Naseeruddin v. Prescribed Authority — 1988 DIGILAW 319 (ALL)

JUDGMENT R.P. Singh, J. - This Writ petition is directed against an order passed by the IVth Addl. District Judge, Meerut, dated 17.3.88 dismissing the appeal and upholding the order passed by the Prescribed Authority allowing the release application filed by the landlord Amar Singh Yadav, respondent No. 3, in proceedings under Section 21(1)(a) of the U.P. Act XIII of 1972. 2. The facts of the case briefly are that respondent No. 3 filed an application under Section 21(1)(a) of the Act on the ground that he is the owner and landlord of the shop in dispute of which the petitioners are the tenants and that after his retirement from service, he wants the shop in dispute to start his 'parchun' business therein and that his need for the same was bonafide and genuine and greater hardship would be caused if the application for the release of the accommodation is not allowed. The application was contested by the petitioners on the ground that the need of respondent No. 3 is not bonafide and genuine and that only one of the co-owners of the disputed accommodation was not entitled to file the application without the other co-owners joining him in application, and further that the petitioners would be put to greater hardship if the application for release is allowed. The Prescribed Authority, on going through the evidence on record held that the need of respondent No. 3 for the accommodation in dispute is bonafide and genuine and that after the retirement the respondent No. 3 does require the accommodation in dispute to start his business therein to earn his livelihood and greater hardship would be caused if the release application is not allowed in his favour. Prescribed Authority held that the need of respondent No. 3 is bonafide and genuine. Regarding the question of maintainability of the application by respondent No. 3 who is one of the co-owner of the disputed accommodation, the Prescribed Authority held that the application was maintainable at his instance. On these findings the Prescribed Authority allowed the application. The petitioner feeling aggrieved went up in appeal before the IVth Addl. District Judge, respondent No. 2 in the case who also dismissed the appeal holding that the need of respondent No. 3. for the accommodation in dispute is bonafide and genuine and greater hardship would be caused if the accommodation is not released in his favour. The petitioner feeling aggrieved went up in appeal before the IVth Addl. District Judge, respondent No. 2 in the case who also dismissed the appeal holding that the need of respondent No. 3. for the accommodation in dispute is bonafide and genuine and greater hardship would be caused if the accommodation is not released in his favour. He further held that the release application filed by respondent No. 3 who is one of the co-owners of the disputed accommodation was maintainable. Feeling aggrieved against the orders passed by respondents 1 and 2, the petitioner had filed the present writ petition before this Court. 3. The learned counsel for the petitioner strenuously urged that respondent No. 3 is only one of the co-owners of the disputes accommodation and he was not the sole landlord and other co-owners having not joined, the application filed under Section 21(1)(a) was maintainable. I find no merit in this submission. The point has now been concluded by a decision of the Full Bench of this Court in the case Gopal Das v. Ist Additional District Judge, Varanasi, reported in 1987(1) Allahabad Rent Cases 281 (FB) where this Court has held : "However, we may point out that the requirement of Rule 15(2) that an application for release of the 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 landlord within the meaning of Section 3(j) of the Act. One co-owner alone would be competent to sign such an application." In the case of Sri Ram Pasricha v. Jagannath and others, reported in AIR 1976 Supreme Court 2335, the Supreme Court has 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 others 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. 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). 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). It is not necessary to establish that the plaintiff is the only owner of the property for the purpose 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." 4. The same view has been held in the case of Smt. Vatsala Nayar v. Smt. Vandana Tandon, reported in 1983(1) ARC 57 and in the case of Om Prakash Sharma v. District Judge Etah and others, reported in 1983(1) ARC 524. In view of the discussion above, it is clear that the application moved by respondent No. 3 is maintainable, he being one of the co-owners of the accommodation in dispute. 5. It was further argued by the learned counsel for the petitioner that the rent had been collected by Dal Chand son of Ramji Lal who was one of the co-owners and not by respondent No. 3 and, therefore, Dal Chand alone being the landlord, he alone is entitled to file the application for release under Section 21(1)(a) of the Act. I find no merit in this submission also. It has been held by this Court in Lakshmi Shanker Misra v. Ist Additional District Judge and others, reported in 1977 ARC 7, that it is only by such landlords to whom the rent is payable and not by whom it is collected, that the application under Section 21(1)(a) can be filed. Again in the case of Smt. Sughra Begum v. Sri Ram and others, reported in 1983(2) ARC 143, it was held by this Court that only a person who is entitled to occupy the house in his own right can alone file the release application. Thus, an agent and attorney of an owner of a house may realise the rent of the house but such a person would not be entitled to move an application under Section 21. Thus, an agent and attorney of an owner of a house may realise the rent of the house but such a person would not be entitled to move an application under Section 21. Again in the case of E.E. Daual v. Smt. Phoolmani Dayal and others, reported in 1977 ARC 4, (Short Notes) it has been held that an attorney or an agent cannot become a landlord and hence such person cannot file an application for the release of the accommodation under Section 21(1)(a) of the Act. In the present case the respondent No. 3 being admittedly one of the co-owners of the accommodation in dispute and entitled to occupy the house as an owner and also being a person to whom the rent is payable under the law was fully competent to file the application for the release of the accommodation under Section 21(1)(a) of the Act. Hence, I find no merit in the submission made by learned counsel for the petitioner that respondent No. 3 could not file the application for the release of the accommodation. 6. The learned counsel for the petitioner then contended that Rahmat Ullah who was the original tenant of the accommodation had others heirs also put in the present case, they were not impleaded as a party in the case, and hence the orders passed by the respondents 1 and 2 in the absence of those heirs is vitiated. I have gone through the orders passed by respondents 1 and 2 and there is no discussion on the point that there were some other heirs also of Rahmat Ullah who were not impleaded in the case. It appears that this point was never pressed before the Prescribed Authority or the Additional District Judge in appeal. Hence, I would not entertain this submission for the first time in Writ Jurisdiction before this Court. Hence I see no merits in this submission also of the learned counsel for the petitioner. 7. Regarding the question of the bonafide need and comparative hardship, there is concurrent finding recorded by the Prescribed Authority and also in appeal by the Additional District Judge, Meerut that the need of the respondent No. 3 for the accommodation in dispute is bonafide and genuine and that greater hardship would be caused if the accommodation is not released in his favour. This Court sitting in writ jurisdiction is not competent to reappraise the evidence and set aside the finding so arrived at after appraisal of the evidence and applying their mind to the same. I find no error in the orders passed by respondents 1 and 2. 8. In the result, there are no merits in this writ petition which is accordingly dismissed. 9. In the end the learned counsel for the petitioner prayed that some time may be allowed to the petitioner to vacate the accommodation in dispute and hand over peaceful possession of the same to respondent No. 3. In case an undertaking is filed by the petitioners before the Prescribed Authority, Meerut, respondent No. 1 within a period of one month from today that they would vacate the disputed accommodation and hand over peaceful possession of the same to respondent No. 3 till 31st July, 1988, the petitioner shall not be dispossessed from the accommodation in dispute till 31st July, 1988. However, in case no undertaking is filed by the petitioners within a period of one month from today, as stated above, it would be open to the respondents to evict the petitioners forthwith in accordance with law. 10. With these observations the writ petition is dismissed. 11. A certified copy of this order may be given to learned counsel for the petitioner on payment of necessary charges till 2nd April, 1988.