Harbans Lal v. IInd Additional District Judge — 1989 DIGILAW 725 (ALL)

ORDER B.L. Loomba, J. - The petitioners in this writ petition are three brothers owning a residential house situate in mohalla Shankata Devi in the town of Lakhimpur. They have been living in a part of the house while in remaining part respondent No. 2 Shyam Behari Lal is in occupation on a monthly rent of Rs. 15/- since 1983. It is the undisputed position that the petitioner moved an application under Section 21 of U.P. Act XIII of 72 seeking release of the disputed accommodation in the house in question on the ground that it was needed bonafide for use and occupation of the petitioners and their family members. The prescribed authority by his judgment and order dated 27.11.84 allowed the release application with the finding that the need of the landlord-petitioners for the accommodation in question was genuine and pressing and that even on evaluation of the comparable hardship the balance was tilting in favour of the landlord. It was observed that the respondent-tenant is bachelor, he being a press reporter of Pioneer Lucknow was having one room in his use for which the Pioneer Limited was paying monthly rent of Rs. 150/- and that he could easily shift to live in that room and could get an alternate accommodation. The appeal of the respondent-tenant was, however, allowed by II Additional District Judge by his judgment and order dated 26.4.85. He took into consideration the subsequent development, namely, that petitioner No. 2 has since got his own house constructed in another mohalla of the town of Lakhimpur, it was held that the accommodation which was already in the use of the families of the three brothers would now be sufficient for the families of two brothers, the third having built his own house and shifted there. So far as petitioner No. 3 Dhanraj is concerned he has no children and his family is limited to himself and his wife. In view of the appellate Court, one room, as such, is sufficient for petitioner No. 3. The family of petitioner Harbans Lal consists of husband and wife, three sons and one daughter, in all six members. The family of petitioner No. 3 Harbans Lal as per finding recorded by the appellate Court can easily live in the remaining accommodation with the petitioner-landlords, being two rooms, two stores, courtyard, latrine etc. 2. The family of petitioner Harbans Lal consists of husband and wife, three sons and one daughter, in all six members. The family of petitioner No. 3 Harbans Lal as per finding recorded by the appellate Court can easily live in the remaining accommodation with the petitioner-landlords, being two rooms, two stores, courtyard, latrine etc. 2. Respondent Shyam Behari Lal as already stated is bachelor. He is, however, admittedly living in the accommodation in question with his brothers and their families. The case set up by him has been that this accommodation was allowed in his favour in the year 1963 and since then he is living with his brothers and their families without any objection from the landlord and they are all entitled to live there. The respondent-tenant is bachelor as stated above, as would appear from the judgment of the prescribed authority dated 27.11.84, the persons who are said to be living with the respondent, as per his affidavit dated 5.4.84 include his brother, his brother's wife, three daughters and one son. This means that the respondent his brother and the family of his brother, all combined, consists of seven persons. Two other persons, namely, Munna Lal and Rama Shanker were also stated to be living with him. They are described as first parental cousins. A copy of the voters' list was also filed by the respondent which shows that Radhey Shyam, Munna Lal, Shobha and Rama Shanker lived with the respondent. According to the definition of family as given in Section 3(g) of the Act, none of these persons is included in the family of the respondent. Learned counsel for the petitioner on that basis submits that the need of the respondent alone could rightfully be considered by the learned Appellate Authority is wrong and not according to law. 3. From perusal of the judgment of the appellate Court vide paragraph 15 thereof, it would appear that the persons living with the respondents were not found to be members of his family but their need was considered in the context of the fact that they were living with the respondent-tenant since 1963 without any objection from the landlords and for that reason their possession would be deemed to be lawful under Section 4 of the Act. On this point the Prescribed Authority relying on a decision in N.S. Datta v. VII Addl. On this point the Prescribed Authority relying on a decision in N.S. Datta v. VII Addl. District Judge, Allahabad, (1984)1 All Rent Case 113 : 1984 All LJ 256, held that the persons living with the respondent-tenant were required to be ignored while considering the comparable hardship between the landlord and tenant. N.S. Datta's case (supra) related to commercial premises. It was held that the need of the partners whom the tenant may choose to induct in his business does not require consideration of hardship. However, the facts of that case are of no direct help in the instant case. 4. Learned counsel for the respondent has relied upon the decision in Har Prasad v. VIII Additional District & Sessions Judge, Kanpur, (1986)2 All Rent Cas 106. The question was whether the need of the elder brother of the landlady's husband could rightfully be considered for purposes of assessing bonafide and genuine need for release of the house. The landlady was a widow and the brother of her late husband, namely, Devi Charan, with his wife were found to be residing with the landlady from the lifetime of her husband as members of a joint Hindu family. Devi Charan, it was held, was looking after the family after the death of the landlady's husband could rightfully be considered for purposes of assessing bonafide and genuine need for release of the house. The landlady was a widow and the brother of her late husband, namely, Devi Charan, with his wife were found to be residing with the landlady from the lifetime of her husband as members of a joint Hindu family. Devi Charan, it was held, was looking after the family after the death of the landlady's husband. There was old and aged father-in-law of the landlady to be looked after. It was observed that after her husband's death she has to rely on the support of Devi Charan to enable her to manage her affairs. Under those circumstances, it was really the requirement of the landlady rather than that of Devi Charan which was relevant in order to appreciate the genuine and bonafide need of the landlady for release of the accommodation. 5. Another decision relied on is Ms. Shiv Raj Naresh Kumar v. Additional District Judge, Sitapur, (1987)2 All Rent Cas 532. The landlord has sought release of the shop for expanding his business. 5. Another decision relied on is Ms. Shiv Raj Naresh Kumar v. Additional District Judge, Sitapur, (1987)2 All Rent Cas 532. The landlord has sought release of the shop for expanding his business. It was asserted that he wanted to engage his brother also in the business. The appellate Court pointed out that mere engagement of the brother in the expanded business did not amount to the shop in question being required for the purpose of the brother who could not be said to be a member of the family of the landlord. This approach of the appellate Court was not held to be erroneous. 6. In Smt. Kamla Ahuja v. VI Additional District Judge, Meerut, 1981 All Rent Case 371, the need of the mother-in-law of the landlady was held relevant. 7. In Yashoda Nandan Pathak v. Vishnu Kumar Gupta, (1988)2 All Rent Cas 244, while considering the need of the landlord for release of the accommodation for need of the son of the real brother-in-law (sic) of the landlord which was found to be wholly dependent on him and residing with him was considered relevant. 8. The last in the series of cases relied upon by the learned counsel for the respondent is the decision in Misri Lal v. Special Judge (Additional District Judge) Gorakhpur, (1988)2 All Rent Cas 430. A married daughter who is now widow, divorced or judicially separated is not a member of the family for purposes of the Act. One of the grounds set out in support of the need for release was that the married daughter with her family had also been living with him. This plea was not accepted on facts. However, broad observation was made in regard to the expression, "for occupation by himself" in Clause (a), sub-section (1) Section 21 of the Act. The observations of general nature made were in the following words :- "It has consistently been held that the said phrase cannot be construed very narrowly to mean that the landlord should live in isolation or by himself only. In other words, the expression within its ambit includes the personal requirement of a landlord. It may include landlord's servant, some other person or persons who look after him and take care and whose company and assistance is or has become necessary though technically they may not be members of his family as defined in the Act. In other words, the expression within its ambit includes the personal requirement of a landlord. It may include landlord's servant, some other person or persons who look after him and take care and whose company and assistance is or has become necessary though technically they may not be members of his family as defined in the Act. Thus, needs for such others, whose assistance is required to the landlord, although they may not be included in the term family in this Act, is the own need of the landlord." 9. I respectfully agree with the board proposition of law laid down in Misri Lal's case (supra) and need of the respondent-tenant is to be considered in this perspective. He is a bachelor and an aged person stated to be in indifferent health being a patient of the diabetes and blood pressure. It is obvious that he needs the help of someone to live with him. His brother and the family members of the brother are found to be living with him from the beginning of the tenancy without objection from the landlords. While assessing the need of the tenant, the need of his brother and the family members could rightfully be taken into account even though his brother and the family members of the brother do not come within the definition of the term family under Act. The family of the brother of the respondent-tenant consists of his wife, three daughters and a son. This number comes to seven including the respondent-tenant. According to the respondent his two cousin brothers have also been living with him. There appears nothing on record to show as to the respective ages of the two cousin brothers. Further, no material has been placed to show how it is necessary for the respondent to keep his two cousin brothers. May be that they came to live with the respondent for purposes of education or any such object initially. However, no material having been placed before the Courts below or in this Court to show that the two cousin brothers are in any way dependent on the respondent or that it is necessary for the respondent to keep these two brothers for his advantage. However, no material having been placed before the Courts below or in this Court to show that the two cousin brothers are in any way dependent on the respondent or that it is necessary for the respondent to keep these two brothers for his advantage. The need of the landlord or the tenant cannot be extended so widely as to cover the need of such persons who are neither dependant nor their occupation is in any way essential or really useful for the landlord or tenant as he case may be. If there is no direct obligation to keep such persons with him his need would not be relevant. In the absence of any positive material having been placed in the proceedings the need of the tenant to keep his cousin brothers could appropriately be ignored for purpose of consideration of comparable hardship of the landlord and tenant. At best, thus, the need of the tenant is to be considered for him and his brother and family members of his brother i.e. for seven members. 10. The accommodation with the landlords on the ground floor is one room, one store and latrine. The room on the ground floor as per the report has no windows or ventilators. At the first floor there are two rooms, one store and two latrines. 11. As against this, the accommodation with the tenant on the ground floor consists of five rooms, verandah, courtyard and two galleries. At the first floor the accommodation in the occupation of the tenant consists of two rooms, verandah open terrace etc. 12. One of the three landlord-petitioners, namely, Prahlad having built his house, the need of the landlords is limited to the two brothers and their families. The family of petitioner No. 3, namely, Dhanraj consists of himself and his wife while the family of petitioner No. 1 Harbans Lal consists of himself, his wife, three sons and a daughter. According to the prescribed Authority, report of the Amin shows pathetic condition of the applicant-landlords in which they are passing their days. They accommodation in their possession is very limited. The room on the ground floor has no window or ventilators. The latrine on the ground floor is covered with half brick wall having no room and no door and has only a curtain of Jute. They accommodation in their possession is very limited. The room on the ground floor has no window or ventilators. The latrine on the ground floor is covered with half brick wall having no room and no door and has only a curtain of Jute. The bare need of petitioner No. 3 Dhanraj and his wife is of at least one room, kitchen, toilet etc. while petitioner No. 1 would require not less than three rooms besides kitchen, toilet etc. The accommodation already with the landlord consists of two rooms and store at the first floor and one room and one store at the ground floor. As against this, the tenant has five rooms at the ground floor and two rooms at the first floor. The need of the tenant to accommodate himself and his brother and family members can clearly be met with adequately if the ground floor accommodation at present in his possession is permitted to remain with him while the accommodation at the first floor is released in favour of the landlords. 13. The approach of the learned Appellate Court in deciding the matter cannot be appreciated and accepted. He has not considered the reasoning given by the Prescribed Authority in the right perspective. The need of the landlord's two of the three brothers, cannot be ignored when on facts it is found clearly to be genuine and bonafide. For the reasons already mentioned, it would be just and proper to direct release of the first floor accommodation in the occupation of the tenant in favour of the landlords. To that extent the writ petition has to be allowed. Adjustment of rate of rent will be done according to law. 14. The writ petition is partly allowed and the judgment and order of the Appellate Authority dated 26.4.1985 is set aside and the order of the Prescribed Authority dated 27.11.1984 is modified to provide that the entire accommodation of the house at the first floor in the occupation of the respondent-tenant shall be released in favour of the landlords-petitioners. The respondent-tenant shall vacate this accommodation within two weeks from the date of this order. Costs of this writ petition shall be easy.