting Expert in comparing the signatures. 6. As regards the filing of the additional evidence at the appellate stage, the same was challenged by the petitioners in writ petition no. 5502 of 1987 which was dismissed by this Court on 9-3-1987 holding that the learned Addl. District Judge has brought these documents on record but has not expressed any opinion on the veracity of the landlords' plea or bonafides of evidence and while dismissing the writ petition the Court observed that it was not expressing any opinion on the additional evidence which is to be considered on its being brought on record by respondents no. 1 and 2. 1 and 2. Thus, in so far as the admission of the additional evidence by the lower appellate court is concerned, the matter is final and only the veracity of the Will could be challenged. The Will being brought on record as additional evidence and having been proved by producing the attesting witness and the same having been acted upon by the Nagar Mahapalika, Kanpur in allotting separate shares to respective heirs, in my opinion, for the purposes of the present case in this proceedings under the U. P. Act No. XIII of 1972, the application moved under section 21 (1) (a) by respondents no. 1 and 2 on its basis will be maintainable. The court while dealing with an application under section 21 (1) (a) of the Act is a court of limited jurisdiction and hence it will not be necessary to go into the question of proof of the Will in these proceedings in the same manner as is done in regular civil or testamentary matters. Moreover, the Will has not been challenged by any of the heirs who have signed the application for mutation before the Nagar Mahapalika and mutation was made over separate shares in favour of the respective heirs. The petitioners have also been paying rent to the contesting respondents who have been issuing rent receipts in lieu thereof and thus by their own conduct the petitioners have accepted the contesting respondents as landlords who have filed the application for release of the accommodation in their own right. Hence, there are no merits in this submission of the learned counsel for the petitioners. It is next contended by the learned counsel for the petitioners that the need of the contesting respondents is neither bonafide nor genuine and further that it was the duty of the court to take into account the applicability of rule 16 (1) (d) of the rules and to consider if the landlord's need would be adequately met by releasing a part of the accommodation and the tenant's need would be adequately met by leaving with him a part of the building under tenancy which has not been done in the present case by the Addl. District Judge. In reply, the learned counsel for the contesting respondents contended that since the case of respondents no. District Judge. In reply, the learned counsel for the contesting respondents contended that since the case of respondents no. 1 and 2 falls within the ambit of explanation (iii) of section 21 (1) of the Act and hence the need of such landlords would be deemed to be sufficient and the requirements of comparison laid down by the proviso does not apply to cases covered by the explanation. For dealing with this submission of the learned counsel for the parties, it would be necessary to note the relevant provisions of the Act. Fourth proviso to section 21 (1) of the Act reads as follows :- "Provided also that the Prescribed Authority shall, except in cases provided for in the explanation, take into account the likely hardship to the tenant from the grant of the application as against the likely hardship to the landlord from the refusal of the application and for that purpose shall have regard to such factors as may be prescribed." Explanation (iii) as amended by U. P. Act No. 17 of 1985 with effect from 18-5-1983 runs as follows :- "Where the landlord of any building is- (i) a serving or retired Indian Soldier as defined in the Indian Soldiers (Litigation) Act, 1925 (Act IV of 1925) and such building was let out at any time before his retirement, or (ii) a widow of such a soldier and such building was let out at any time before the retirement or death of her husband, which-ever occurred earlier, and such landlord needs such building for occupation by himself or the members of his family for residential purposes, then his representation that he needs the building for residential purposes for himself or the members of his family shall be deemed sufficient for the purposes of clause (a) and where such landlord owns more than one building, this provision shall apply in respect of one building only." 7. The legislative intent of this provision seems to be to make a special provision with regard to the need of the members of armed forces for their residential accommodation. The legislative intent of this provision seems to be to make a special provision with regard to the need of the members of armed forces for their residential accommodation. It is well known that the members of the armed forces at a great risk and hardship, are engaged for the defence of the country and hence in the larger interest of the nation as a whole and to keep the members of the armed forces free from the problem of providing accommodation to their family members, a special provision has been made which provides that if they make representation about the need for their building for occupation for themselves or members of their family, their need shall be deemed to be sufficient for the purposes of section 21 (1) (a) of the Act. The circumstance that a serving or retired soldier or the widow of such a soldier is the landlord of a building sought to be released coupled with the fact that such a building was let out before his retirement or death will be sufficient compliance of law and the building will be released in his or her favour for occupation by him or members of his family. In view of the fourth proviso to section 21 (1) of the Act if the case of the respondents is covered by the explanation, then the Prescribed Authority has not even to take into account the likely hardship to the tenant in the grant of the application as against the likely hardship to the landlord from refusal of such an application. As has been stated above, respondent no. 1 has retired as a Medical Officer of the Indian Air Force while respondent no. 2 is serving as a Wing Commander in the Indian Air Force and wants to settle his family in Kanpur since he needs the same as he is under the circumstances compelled to live in one single room in the Officers' Mess, putting himself to great hardship, it is clear that the case of respondents no. 1 and 2 is covered by explanation (iii) to section 21 (a) of the Act. 8. Their lordships of the Supreme Court in the case of Shiv Ram Anand Shiroor v. Mrs. 1 and 2 is covered by explanation (iii) to section 21 (a) of the Act. 8. Their lordships of the Supreme Court in the case of Shiv Ram Anand Shiroor v. Mrs. Radhabai Shanta Ram Kowshik reported in 1984 (1) ARC 350, observed that- "The cases of defence personnel due to their special obligation and disabilities do need different treatment from that accorded to landlords and in fact special provision has been made for them in some of the statutes, whereby processes for defence personnel to regain possession of their premises have been simplified and made more effective." In the case of Dr. Bal Krishna Yogi v. Addl. District Judge, Dehradun, 1985 (2) ARC 539, this Court had the occasion to consider the effect of the fourth proviso to section 21 (.1) to cases falling under explanation (iii). It was observed in that case that- "The above proviso excludes the cases provided for in the explanation (iii) which covers the case of a building whose landlord is a member of the armed forces of the Union. Therefore, I think the consideration of hardship of the landlord of such a building and the hardship of the tenant therein is not a very material factor while considering the release application." In the case of Har Prasad v. IV Addl. District and Sessions Judge, Kanpur, 1986 (2) ARC 106, this Court again had occasion to consider the effect of the case falling under explanation IV to section 21 (1) and observed that- "The conclusion reached by the appellate court that the need of the landlady is bonafide can also be sustained on the ground that this is a case which was beyond doubt squarely covered by explanation IV to section 21. In the present case, the accommodation in question is undoubtedly a part of the building, the remaining part of which is in occupation of the landlady and is being used for residential purposes. That being so, explanation IV was plainly attracted to the case. Consequently, it must be presumed that the landlady bonafide requires the building. In the present case, the accommodation in question is undoubtedly a part of the building, the remaining part of which is in occupation of the landlady and is being used for residential purposes. That being so, explanation IV was plainly attracted to the case. Consequently, it must be presumed that the landlady bonafide requires the building. Learned counsel next contended relying on rule 16 (1) (d) of the rules framed under the aforesaid Act, that even though the petitioners had not specifically raised the plea before the Courts below that the need of the landlady would be served by releasing only a part of the building under tenancy while leaving the rest with the petitioners, the Prescribed Authority as well as the Appellate Court were obliged to consider this aspect of the case. I am unable to agree............ Secondly, it must be borne in mind that this is a case covered by the IVth explanation to section 21 (1) which, in my view, excludes release of part only of the tenanted accommodation. IVth explanation, which was deleted in 1976, provided that in a case where the landlord resides in a portion of a building the remaining part of which is in occupation of a tenant, the landlord's requirement for the tenanted portion shall be presumed to be bonafide in all circumstances. This presumption, I do venture to think, applied to the whole of the tenanted accommodation and not to any portion thereof." Since in the present case, the case of respondents no. 1 and 2 is squarely covered by Explanation (iii) to section 21 (1) these need of the building for their residential purposes would be deemed to be bona fide as contemplated by section 21 (1) of the Act. 9. In the case of Kalyan Rai v. II Addl. Addl. District Judge, 1982 (1) ARC 363, while considering the effect of section 21 (1-A), the Court observed that it was enacted for providing immediate shelter to the landlord who is left without any accommodation in consequence of having to vacate upon cessation of his employment, a public building. 9. In the case of Kalyan Rai v. II Addl. Addl. District Judge, 1982 (1) ARC 363, while considering the effect of section 21 (1-A), the Court observed that it was enacted for providing immediate shelter to the landlord who is left without any accommodation in consequence of having to vacate upon cessation of his employment, a public building. The legislature appears to have made this provision to meet the exigency arising out of the landlord being confronted with the serious problem of finding an accommodation for his residence after being deprived of the use of public building which was allotted to him and in order that the landlord might rehabilitate himself without going through the rigorous and time consuming process envisaged under section 21 (1) of the Act, the legislature thought that such a landlord might be relieved of the obligation of having to establish that he bona fide requires the accommodation belonging to him or that as between him and his tenant, he would suffer greater hardship. This very object also seems to be while framing the provisions of Explanation (iii) to section 21 and also the IV proviso which governs the same and hence the intention of the legislature seems to be that the need of such landlord would be deemed to be bona fide and genuine and he is not required to prove that he bona fide requires the accommodation belonging to him. 10. Again in Babu Lal v. II Addl. District Judge, 1984 (2) ARC 216, it was held that under section 21 the requirement of comparison laid down by the proviso does not apply to a case covered by Explanation (i) and hence when in the present case, the case of respondents no. 1 and 2 is covered by Explanation (iii), the Prescribed Authority is not required to go into the question of comparison of the hardship that would be caused to the tenant from grant of the application as against the likely hardship to the landlord from refusal of the application. Hence in my opinion, since the case of respondents no. 1 and 2 is covered by Explanation (iii), the Prescribed Authority is not required to go into the question of comparison of the hardship that would be caused to the tenant from grant of the application as against the likely hardship to the landlord from refusal of the application. Hence in my opinion, since the case of respondents no. 1 and 2 is covered by Explanation (iv) of section 21 (1) of the Act, their requirement and need of the building shall be deemed to be sufficient for the purposes of section 21 (1) (a) and it is also not necessary to go into the likely hardship to the parties from the grant of the application. However, in the present case even after noting the contention of the learned counsel for the respondents no. 1 and 2 that their case is covered by Explanation (iii) to section 21 (1), the Addl. District Judge has still applied his mind to the fact whether the need of respondents no. 1 and 2 for the disputed accommodation is bona fide and genuine and after appreciating the evidence on record and applying his mind to the same, recorded a finding that "the appellants are found to be in genuine and pressing need of additional accommodation as the accommodation already in their use and occupation is insufficient and inadequate to meet their requirements", and further held that the hardship of the landlords would be greater if the accommodation is not released in their favour. This finding of fact cannot be interfered by this Court in writ jurisdiction. It was held by the Supreme Court in the case of Munna Lal v. Prescribed Authority, AIR 1978 SC 29 , that where the finding on the question of bona fide need was arrived at by the courts below, it being a finding of fact, the High Court has no jurisdiction to reappraise the evidence and come to its own conclusion different from that reached by the courts below. In Harbansh Lal v. Jagmohan Saran, AIR 1986 SC 302 , the Supreme Court observed that there is no sanction enabling the High Court to reappraise the evidence without sufficient reason in law and reach findings of fact contrary to those rendered by an inferior court or subordinate court. When a High Court proceeds to do so, it acts plainly in excess of its powers. 11. When a High Court proceeds to do so, it acts plainly in excess of its powers. 11. In the case of Manna Lal v. II Addl. District Judge, 1986 (1) ARC 210, it was held that where findings on the bona fide need and comparative hardship were found to be based on evidence led by the parties, High Court in writ jurisdiction cannot re-appreciate that evidence and it cannot be interfered with in writ petition. Hence in view of the law laid down above, even on the findings recorded by the learned Addl. District Judge that the need of respondents no. 1 and 2 for the accommodation in dispute was bona fide and genuine and greater hardship would be caused to them if their release application is not allowed, the application for release of the accommodation was rightly allowed by respondent no. 3 and these findings of fact cannot be interfered with in writ jurisdiction under Article 226 of the Constitution. 12. In the result, there are no merits in this writ petition which is accordingly dismissed with costs. While the judgment was being delivered in the case, Sri K. M. Dayal, learned counsel for the petitioners, prayed that the petitioners may be allowed some time to vacate the accommodation in dispute and handover vacant possession of the same to the contesting respondents no. 1 and 2. If an undertaking is filed by the petitioners before the Prescribed Authority within one month from today that they would vacate the accommodation in dispute and handover vacant possession of the same to respondents no. 1 and 2 by 31st May, 1988, the petitioners shall not be evicted from the accommodation in dispute till 31st May, 1988, provided that the petitioners deposit the damages for use and occupation of the accommodation in dispute due upto 31st May, 1988, within one month from today. Petition dismissed.