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1989 DIGILAW 538 (ALL)

Sarojrani Others v. 10th ADJ, Lucknow Others

1989-07-20

B.L.LOOMBA

body1989
JUDGMENT B.L. Loomba, J. - This is a landlord tenant dispute relating to House No. 78/69 New Ganeshganj, Lucknow. Ram Mohan Lal Srivastava (since dead) was the ownerlandlord of this house. He filed petition under Section 21 of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, in the year 1972 against Tilak Raj (since dead) and Prabhu Dayal (since dead) tenants in the house, seeking release of the house on the ground that the same was needed bona fide for occupation by himself and members of his family. It is unfortunate and highly regrettable that the litigation has taken so long a time and the dispute is now taken up for consideration and decision by this court after over 16 years. 2. Petitioners 1 to 5 are legal representatives of late Tilak Raj and are in occupation of the accommodation at the ground floor consisting of three rooms, kitchen and toilet etc. Petitioners 6 (since dead) and 7 to 10 are heirs and legal representatives of Late Prabhu Dayal and are in occupation of the accommodation at the first floor consisting of three rooms, kitchen and toilet etc. Respondent no. 3 is son of Late Ram Mohan Lal Srivastava and respondent no. 4 is his sister. Ram Mohan Srivastava and thereafter his son Harbans Rai respondent no. 3 has been living with his family in a rented house in the same area situate at a distance of about 50 yards from the house in dispute. 3. The Prescribed Authority decided the petition for release of the house on 12886 (after about 14 years). Release application of the landlord was rejected on the ground that the landlord was comfortably settled in the rented house which has accommodation of two rooms, in the sizes of 14'x 8' and 18' x 14' with a small store, verandah, kitchen and toilet etc. and further he has a room at the ground floor of the disputed house in the size of 15'xl2'. The landlord's appeal under section 22 of the Act was allowed by Additional District Judge, Lucknow, by his judgment and order dated 10289 (Annexure 13). The learned Additional District Judge took into consideration the developments subsequent to the filing of the release application, both in relation to the landlord and the two sets of tenants and came to the conclusion that need of landlord (respondent no. The learned Additional District Judge took into consideration the developments subsequent to the filing of the release application, both in relation to the landlord and the two sets of tenants and came to the conclusion that need of landlord (respondent no. 3Harbans Rai) for the house in question was bona fide and genuine. He did not agree with the approach of the Prescribed Authority that the ground floor room in the house in question combined with the rented accommodation already with landlord was sufficient to meet the requirements of the family. As to the second set of tenants, namely, respondents 6 to 10 it was found that respondent no. 6 Smt. Angoori had died and respondent no. 8 Radha Kishan, (one of the brothers) had already acquired middle income group House no. 180/1 Tikait Rai Talab Colony, Lucknow and that this second set of tenant i.e. respondents 7 to 10 can easily shift to that house. First set of tenants i.e. petitioners 1 to 5 (of this writ petition) can be allotted the accommodation which may be vacated by the landlord. Accordingly, the learned Additional District Judge allowed the release application and directed that the accommodation to be vacated by the landlord may be considered for allotment in favour of first set of tenants (petitioners 1 to 5) on preferential basis. 4. The petitioners have assailed the judgment and order of the learned Additional District Judge on the grounds: (i) that the need of the landlord for release of the accommodation ought to have been considered as set up originally in the release application; (ii) it was not open to the appellate authority to make reappraisal of the evidence so as to change the very basis on which the release application was rejected by the Prescribed Authority and that no proper evaluation of the comparable hardship of the parties has been done by the appellate authority. It is also submitted that the factor relating to the status of the landlord ought not to have been taken into account by the appellate authority, and (iii) finally, that arrangement suggested in the order of the appellate authority for first set of tenants (petitioners 1 to 5) is of no consequence because the accommodation to be vacated by the landlord may not be allotted in their favour. 5. 5. The submission of the petitioner's counsel that subsequent developments cannot be taken into consideration is not correct and has to be rejected. The law is now well settled that the subsequent development can and, I think, ought to be considered. If the need of a landlord at the time when release application is moved is found to be genuine but on account of subsequent development the need no more remains it would not be justified to direct release of the accommodation simply because on the facts and circumstances at the time of the moving of the application the need was bona fide and genuine. Likewise the reverse situation becomes relevant. As such, the learned Additional District Judge rightly considered the subsequent developments at the time when he decided the matter. 6. The original landlord Ram Manohar Lal Srivastava had sought release mainly on the ground of his own need. That ground became unavailable because Ram Manohar Lal Srivastava died when the matter was taken up by the appellate authority. However, the children of Harbans Rai, son of Ram Manohar Lal Srivastava in due course became grown up and for that requirement of the family for more accommodation became bona fide and genuine. It is the undisputed position that the family of the landlord as at present is composed of landlord, his wife, four daughters and a son. The eldest daughter is aged about 21 years, the second a year younger and the third aged about 18 years, and the youngest daughter is aged about 11 years. All the five children are studying in various classes starting from VIII to M.A. These five young students necessarily need proper accommodation for comfortable living and place to sit apart and devote to their studies. The landlord Harbans Rai is Head Clerk in State Bank, main branch at Hazrat Ganj drawing quite handsome emoluments. Term 'bona fide' means genuinely or sincerely, that is, in good faith and in contradistinction to malafide. In this context while mere desire on the part of a landlord is not enough but if there is a clear and genuine element of need the release ought to be directed td the extent the need is found to be bona fide. Term 'bona fide' means genuinely or sincerely, that is, in good faith and in contradistinction to malafide. In this context while mere desire on the part of a landlord is not enough but if there is a clear and genuine element of need the release ought to be directed td the extent the need is found to be bona fide. Status and social requirements of landlord are relevant consideration because the requirement of accommodation has necessarily to be evaluated in the context of all relevant consideration including status and social considerations (see Smt. Kamla Ahuja v. Additional District Judge, Meerut & others (1981 ARC 371). The rented accommodation in which the landlord at present resides consists of only three rooms, one of them being very small one. That accommodation is hardly sufficient to meet the obvious requirement of the family. The fact that one room in the disputed house is also available to the landlord is of no much consequence because the family cannot do shunting from one to the other accommodation situate at a distance of about 50 yards. One room at the disputed house is clearly of no special use to the family members, particularly when out of five children four are daughters. The entire family as it is composed has to live as one unit. Approach of the Prescribed Authority in this regard is ex facie misconceived and wrong and that of the appellate authority, clearly justified and correct and there is, as such, no difficulty in accepting that the need of the landlord for the house belonging to hi n is bona fide and sufficiently pressing. 7. The question, however, is whether the landlord needs the entire house, both ground floor and the first floor or whether his bona fide requirement can be met and satisfied if the ground floor accommodation alone is directed to be released in his favour. The accommodation at the ground floor consists of three rooms, besides kitchen and toilet etc. He is also in occupation of one room at the ground floor. In this way, the entire ground floor accommodation provides four rooms, kitchen and toilet etc. To my mind, this accommodation should be sufficient to meet the reasonable and bona fide need of the landlord's family. He is also in occupation of one room at the ground floor. In this way, the entire ground floor accommodation provides four rooms, kitchen and toilet etc. To my mind, this accommodation should be sufficient to meet the reasonable and bona fide need of the landlord's family. If one loom is used exclusively as drawing room and another for the landlord and his wife there still remain two rooms for the use of the young children. It is relevant that the two daughters aged over 20 years may, in coming year or so, be married off leaving only three children besides the landlord and his wife. For the present the accommodation at the ground floor may suffice. In due course if the son gets married and chooses 10 live at Lucknow the request for release of the first floor accommodation can be considered, keeping in vie the status and other social requirements as may be existing at the relevant time. 8. On proper evaluation, thus, the ground floor accommodation requires to be released in favour of the landlord. 9. The second set of tenants i.e. petitioners 7 to 10 are at present occupying the first floor accommodation. According to the finding of the learned appellate authority, the need of the first set of tenants i.e. petitioners 1 to 5 is greater than that of the second set. Petitioner no. 8 Radha Kishan has acquired middle income group house at Tikait Rai Colony. This assertion has not been categorically denied. Smt. Angoori has admittedly died. Out of the 9 second set of tenants there then remain three brothers, namely, respondent no. 7 Ram Chander, respondent no. 9 Shiv Shanker and respondent no. 10 Ganesh Prasad. There is nothing on record to show that any of these three brothers is married. Nothing is submitted on this point by the petitioners' learned counsel. It has, as such, to be taken that all the four brothers i.e. respondents 7 to 10 can easily shift and live at the house allotted and acquired by respondent no. 8 Radha Kishan. 10. Nothing is submitted on this point by the petitioners' learned counsel. It has, as such, to be taken that all the four brothers i.e. respondents 7 to 10 can easily shift and live at the house allotted and acquired by respondent no. 8 Radha Kishan. 10. Submission of the learned counsel for the petitioner is that the arrangement suggested in the order of the appellate authority for shifting to the accommodation which is at present in the occupation of the landlord is of no consequence because that accommodation on being vacated by the landlord may or may not be allotted to the petitioners and may be that the owner of that accommodation seeks release when vacated by the present landlordrespondent Harbans Rai. In this situation, it appears appropriate to direct that the petitioners 1 to 5, if they so prefer, can be given the first floor accommodation in the house in question. 11. The writ petition, as such has to be partly allowed and the order of the appellate authority requires to be modified so as to that only ground floor accommodation of the house in question be released in favour of landlordrespondent Harbans Rai. Petitioners 1 to 5 be accommodated in the first floor of the disputed house on being vacated by petitioners 7 to 10. 12. The writ petition is partly allowed and the order of the learned Prescribed Authority is modified so as to provide that petitioners 7 to 10, namely, Ram Chander, Radha Kishan, Shiv Shanker and Ganesh Prasad shall vacate the accommodation at first floor of the house in question within a period of one month from the date of this order. Petitioners 1 to 5 namely, Smt. Saroj Rani, Ramesh Kumar, Surendra, Virendra Kumar and Kake shall vacate the accommodation at the ground Boor of the house in question within one month from the date of this order. Landlordrespondent shall permit petitioners 1 to 5 to occupy the first floor accommodation. In this way, only the ground floor accommodation of the house in question, of the entire accommodation is directed to be released in favour of the landlord respondent. 13. Parties shall bear their own costs. (Partly Allowed)