Maharaj Bahadur Pradhan v. Ram Pyari — 1988 DIGILAW 326 (ALL)

JUDGMENT S.D. AGARWALA, J. 1. THIS is a petition under Article 226 of the Constitution of India arising out of proceedings under section 21 (1) (a) of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act). 2. THE property in dispute is a first floor portion of premises no. 109/74, Nehru Nagar, Kanpur. Smt. Ram Pyari, widov of Sri Naunihal Bahadur, respondent no. 1, is the landlady of the said premises. Maharaj Bahadur Pradhan, the petitioner, is the tenant. It is not disputed that in a part of the house in dispute, the landlady is already residing with her sons and grand-children. The application under section 21 (1) (a) of the Act was made on the ground that additional accommodation was required for herself and for the members of her family, totalling 18. In the application, it was stated that the petitioner has got his own house at Farrukhabad. The petitioner has also constructed a house of his own (house no. 120/17, Lajpat Nagar, Kanpur), which has been given by the petitioner to his brother-in-law Sri K.B.L. Bhagoliwal as a licensee. It has been further stated that the petitioner had a house at Farrukhabad and since he has retired, he can shift to Farrukhabad for his residence. It was also stated that the landlady did not have any other house in the city of Kanpur and, consequently, seeing the extent of the members of her family and their need, she imminently required additional accommodation for the residence of herself and the members of her family. 3. THE Prescribed Authority did not accept the need set up by the landlady and, consequently, by its judgment dated 26th November, 1982, the application was dismissed. Against the aforesaid decision dated 26th November, 1982, an appeal was filed under section 22 of the Act. THE Appellate Authority, namely, the 5th Additional District Judge, Kanpur Nagar, allowed the appeal, set aside the judgment of the Prescribed Authority and further granted the application for release. 90 days' time was given to the petitioner to vacate the premises. This judgment was delivered on 9th January, 1986. Aggrieved by this judgment, the petitioner has filed the present petition. 4. I have heard the learned counsel for the parties. 90 days' time was given to the petitioner to vacate the premises. This judgment was delivered on 9th January, 1986. Aggrieved by this judgment, the petitioner has filed the present petition. 4. I have heard the learned counsel for the parties. Learned counsel for the petitioner has urged firstly, that the lower appellate court has not considered the facts given in the application for amendment before the appellate authority and, as such, the finding recorded by the appellate authority in regard to the bona fide need is vitiated in law. In effect, the argument was that one son of the landlady Sri R. B. Chitre bad been transferred to Poona from Kanpur and his need, which was set up in the application under section 21 (1) (a) ceased to exist. It was also urged that one of the sons of the landlady, namely, Sri K. B. Saxena, had built a house in Meerut and he had shifted to Meerut after his retirement and, as such, the need of Sri K. B. Saxena also vanished. 5. THE second contention of the learned counsel is that the appellate authority acted illegally and with material irregularity in exercise of its jurisdiction in not considering the effect of Rule 16 (1) (d) of the Rules framed under the Act, and, as such, the impugned judgment is vitiated in law. 6. SO far as first contention is concerned, in paragraph 8 of the present petition, the petitioner averred that during the pendency of the appeal before the appellate authority, certain events took place reducing the strength of the family members, as Sri R. B. Chitre, the third son of the landlady, was transferred from the Inspectorate of Armaments, Panki, Kanpur, to E.M.E. Workshop at Bangalore. In paragraph 9 of the petition, the petitioner himself has stated that Sri R. B. Chitrey managed to get his transfer cancelled for the time being by seeking his transfer in another factory at Kanpur. In the circumstances, it is clear that though during the pendency of the appeal, R. B. Chitrey was transferred, it is the petitioner's own case that, subsequently, the said transfer order was cancelled. In the circumstances, the strength of the family of the landlady remained the same. The non-consideration of the question of transfer of R. B. Chitrey was not required by the appellate authority. In the circumstances, the strength of the family of the landlady remained the same. The non-consideration of the question of transfer of R. B. Chitrey was not required by the appellate authority. In so far as the question of the accommodation with the son of the landlady, namely, Sri K. B. Saxena, is concerned, it is, no doubt, true that he was in Government service. An application along with a supplementary counter affidavit has been filed in this Court on 22nd March, 1988, in which it has been stated that Sri K. B. Saxena died on 30th November, 1987, at Meerut. This affidavit is of the widow of Sri K. B. Saxena and it has been stated by her further in the said affidavit that after the death of K. B. Saxena, she has come to live with the landlady in the house in dispute. In view of this averment, the fact, that Sri K. B. Saxena was posted out side Kanpur or that he had built a house at Meerut, ceased to have any significance because, ultimately, the widow of K. B. Saxena as well as her children are now staying with the landlady whose need was also set up in the application under section 21 (1) (a) of the Act. In the circumstances, in my opinion, the judgment of the appellate authority cannot be said to be vitiated on the ground that the need of R. B. Chitrey and K. B. Saxena was wrongly considered by the appellate authority and that there was no need for them or their families. 7. IN regard to the second contention raised by the learned counsel in regard to Rule 16 (1) (d) of the Rules, the relevant portion of Rule 16 (1) is quoted below:- "16(1). IN considering the requirements of the personal occupation for purposes of residence by the landlord or any member of his family, the Prescribed Authority shall, also have regard to such factors as the following- (a), (b), (c).............................. (d) Where the tenants needs would be adequately met by leaving with him a part of the building under tenancy and the landlord's needs would be served by releasing the other part, the Prescribed Authority shall release only the latter part of the building; (e), (f) and (g)........................" 8. I have gone through the judgment of the appellate authority. (d) Where the tenants needs would be adequately met by leaving with him a part of the building under tenancy and the landlord's needs would be served by releasing the other part, the Prescribed Authority shall release only the latter part of the building; (e), (f) and (g)........................" 8. I have gone through the judgment of the appellate authority. It is, no doubt, true that the appellate authority has not considered the question of Rule 16 1() (d). It may be stated here that this question was not raised by the petitioner before the appellate authority. In any case, since it was mandatory for the appellate authority to have considered the question of the applicability of Rule 16 (1) (d), learned counsel for the parties addressed their arguments before me on this question on merits. At the very outset, it may be stated here that the petitioner has not set up any foundation in his petition in regard to the applicability of Rule 16 (1) (d). Only in one ground IX-A, this question has been raised. The landlady has stated, which has been accepted by the lower appellate court, that the landlady has got four rooms and four kotharis. The appellate authority, after considering the need of the landlady, has recorded a finding that the family of the landlady needs eleven rooms, at least three or four store rooms, two or three latrines, two or three baths. It has further held that four rooms and four kotharis, one latrine, one bath and three verandahs are not sufficient for the need of the landlady. On the basis of this finding, it cannot possibly be said that the four rooms occupied by the tenant would be sufficient to meet the needs of the landlady, which has been found by the appellate authority, namely, of eleven living rooms. Even if the rooms in occupation of the petitioner, namely, four rooms are taken by the landlady then also she will have only eight rooms and she will still be short by three rooms. In the circumstances, the question of serving the landlady's need by releasing a part of the accommodation in occupation of the petitioner does not arise. Even if the rooms in occupation of the petitioner, namely, four rooms are taken by the landlady then also she will have only eight rooms and she will still be short by three rooms. In the circumstances, the question of serving the landlady's need by releasing a part of the accommodation in occupation of the petitioner does not arise. In the circumstances, on merits also, I am of the opinion that the landlady's need could not be served by releasing a part of the accommodation and, consequently, the question of releasing only a part in occupation of the tenant does not arise. This submission of the learned counsel also, in my opinion, lacks substance. 9. IT is necessary to mention that the appellate authority, after examining the evidence in great detail, has come to the conclusion that the need of the landlady is bona fide and genuine. The appellate authority has further considered the question of the hardship of the petitioner. IT has been found that the petitioner has retired from service. He has got his own house at Farrukhabad. He has also got a house constructed bearing No. 120/17, Lajpat Nagar, Kanpur. In this house, initially, it was on rent, but when it was vacated, which was during the pendency of the release application, the petitioner instead of occupying the same permitted his brother-in-law Sri K. B. L. Bhogliwal to occupy the house as a licensee, the petitioner having one house at Farrukhabad, the other at Kanpur and he having retired, is a circumstance, which was very material for the appellate authority to have considered. 10. AFTER examining he impugned judgment, I am of the opinion that in view of the findings of fact recorded by the appellate authority, namely, that the need of the landlady is genuine and that greater hardship would be caused to the landlady in case the release application is not allowed, are findings of fact which need no interference under Article 226 of the Constitution of India in the interests of justice. In the result, the petition fails and is, accordingly, dismissed. The parties are directed to bear their own costs. 11. LEARNED counsel for the petitioner prays that he may be granted three months' time to vacate the premises on an undertaking given by the petitioner to vacate the premises after three months and hand over vacant possession to the landlady. In the result, the petition fails and is, accordingly, dismissed. The parties are directed to bear their own costs. 11. LEARNED counsel for the petitioner prays that he may be granted three months' time to vacate the premises on an undertaking given by the petitioner to vacate the premises after three months and hand over vacant possession to the landlady. In the interest of justice, this prayer, in my opinion, is justified. I, accordingly, grant three months time to the petitioner to vacate the premises from today, provided the petitioner gives an undertaking within three weeks from today before the prescribed authority that he shall vacate the premises immediately after the expiry of three months and hand over vacant possession to the landlady, namely, respondent no. 1 the shall further deposit compensation, if any, due as arrears as also for three months in advance within this period. In case of default, the release order shall be enforced forthwith. Petition dismissed.