Bashiruddin v. XI Additional District Judge, Varanasi
1990-02-01
M.P.SINGH
body1990
DigiLaw.ai
ORDER M.P. Singh, J. - The petitioner is a tenant of a part of accommodation of house No. 70-71. Sadar Bazar, Varanasi. 2. The opposite parties Nos. 3 to 6 filed an application for release under Section 21(1)(a t of the U.P. Act XIII of 1972 (hereinafter referred to as the Act) on the ground that the petitioner was tenant of a two-room accommodation of the said house and the remaining two room were in their possession. It was said that the total number of family members of the landlords was 14. Two rooms in their possession was extremely insufficient. In case if this additional accommodation of two rooms is released in their favour, that would satisfy their need which was bona fide and pressing. 3. The petitioner contested the said application stating that the landlords did not need the additional accommodation. They had five houses in the city which were numbered as 70, 71, 72, 74 and 83. The accommodation in their possession in house No. 71 consists of three big rooms - two on the ground floor and one on the first floor. House No. 83 is adjoining to house No. 1. The fourth house whose number is 74, is in the name of Smt. Jainab and Mohd. Umar which consists of four rooms, one courtyard and two rooms on the first. The need of the landlords was not genuine and bona fide. In case of release great hardship would be caused to the petitioner. 4. The Prescribed Authority rejected the release application against which the landlords filed an appeal which was allowed be means of the impugned order. 5. Heard Sri Ambish Kumar Sharma, learned counsel for the petitioner. 6. The main contention of the learned counsel for the petitioner was that the learned Additional District Judge has committed mistake in allowing the appeal in as much as the need of the landlords was not bona fide and the finding on the question of comparative hardship was also wrongly recorded by him. It was contended by him that the family of Mond. Umar consisted of only three persons and the family of Mohd. Mustafa consisted of himself, his wife, his son, daughter-in-law and other minor children as found by the Prescribed Authority. Thus according to the petitioner himself there were seven adult members and a few minor children and they had three rooms in their possession. 7.
Umar consisted of only three persons and the family of Mohd. Mustafa consisted of himself, his wife, his son, daughter-in-law and other minor children as found by the Prescribed Authority. Thus according to the petitioner himself there were seven adult members and a few minor children and they had three rooms in their possession. 7. On the basis of the said submission of the learned counsel for the petitioner, now this Court has to examine .the findings recorded by the learned Additional District Judge and the accommodation in possession of the landlord. According to the learned counsel for the petitioner, the petitioner is in possession of only two rooms and a courtyard. The learned counsel contended that house Nos. 70-71 are two different houses. In my opinion this is. not correct. It is one house in two parts bearing two different municipal -assessment numbers. Out of the total accommodation of four rooms of the house, two rooms are in possession of the petitioner and the remaining two are in occupation of the landlord. 8. The question which now remains for consideration is whether house Nos. 72, 74 and 83 are available to the landlords for occupation or they are in possession over them. 9. Except bare assertion that the landlords were owners in possession of house No. 72 the petitioner has led no evidence in support of the same. The objection regarding this house is not a bona fide one. 10. There is no dispute that Smt. Jainab Bibi is the owner of house No. 74. She is the married sister of Mohd. Umar and Mohd. Mustafa. While considering the need of these two persons, this house can not be taken into consideration. 11. So far house No. 83 is concerned. there is no dispute that the present respondents are the owners but this house is occupied by Mohd. Qyayumuddin as a tenant. The petitioner has failed to refer to any evidence on record to show that this house was vacant or available to the landlords or was in their occupation. 12. I find that the objection of the petitioners with regard to house Nos. 72, 74 and 83 have been raised only for the sake of objection without any foundation. 13. House Nos. 70 and 71 constitute one unit and in the eastern portion the petitioner (tenant) is in occupation of two rooms and a courtyard.
12. I find that the objection of the petitioners with regard to house Nos. 72, 74 and 83 have been raised only for the sake of objection without any foundation. 13. House Nos. 70 and 71 constitute one unit and in the eastern portion the petitioner (tenant) is in occupation of two rooms and a courtyard. The western portion consists of two rooms, courtyard, bath room and a kitchen which was in the possession of the landlords. There are 14 members in the family of the landlords. In case if these two rooms which are in possession of the petitioner are also released, then the need of the landlord would be adequately satisfied. This established. that the need to the landlords was bonafide. 14. On the question of comparative hardship I find that the findings recorded by the authorities below does not suffer from any error apparent on the face of record. In every case of release some inconvenience is bound to be caused to the tenant. 15. The learned counsel for the petitioner has contended that the authorities below have wrongly approached to the question of bona fide need. I do not find any merit in this submission. In the case of N.S. Datta v. VII District Judge, Allahabad, reported in (1984) 1 All Rent Cas 113 it has been held (at p. 258 of All LJ). "The expression "bona fide required" appearing in the context of Section 21(1)(a) has received judicial interpretation in various pronouncements. The assessment has to be objective depending upon the facts and circumstances of the case. The word required" it was pointed in Matsu Lal v. Radhey Lal, AIR 1974 SC 1596 , signifies that mere desire on the part of the landlord is not enough, but there should be an element of need and the landlord must show that he genuinely required non-residential accommodation for purposes of starting or continuing his own business. (Sec also Ajit Prasad v. IVth Addl. District Judge, Meerut, 1979 All Rent Cas 73. The need of the landlord does not, however, have to be shown as absolute. In Smt. Gindori Devi v. II Addl. District Judge & others, 1979 (UP) RCC 599, at p. 601 it was held :- "It would suffice to mention that a person is said to need a premises bona fide if he requires it honestly.
The need of the landlord does not, however, have to be shown as absolute. In Smt. Gindori Devi v. II Addl. District Judge & others, 1979 (UP) RCC 599, at p. 601 it was held :- "It would suffice to mention that a person is said to need a premises bona fide if he requires it honestly. Similarly, the word "required" has also been interpreted in several cases, and the connotation of the said word shows that the landlord must need the premises. In order to succeed in such an application, it is not necessary that the landlord must be on the streets. The connotation of the word "need" or "requirement" should not he unnecessarily or artificially extended so as to give it a meaning that a landlord cannot get a premises released unless his requirement is absolute. No doubt, the question of need of a landlord is to be decided objectively and its decision should not be based on the ipso dixit of a landlord, but that does not mean that he must stand on extreme need before he could succeed." 16. In another case reported in 1979 (UP) RCC 132 Jayant Kumar v. Prescribed Authority it was held "It is however not necessary that the landlord must stand in absolute need of the property. The requirement of law is that the need of a landlord must be honest and in good faith. It is not correct that a landlord cannot succeed unless he is found in an extreme need." 17. The principle thus enunciated in the case of N.S. Datta and other is based on curlier decision of the Supreme Court reported in 1979 (1) SCC 273 : AIR 1979 SC 272 Bega Begum v. Abdul Ahad Khan. 18. I find that the principles enunciated in the afore-mentioned cases have been strictly followed in the present case while passing an order of release in favour of the landlords the impugned orders do not suffer from any error apparent on the face of the record. 19. The writ petition is accordingly dismissed in limine without any order as to costs. 20. However, the petitioner is granted three months time to vacate the premises. He is directed to had over peaceful vacant possession to the landlord on or before 31-5-1990 subject to the condition that he deposits the entire amount of rent due up to 31-5-1990 by 28-2-1990.
20. However, the petitioner is granted three months time to vacate the premises. He is directed to had over peaceful vacant possession to the landlord on or before 31-5-1990 subject to the condition that he deposits the entire amount of rent due up to 31-5-1990 by 28-2-1990. in case of default this part of the order shall stand automatically deleted.