Yashoda Nandan Pathak v. Vishnu Kumar Gupta — 1988 DIGILAW 676 (ALL)

JUDGMENT S.D. Agarwala, J. - This is petition under Article 226 of the Constitution of India arising out of proceedings under Section 21 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act). 2. Vishnu Kumar Gupta, respondent No. 1, is the landlord of the premises in dispute. Yashoda Nandan Pathak, the petitioner, is the tenant. The property in dispute is a portion of the first floor of house No. 38-A, Thornhill Road, Allahabad. A part of the portion of the first floor is in the occupation of the landlord. The disputed portion consists of two rooms, a verandah, kitchen, small terrace on the first floor, and the latrine and bath room on the ground floor, the details of which have been given in the application filed under Section 21 of the Act. 3. Vishnu Kumar Gupta, who is an advocate of this Court, filed an application under Section 21(a) of the Act for release of the portion in occupation of the petitioner on the ground of his personal need for additional accommodation. The petitioner in his objections has urged that the need of the landlord is not bonafide and that the portion in his occupation is sufficient to satisfy his needs. 4. The Prescribed Authority by a detailed judgment dated 24th September, 1986, allowed the release application. Against the judgment dated 24th September, 1986, the petitioner filed Civil Appeal No. 439 of 1986 under Section 22 of Act. This appeal came up for hearing before the 7th Additional District Judge, Allahabad. The Appellate Authority by its judgment dated 25th April, 1987, dismissed the appeal and allowed to the petitioner one month's time for handing over vacant possession of the premises to the respondent. The petitioner did not vacate the premises and filed the present petition challenging the order dated 24th September, 1986 passed by the Prescribed Authority, as well as the order dated 26th April, 1987, passed by the Appellate Authority. 5. I have heard Shri Rama Nand, learned counsel for the petitioner, and Shri K.N. Tripathi, learned counsel for the respondent-landlord. 6. Learned counsel for the petitioner has raised many contentions before me. His contentions are as under : 1. Section 3(e) of the Act is ultra vires the Constitution of India. 2. 5. I have heard Shri Rama Nand, learned counsel for the petitioner, and Shri K.N. Tripathi, learned counsel for the respondent-landlord. 6. Learned counsel for the petitioner has raised many contentions before me. His contentions are as under : 1. Section 3(e) of the Act is ultra vires the Constitution of India. 2. The application filed by the landlord-respondent under Section 21 of the Act was not filed with the bonafide intention, but was filed to harass the petitioner-tenant. 3. The need of the landlord was neither bonafide, nor pressing nor genuine. The findings recorded by both the authorities below are perverse and based on no evidence. 4. The Authorities have not compared the needs of the landlord and tenant. 5. The accommodation in occupation of Bhuwan Malviya the step-son of the petitioner, is not available to the petitioner and, as such, the finding on the question of hardship based on it is vitiated in law. 7. In so far as the first contention is concerned, I have already taken a decision in Civil Misc. Writ No. 191 of 1987, Hari Shankar Misra v. The Prescribed Authority, Allahabad and others, which I have decided on 2nd August, 1988, in which I have already taken the view that Section 3(e) of the Act is not ultra vires the Constitution of India. In respect of this submission, Shri K.N. Tripathi, learned counsel for the respondent, has placed reliance on a decision of the Hon'ble Supreme Court in M/s. Beopar Sahayak (Pvt.) Ltd. and others v. Vishwa Nath and others, 1987(2) ARC 145 and has urged that the 'de facto doctrine' applies to the instant case, as an appeal was filed against the judgment of the Prescribed Authority and the Appellate Court has also affirmed the said judgment. In this case, the Hon'ble Supreme Court has categorically held that the 'de facto doctrine' would apply in such a case and that it will disentitle any person to impugn the validity of the release order on the ground of want of jurisdictional competence. It was further held that a person cannot be permitted to challenge the validity of the appointment of the Prescribed Authority in a collateral proceeding. The principle laid down in this case fully applies to the present case. In the circumstances, this submission has no substance. 8. It was further held that a person cannot be permitted to challenge the validity of the appointment of the Prescribed Authority in a collateral proceeding. The principle laid down in this case fully applies to the present case. In the circumstances, this submission has no substance. 8. The second and the third submissions raised by the learned counsel in effect, challenge the concurrent findings recorded by both the authorities below that the need of the respondent-landlord is bonafide and genuine. In respect of these two contentions, the first aspect urged by the learned counsel for the petitioner is that the authorities below have wrongly considered the Commissioner's report though objections had been filed against the said report and, as such, the findings recorded in regard to the bonafide need are vitiated in law. 9. The Commissioner's report has been attached as Annexure 4' to the writ petition. The objections, which have been filed by the petitioner, is Annexure 5' to the writ petition. On a perusal of the objections filed by the petitioner to the Commissioner's report, it is apparent that the main objection of the petitioner was in regard to the fact that the Commissioner has stated in his report about the various articles which were found in the room in occupation of the respondent-landlord. There is no objection to the extent of the accommodation, which has been enumerated by the Commissioner in his detailed report. Sri Rama Nand, the learned counsel for the petitioner, has also stated before me that the extent of the accommodation, as given in the Commissioner's report, is not disputed by him. 10. In paragraph 25 of the counter-affidavit of Vishnu Kumar Gupta, it has been stated that the petitioner and his counsel, after filing the objections, appeared in the morning session before the Court on 22nd July, 1986, the date fixed for advancing arguments on the Commissioner's report, and requested the Court to take up the case after lunch. After lunch, the petitioner and his counsel deliberately absented. The Court, thereafter, perused the objections filed by the petitioner and its reply filed by the respondent-landlord and, thereafter, confirmed the report of the Commissioner and granted an opportunity to the parties to file any evidence, they so desire, within seven days thereafter. The petitioner failed to file any evidence. After lunch, the petitioner and his counsel deliberately absented. The Court, thereafter, perused the objections filed by the petitioner and its reply filed by the respondent-landlord and, thereafter, confirmed the report of the Commissioner and granted an opportunity to the parties to file any evidence, they so desire, within seven days thereafter. The petitioner failed to file any evidence. The petitioner even did not file any affidavit in support of his objections for challenging the facts mentioned in the said report. 11. In reply to these averments, in paragraph 27 of the rejoinder affidavit, it has not been specifically denied that what has been stated in paragraph 25 of the counter-affidavit, but the allegation is that the Prescribed Authority did not properly look into the objections filed by the petitioner and simply passed the order confirming the report of the Commissioner without giving a finding on the objections. 12. In paragraph 13 of the counter-affidavit, the order passed by the Prescribed Authority on the objections of the petitioner has been quoted. The order is quoted below : "Heard the applicant on the report of the Commissioner 35-B and objection against it i.e., 36-Ba and 37-Ba the counter-objection against the objection of the opposite party. Order The report 35 Ba is confirmed subject to evidence of the parties. However, if parties want they may further file evidence within 7 days. Put up on 12.8.1986 for argument. Sd/- Dated 22.7.1986." 13. In paragraph 14 of the counter-affidavit, it has been categorically stated that inspite of the fact that the Prescribed Authority had given opportunity to the parties, including the petitioner, to the file further evidence, no evidence was filed by the petitioner. This fact is not disputed by the petitioner. 14. From the above facts, it is consequently, clear that the petitioner did not appear before the Prescribed Authority to press his objections. Inspite of this, the Prescribed Authority did consider the objections and the report of the Commissioner was confirmed subject to the evidence of the parties. The Prescribed Authority gave a specific opportunity to both the parties to produce any evidence which they wanted to do, as the confirmation of the report was subject to the evidence of the parties, but the petitioner did not file any evidence thereafter. I have already stated above that the petitioner does not dispute the extent of the accommodation mentioned in the Commissioner's report. I have already stated above that the petitioner does not dispute the extent of the accommodation mentioned in the Commissioner's report. In the circumstances, I do not find any prejudice being caused to the petitioner by the fact that the report of the Commissioner was considered by the Prescribed Authority as well as the Appellate Authority or that by the consideration of the Commissioner's report, the finding in regard to bonafide need was, in any manner, vitiated. The Commissioner's report was confirmed subject to the evidence of the parties, if any, and none of the parties produced any further evidence, including the petitioner. 15. Learned counsel for the petitioner in support of his submission has relied upon a decision of this Court in A.N. Tandon v. G.K. Bhargava, 1987(1) ARC 297, Hon'ble Saghir Ahmad, J., has taken the view that since the objections had been filed to the Commissioner's report. So far as the proposition of law is concerned, it is not disputed. I agree with Hon'ble Saghir Ahmad, J., but the principle laid down in that case does not apply to the facts of the present case. In the instant case, the report was confirmed not subject to objections, but subject to further evidence. No affidavit was filed in support of the objections neither any evidence was furnished thereafter, and, consequently the Court took the Commissioner's report into consideration which it could legally do because of the fact that no evidence was produced by the petitioner challenging the contents of the report. In this view of the matter, in my opinion, the case of A.N. Tandon v. G.K. Bhargava (supra) does not advance the arguments raised on behalf of the petitioner. 16. The second aspect which has been urged on behalf of the petitioner in regard to the second and the third contentions raised by the petitioner that mere desire to have additional accommodations is not enough, but actual need should be established by the respondent-landlord. In support of this submission, he has relied upon a decision of this Court in Ajit Prasad v. The IVth Addl. District Judge Meerut and others, 1 ARC 73. The learned counsel has relied upon the following proposition laid down by this Court : "The word "bonafide" is a latin of ablative, meaning 'in good faith'. In support of this submission, he has relied upon a decision of this Court in Ajit Prasad v. The IVth Addl. District Judge Meerut and others, 1 ARC 73. The learned counsel has relied upon the following proposition laid down by this Court : "The word "bonafide" is a latin of ablative, meaning 'in good faith'. The need of a landlord, therefore, should not be dishonest, and an application should not be filed by a landlord with an oblique motive. It should further not be a device to evict tenant. Similarly, the word "required" signifies that a mere desire on the part of landlord is not enough. The requirement of a landlord has to be objectively satisfied, being not a matter of subjective satisfaction. A Court has, therefore, to ascertain objectively whether a landlord requires a premises honestly and in good faith." 17. I respectfully agree with this decision. The learned counsel has also relied upon certain observations made by the Hon'ble Supreme Court in M/s. Variety Emporium v. R.M. Mohd. Ibrahim Naina, AIR 1985 Supreme Court 207. The observations relied upon are as under : "Apart from this, it is quite disparaging to describe a tenant's attempt to resist eviction by lawful means as a 'hue and cry'. And, it is inequitous in the extreme that any Court of law, and least of all a Rent Act Tribunal which has to deal with a human problem of great magnitude, should regard it as a matter of no moment that order of eviction will throw the tenant on the street. A Judge does not have to wear a shoe in order to know where it pinches. Therefore, he does not have to face the prospect of being driven to the street in order to realise what it means. His training, legal equipment and experience of life are his tools of education and social awareness. We do not suggest that a decree of eviction can never be passed against a tenant but, whether the provisions of a law specifically require it or not, the Court has to have regard for all the aspects of the matter before it and the foreseeable consequences of the order which it proposes to pass. We do not suggest that a decree of eviction can never be passed against a tenant but, whether the provisions of a law specifically require it or not, the Court has to have regard for all the aspects of the matter before it and the foreseeable consequences of the order which it proposes to pass. Finally, it is impossible to subscribe to the view of the Appellate Court that the very fact that the respondent had filed the eviction petitions immediately after he purchased the property proves that the purpose of purchasing the property was to set up a business there, 'whether wholesale or retail'." 18. The sum and substance of what has been laid down by this Court as well as by the Supreme Court in that actual need of the landlord who makes an application under Section 21 of the Act has to be considered. There mere desire to have an additional accommodation is not enough and that the tenant's case should not be disregarded, as he has a right to resist eviction and the Court has to have regard for all the aspects of the matter before it and the foreseeable consequences of the order which it proposes to pass. 19. I have examined the judgment of the Prescribed Authority as well as the judgment of the Appellate Authority. Both the Authorities have gone into the actual need of the respondent-landlord and have categorically found, after considering the evidence on the record, that the need of the respondent-landlord is bonafide and genuine. The Authorities have considered the fact that the landlord-respondent is a leading lawyer of the High Court. He has a son who has joined the learned profession. The respondent-landlord has three juniors with him and he is also maintaining three clerks for his office. The authorities have also considered the personal need of the landlord-respondent for residential purposes for himself and the members of his family in great detail. It is after considering all these aspects of the matter, that both the Prescribed Authority as well as the Appellate Authority have recorded a concurrent finding in favour of the respondent-landlord that the need of the respondent-landlord is bonafide and genuine for additional accommodation. It is after considering all these aspects of the matter, that both the Prescribed Authority as well as the Appellate Authority have recorded a concurrent finding in favour of the respondent-landlord that the need of the respondent-landlord is bonafide and genuine for additional accommodation. It is clear from the findings that it is not a mere desire to get the accommodation of the petitioner, released, but the finding is that there is actual need for the accommodation. The authorities have considered all the aspects in regard to the actual need of the respondent-landlord as well as taken into consideration all other relevant aspects of the matter. In the circumstances, I do not find any legal infirmity in the findings in regard to bonafide need recorded by the Courts below. They are clearly findings of fact which are not vitiated in law. 20. It is not disputed by the petitioner, as found in the Commissioner's report, that there are six rooms on the ground floor in occupation of the respondent/landlord and two rooms on the first floor. The size of most of the rooms is small. One of the rooms is being used as kitchen. In effect, even if the store room is taken into consideration then too there are only seven rooms with the respondent/landlord. The landlord is a leading advocate of this Court. He requires at least one big room for his office. The only son of the landlord after completing his education in law has joined the profession of law and is practising in the High Court. He requires at least one room for his office. There are three juniors of the landlord. At least one room is required for the juniors. The minimum requirement for the three clerks and for keeping the files etc. is at least one room. In the circumstances, four rooms are required for the purposes of the office only. The members of the family of the landlord are, as stated in paragraph 3 of the application under Section 21(1) of the Act. The family of the landlord consists of the following members : 1. The landlord himself. 2. His wife. 3. Daughter Dolly, aged about 23 years in 1985 now 26 years. 4. Son Manoj, aged about 21 years (now 24 years). 5. Daughter Km. Ashu, aged about 17 years, now 20 years. 6. Daughter Km. The family of the landlord consists of the following members : 1. The landlord himself. 2. His wife. 3. Daughter Dolly, aged about 23 years in 1985 now 26 years. 4. Son Manoj, aged about 21 years (now 24 years). 5. Daughter Km. Ashu, aged about 17 years, now 20 years. 6. Daughter Km. Anju, aged about 12 years, (now 16 years). 7. Master Dabbu, aged about 12 years, (now 15 years). 21. it is not disputed that daughter Dolly now has been married. Manoj has started practising as a lawyer in the Court. Km. Ashu and Km. Anju are still not married. Master Dabbu is the son of the real brother-in-law (Sala) of the landlord and, as stated by the landlord, is wholly dependent upon him and is residing with him. 22. The petitioner has urged that the need of dolly who has been married, should not be considered. His further case is that the need of Master Dabbu, who is not a member of the family of the landlord, is not to be considered. Dispute has been raised by the learned counsel for the respondent/landlord on this question but even leaving aside these disputes, the admitted position is that one room would be required by the landlord and his wife, one room would be required by the son Manoj who has started practice and, as stated in the application under Section 21(1) of the Act, the said son has attained marriageable age, but his marriage is being delayed due to the paucity of accommodation. In the circumstances, at least one separate room is required for his residence. At least one room will be required for the two unmarried daughters. Km. Ashu and Km. Anju, who are 20 and 16 years old respectively. Considering the status of the respondent-landlord, minimum one room is required for the drawing room and one for the dining purposes. In the circumstances, minimum five rooms are required for the residence. In this requirement, I have not considered the need for a guest room nor the need for the stay of the married daughter when she comes to her parents' place. In the circumstances, the minimum requirement of the respondent-landlord is at least nine rooms bodies kitchen etc. Admittedly only seven rooms are there, besides the kitchen in occupation of the landlord. In the circumstances,s the requirement of two additional rooms is imminent and bonafide. In the circumstances, the minimum requirement of the respondent-landlord is at least nine rooms bodies kitchen etc. Admittedly only seven rooms are there, besides the kitchen in occupation of the landlord. In the circumstances,s the requirement of two additional rooms is imminent and bonafide. It may be pointed out here that the minimum requirement of two additional rooms, no doubt is there, but the landlord still requires further accommodation. The landlord is a leading advocate and he requires at least one room for the guests. One room for his married daughter when she comes to spend time at her parents, place is also required. This may be used for dressing purposes also for the three daughters. One room will also be required for Master Dabbu, who is also residing with him. 23. In Smt. Kamla Ahuja v. VIth Addl. District Judge, 1981(1) U.P.R.C.C. 199 : 1981 ARC 371, I have taken the view that even though a person may not come in the definition of the word family, as defined under the Act, but if the said relation is staying with the landlord permanently the need of the landlord will be there to accommodate that person and, consequently, the need of the landlord for the residence of Master Dabbu is there. It this further requirement of the landlord is considered then even the room which are in occupation of the petitioner, will not be enough to satisfy the need of the landlord. Prima facie therefore, it is clear that the need of the landlord for additional accommodation is bonafide and genuine and in this view of the matter also, it cannot be said that the finding in regard to bonafide need recorded by the authorities below is, in any manner, vitiated in law. 24. The 4th and 5th submissions raised by the learned counsel for the petitioner relate to the comparison of the hardship caused to the landlord and the tenant in case the release application is allowed. In regard to these contentions, the only objection of the petitioner is that the authorities have wrongly considered the accommodation with Shri Bhuwan Malviya as an accommodation available to him for the purposes of his residence, in case he is evicted from the premises in dispute. 25. In regard to these contentions, the only objection of the petitioner is that the authorities have wrongly considered the accommodation with Shri Bhuwan Malviya as an accommodation available to him for the purposes of his residence, in case he is evicted from the premises in dispute. 25. In regard to the findings on the question of hardship, it is well settled that it is not necessary to provide an alternative accommodation to a tenant in case the release application is allowed. This is only a relevant circumstance to be considered when the question of hardship is being considered by the Authorities. I have examined the findings of the Prescribed Authority as well as the Appellate Authority. The finding on the question of comparative hardship of the landlord and there tenant is not this has been considered as an additional aspect against the tenant. Even if this is excluded it does not, ultimately, affect the concurrent finding in regard to hardship recorded by the authorities below. In so far as the accommodation in occupation of Bhuwan Malviya is concerned, in paragraph 11 of the affidavit filed in support of the application under Section 21(1) of the Act, it was stated that the eldest son of the petitioner Bhuwan Malviya has acquired another accommodation on rent in house No. 332, Mumfordganj, Allahabad, belonging to Sri B.N. Srivastava, in the year 1982. The said accommodation is a spacious accommodation. In paragraph 24 of the said affidavit, it has been further stated that Bhuwan Malviya is earning a huge amount of money as a radio and television technician and he has already acquired a house at Mumfordganj, Allahabad, in a vacant state and is living there. The petitioner-tenant can reside with the said son. This affidavit has been given by the landlord himself and is Annexure 2' to the writ petition. The counter-affidavit to this affidavit of Vishnu Kumar Gupta has been attached as Annexure 3' to the writ petition. Paragraphs 13 and 26 of this counter-affidavit contain the reply of paragraphs 11 and 24 of the affidavit of Vishnu Kumar Gupta. This counter-affidavit is sworn by the petitioner himself. The petitioner has denied the contents of paragraph 11 on the ground of want of knowledge. He has not denied the fact the Bhuwan Malviya is his step son. Paragraphs 13 and 26 of this counter-affidavit contain the reply of paragraphs 11 and 24 of the affidavit of Vishnu Kumar Gupta. This counter-affidavit is sworn by the petitioner himself. The petitioner has denied the contents of paragraph 11 on the ground of want of knowledge. He has not denied the fact the Bhuwan Malviya is his step son. He has not further denied the fact that he has acquired a house at Mumfordganj, which is a spacious accommodation. He has also not denied that he is earning a huge amount of money in the business which he is carrying on. The only case set up by him is that he has no knowledge of those facts and then it has been stated that he is not on visiting terms with his step-son. 26. It may also be mentioned here that in para 8 of the affidavit of Vishnu Kumar Gupta, it was further stated that the petitioner's family consists of his wife and three sons, including Bhuwan Malviya. In paragraph 10 of the counter-affidavit in reply, the petitioner has only stated that Bhuwan Malviya is a step-son and that he had left the house in question after his marriage. 27. From the above facts on the record, it is clear that Bhuwan Malviya, though a step-son of the petitioner, did stay with the petitioner till he was married. He has acquired a spacious building in the city of Allahabad and is carrying on business. The petitioner has made only a bald averment in the affidavit that his relations with Bhuwan Malviya are not cordial, but are strained, but no further evidence has been produced to establish this fact. On the basis of the above facts, it is clear that it cannot be said that the finding in record to comparative hardship recorded by the authorities below considering one of the circumstances that there would be no hardship to the petitioner in case he is evicted as he has already an alternative accommodation because his son has already got an accommodation at Mumfordganj, in the city of Allahabad, cannot be said to be a finding vitiated in law. In the circumstances, the fourth and the fifth submissions raised by the learned counsel for the petitioner are not substantiated. In the circumstances, the fourth and the fifth submissions raised by the learned counsel for the petitioner are not substantiated. The concurrent findings in regard to hardship recorded by both the authorities below are, in my opinion, consequently, not vitiated in any manner. 28. Learned counsel for the respondent has vehemently urged that the petitioner is disentitled to any discretionary relief under Article 226 of the Constitution of India, as he has not come to this Court with clean hands and has obtained an interim order to stay from this Court on 13th May, 1987, by misleading the Court. The respondent-landlord in this regard has made an application on 20th May, 1987, supported by an affidavit. In paragraph 4 of the affidavit filed in support of the application, it has been stated that the petitioner deliberately in order to mislead this Court, and to take illegal and undue advantage, omitted relevant portions of the order of the Prescribed Authority to be made part of the writ petition. In the counter-affidavit which has been filed to this application, it has not been denied that there are omissions in the typed judgment of the Prescribed Authority which had been filed alongwith the writ petition, but the defence set up in the counter-affidavit is that it was due to inadvertence of the typist that there was a typing error and some portions were left to be typed. 29. I have gone through the typed judgment of the Prescribed Authority which has been filed along with the writ petition. On examining the same, I find that two most material portions where the question of need and hardship was compared had been clearly omitted. It does not appear to me to be a mere typing error. It appears to be a deliberate act on the part of the petitioner to mislead this Court and it does appear that it was because of this that he succeeded in obtaining an interim order from this Court on 13th May, 1987. 30. It does not appear to me to be a mere typing error. It appears to be a deliberate act on the part of the petitioner to mislead this Court and it does appear that it was because of this that he succeeded in obtaining an interim order from this Court on 13th May, 1987. 30. In Asiatic Engineering Company v. Achru Ram, AIR 1951 Allahabad 746, a Full Bench of this Court had taken the view that a person obtaining an ex parte order or rule nisi by means of a petition under Article 226 of the Constitution of India must come with clean hands, must not suppress any material facts from the Court, must refrain from making misleading statements and from giving incorrect information to the Court and if he does so then he is disentitled to any relief under Article 226 of the Constitution of India. The principles laid down in this case have been relied upon by Bench of this Court of which I was a member in Civil Misc. Writ No. 15766 of 1986, Kuldip Singh Rajput v. Punjab National Bank, 1988 UPLBEC 231 and it was held that if material facts have been concealed by the petitioner under Article 226 of the Constitution of India, he is entitled to be heard on merits. The principle laid down in the above authorities is fully applicable in the present case. The petitioner deliberately omitted to get the most material and relevant portions of the judgment of the Prescribed Authority in order to mislead this Court and in order to obtain an ex parte order. In the circumstances it is a case where no interference is called for under Article 226 of Constitution of India. 31. In the result, I do not find any merit in this petition. It is, accordingly, dismissed. In the circumstances of the case, the parties are directed to bear their own costs.