Mohd Ibrahim Ansari v. D J Orai — 1995 DIGILAW 840 (ALL)

Judgment (1.) R. H. Zaidi, J. Petitioner, who happens to be tenant of the shop described as Godam, Ahata and Gaddi No. 2, (hereinafter referred to as shop in dispute) situated in Mohalla Turnerganj, town Kalpi, district Jalaun, filed the present petition under Article 286 of the Constitution of India challenging the validity of the order passed by the District Judge, Jalaun at Orai, dated 12-5-1989 acting as appellate authority, under Section 22 of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction; Act, 1972, (U. P. Act No. XIII of 1972), (hereinafter referred to as the Act), allowing the appeal filed by respondent No. 2 and releasing the shop in dispute in his favour. (2.) THE brief facts, which are relevant for the present case, are that the respondent No. 2 filed an application under Section 21 (1) (a) of the Act for release of the shop in dispute including some vacant piece of land. It has been stated that the petitioner has been occupying the shop in dispute as a tenant at monthly rent of Rs. 37. He claimed that he had no son, his wife had already died and two daughters as were already married, one at Kanpur and other married with Dr. S. K. Misra, who was not in any Government service and was unemployed. Respondent No. 2 further pleaded that on account of old age he was hard of hearing, was suffering from short sight and with rheumatic pain. He, therefore, wanted to settle his son-in-law Dr. S. N. Misra in the shop in dispute, so that he may look after him as well as his property by. establishing his dispensary in the shop in dispute, where the aforesaid son-in-law could start his private practice for arugmentation of his income. To avoid any controversy on the facts para graph 10 of the release application is quoted below : @hindi = Hindi Matter Pl. Insert The petitioner on receipt of the notice from the Prescribed Authority filed his written statement controverting the allegations made in the release application. It was pleaded that married daughters of respondent No. 2 and their husbands were not the family members of the said respondent. They do not come within the definition of the term family as defined under Section 3 (g) of the Act. It was pleaded that married daughters of respondent No. 2 and their husbands were not the family members of the said respondent. They do not come within the definition of the term family as defined under Section 3 (g) of the Act. It was further pleaded that petitioner has no other place of business and has been carrying on business in the name and style of Bharat Iron Works manufacturing shutters, grills with welding machine etc. It as also stated by the petitioner that the need of respondent No. 2 is neither genuine nor bonafide. He simply wanted to eject the petitioner from the shop in dispute. Firstly, he filed suit No. 24 of 1979 for ejectment of petitioner in the Court of Munsif, which was dismissed and, therefore, the revision and writ petition filed by respondent No. 2 were also dismissed. Petitioner, in the event of ejectment from the shop in dispute, would suffer greater hardship, while in case of rejection of the release application there was no question of any hardship to respondent No. 2. Petitioner also pleaded that Dr. S. K. Misra is well settled at Pukhraya, the shop in dispute, therefore, should not be released on the ground set up by respondent No. 2. The allegations regarding alternative shops of tobacco and cloths made in the release application were also denied by the petitioner, as the said shops were owned by one Nizamuddin. (3.) IN support of their respective cases, parties have filed the evidence in form of affidavits. Respondent No. 2 also filed the affidavit of Dr. S. K. Misra wherein Dr. Misra has expressed his willingness to start a dispensary at Kalpi. (4.) THE Prescribed Authority after perusing the materials on record was pleased to hold that the son-in- law and married daughters do not come within the definition of family as defined under Section 3 (9) of the Act, therefore, the need of the son-in-law and married daughters cannot be taken into consideration. It was also held that they were also not residing normally with respondent No. 2 landlord. Further, since the landlord respondent No, 2 wanted to help Dr. Misra and to raise his financial status, therefore, the been set up in the release application cannot be treated to be the need of the landlord. THE Prescribed Authority further found that Dr. It was also held that they were also not residing normally with respondent No. 2 landlord. Further, since the landlord respondent No, 2 wanted to help Dr. Misra and to raise his financial status, therefore, the been set up in the release application cannot be treated to be the need of the landlord. THE Prescribed Authority further found that Dr. Misra has been running his dispensary at Pukhrayan and has also established a good practice in the dispensary situated in Mohalla Turnerganj in Kalpi, the said shop was just situated in front of the disputed shop. Thus need of the landlord was not found to be genuine and bona fide. Having recorded the said finding the release application tiled by the respondent No. 2 was dismissed by the Prescribed Authority on 4-11-1983. Aggrieved by the judgment and order passed by the Prescribed Authority, respondent No. 2 preferred an appeal before the appellate authority, who treated the need of Dr. Misra as need of the landlord and was pleased to allow the appeal and release application filed by respondent No. 2 The appellate authority was pleased to hold that the term family should not be interpreted narrowly so as to exclude from its ambit, the married daughters and son-in-law. While dealing with the clinic of Dr. Misra at Pukhrayan it was observed as under by the appellate authority : "that Dr. Misra had opened another clinic in Pukhrayan is of no value from the point of view of denying the release of the premises to the petitioner, if ho finds time after serving his father-in-law, he may run another clinic in Pukhrayan. " The appellate authority has also not considered the comparative hardship of the parties as required under law and as stated above, was pleased to allow the appeal and released the shop in dispute, in favour of respondent No. 2. (5.) I have heard learned counsel for the parties and have also gone through the record of the case carefully. (6.) ON behalf of the petitioner, it has been contended that the appellate authority has acted illegally in taking into consideration the need of the married daughters and son-in-law of respondent No. 2, although the said persons do not come within the definition of the family as defined under the Act. (6.) ON behalf of the petitioner, it has been contended that the appellate authority has acted illegally in taking into consideration the need of the married daughters and son-in-law of respondent No. 2, although the said persons do not come within the definition of the family as defined under the Act. It has also been contended that without recording the finding on the question of comparative hardship it was not opened to the appellate authority to reverse the judgment and order of the Prescribed Authority. Learned counsel for the petitioner further submitted that having found that Dr. Misra was already carrying his dispensary at Pukhrayan, there was no justification for releasing the shop in dispute in favour of the respondent No. 2. It was also stated that the appellate authority did not notice correct facts with respect to the alternative shop alleged to be in possession of the petitioner with which he had no concern, learned counsel for the petitioner in support of his submissions placed implicit reliance upon the decision of the Supreme Court in Harish Tandon v. Additional District Magistrate, Allahabad, 1995 ACC 1 and a Division Bench case in Ram Nath Yadav v. Rent Control and Eviction Officer, Allahabad, 1994 ACJ 593. On other hand, learned counsel for the respondents has submitted that the appellate authority was right in taking in consideration also the need of married daughters and son-in-law, as the term family as used under Section 3 (g) of the Act, had to be given the broader and wider interpretation in view of the decision of this Court. The married daughters and son-in-law are to be included within the definition of the family and their need was liable to be considered in the proceeding under Section 21 of the Act. Learned counsel for respondent No, 2 has also contended that the judgment and order passed by the appellate authority did not suffer from any illegality and infirmity. Learned counsel for the respondent No. 2 landlord also referred to and relied upon the following decisions of this Court: (i) Nand Rani v. Additional District Judge, All 148. Moradabad, AIR 1980 (ii) Atma Ram v. District Judge, Saharanpur, 1982 ARC 650. (iii) Badri Narain Raizada v. IIIrd Additional District Judge, Allahabad, 1982 ARC 293. Learned counsel for the respondent No. 2 landlord also referred to and relied upon the following decisions of this Court: (i) Nand Rani v. Additional District Judge, All 148. Moradabad, AIR 1980 (ii) Atma Ram v. District Judge, Saharanpur, 1982 ARC 650. (iii) Badri Narain Raizada v. IIIrd Additional District Judge, Allahabad, 1982 ARC 293. (iv) Prem Prakash alias Prem Chand v. IV Additional District Judge, Meerut, 1983 (2) ARC 23 (v) Jang Bahadur Saxena v. VIII Additional District Judge, Kanpur, 1986 ALJ 347. (7.) I have considered the arguments made on behalf of the parties deeply. (8.) SECTIONS 3 (g), 12 (1) (b), 21 (1) (a) and 25 of the Act, which are for the purposes of the present case are quoted below: "3 (g) "family", in relation to landlord or tenant of a building, means, his or her- (i) spouse, (ii) male lineal descendants ; (iii) such parents, grandparents and any unmarried or widowed or divorced or judicially separated daughter or daughter of a male lineal descendant, as may have been residing with him or her. and includes, in relation to a landlord, any female having a legal right of residence in that building. " "12. Deemed vacancy of building in certain cases.- (1) A landlord or tenant of a building shall be deemed to have ceased to occupy the building or a part thereof it - (a). . . . . . . . . . . . . . . . (b) he has allowed it to be occupied by any person who is not a member of his family, or" "21. Proceedings for release of building under occupation of tenant.- (1) The Prescribed Authority may, on an application of the land lord in that behalf, order the eviction of a tenant from the building under tenancy or any specified part thereof if it satisfied that any of the following grounds exists, namely - (a) that the building is bonafide required either in its existing form or after demolition and new construction by the landlord for occupation by himself or any member of his family, or any person for whose benefit it is held by him, either for residential purposes of any profession, trade or calling, or where the landlord of the trustee of a public charitable trust, for the objects of the trust. " "25. " "25. Prohibition of sub-letting.- (1) No tenant shall sub-let the whole of the building under his tenancy. (2) The tenant may with the permission in writing of landlord and of the District Magistrate, sub-let a part of the building. Explanation.- For the purposes of this section- (i) where the tenant ceases with the meaning of clause (b) of sub-section (1) or sub-section (2) of Section 12 to occupy the building or any part thereof, he shall be deemed to have sub-let that building or part ; (ii) lodging a person in a hotel or a lodging house shall not amount to sub-letting. " In Harish Tandon's case (supra), Hon'ble Supreme Court has ruled that son-in-law cannot be included in the definition of family. In paragraphs No. 8 and 9 of the said decision, it was ruled as under:- "(8) "it may be mentioned that before this Court, there was no dispute in respect of the facts stated above. It is an admitted position that the premises in question were let out to Sheobux Roy who died in the year 1941 leaving behind five sons. Later only thereof his sons Ganpat Roy, Sampat Roy and Sheopat Roy carried on their business in the said premises. It is also admitted that on 19-8-1976 Ganpat Roy inducted his son-in-law Swarup Kailash, as one of the partners in the firm M/s. B. N. Rama and Company (Textiles) for carrying on the business in textile in the disputed premises. The controversy between the parties is in respect of (i) as to whether in the facts and circumstances of the case there shall be a deemed vacancy because sub-section (2) and sub-section (4) of Section 12, (ii) whether because of explanation (1) of Section 25 it shall amount to sub letting within the meaning of Section 20 (2) (e) a ground for eviction of the respondents (iii) even if it is held that because of the induction of Swarup Kailash as partner in the firm, which amount to a sub-letting within the meaning of Section 25 of the Act, whether the whole premises shall be deemed to be vacant. "(9) It cannot be disputed that a son-in-law shall not be deemed to be a member of the family within the definition as given in the Act under Section 3 (g). "(9) It cannot be disputed that a son-in-law shall not be deemed to be a member of the family within the definition as given in the Act under Section 3 (g). Section 12 (2) says that in case of non-residential building, whether tenant admits a person who is not a member of his family as a partner, the tenant shall be deemed to have ceased to occupy the building. By induction of Swarup Kailash the son-in-law of Ganpat Roy, as partner in the firm, sub-section (2) of Section 12 is attracted. " (9.) WHILE considering the effect of inclusion of son-in-law in partner ship firm, the Supreme Court has also considered Section 12 (l) (b) and in paragraph 18 of the said judgment, it has been observed as under: "it was then urged that if such strict interpretation is given to sub-section (2) of Section 12, then similar interpretation should be given to Section 12 (l) (b) and to Section 12 (3) of the Act which prescribe other conditions under which the tenant shall be deemed to have ceased to occupy the building under his tenancy. It was pointed out that sub-section (1) (b) of Section 12 says that a building shall be deemed to have ceased to occupy the building or part thereof if he has allowed it to be occupied by any person who is not a member of his family. According to the learned counsel for respondents, if the daughter-in-law or son-in-law of the landlord or tenant comes to reside in occupation of such landlord or tenant, then it shall be deemed to have ceased to be in occupation of such landlord or tenant, then it shall be deemed to have ceased to be in occupation of such landlord or tenant, which shall lead to an abuse result, Clause (b) of sub-section (1) of Section 12 shall not be applicable to such occupation by daughter-in-law or son-in-law or even outside with the tenant himself. The words 'allowed and occupy' are significant. The landlord or tenant, as the case may be shall be deemed to have ceased to occupy the building only if he has allowed it to be occupied by any person, who is not a member of his family. The words 'allowed and occupy' are significant. The landlord or tenant, as the case may be shall be deemed to have ceased to occupy the building only if he has allowed it to be occupied by any person, who is not a member of his family. The words 'allow ed to be occupied' indicate that the possession of such building has been given to a person who is not a member of the family. It shall not be attracted when any person who is not a member of the family resides in such building either along with the landlord or the original tenant. If the landlord or the tenant allows any person, is not a member of the family with the object that such person shall occupy such premises in his own rights in that event, clause (b) of sub-section (1) of Section 12 shall be attracted. " (10.) FROM paragraph 18, it appears that clause (b) of sub-section (1) of Section 12, shall not be attracted when any person, who is not a member of the family resides in such building either along with the landlord or tenant but not in his own rights. If the landlord or the tenant allows any person, who is not a member of the family within the meaning of the Act to occupy the premises with the object that such person shall occupy such premises in his own rights in that event, clause (b) of sub-section (1) of Section 12 shall be attracted. Admittedly, respondent No. 2 is not a Doctor. The shop in dispute was sought to be released for establishing the dispensary of Dr. Misra, who being son-in-law was not a member of the family of respondent No. 2 and after its release the same was supposed to be occupied by Dr. Misra in his own right, therefore, in any view of the matter in the present case, need of Dr. Misra cannot be treated as the need of the respondent No. 2, landlord. There might be cases on the facts on which it could be said that the persons, who were not included in the definition of the family were occupying the shops residential buildings not in their own rights; but for and on behalf of the landlord. In that event, their need could possibly be looked into for the purposes of Section 21. In that event, their need could possibly be looked into for the purposes of Section 21. The decisions referred to and relied upon by the learned counsel for the respondent in support of his contention laying down the law contrary to the decision of the Supreme Court in Harish Tandon's case (supra), stand overruled to the extent indicated above Therefore, for me it is not necessary to deal with such cases in detail. (11.) IT would suffice to state that in the said cases most of the persons, whose need taken into consideration did not occupy the buildings in their own rights, but either as a care taker, as a friend, as a servant, as a well-wisher and helper of the landlord, unlike in the present case, where the building in question was required to be released for establishment of the clinic of Dr. S. K. Misra to augment his income and to provide him financial help. (12.) IN Ramnath Yadav's case (supra), the following question for consideration was referred to the Division Bench:- "whether the word family used in Section 12 (1) (b) and 12 (2) of U. P. Act No. XIII of 1972, should be interpreted with regard to its general meaning as it is understood commonly so as to include daughter- in-law o? other female relations who are normally members of the family in it should be given the restricted meaning as defined in Section 3 (g) of the Act ? The Division Bench thoroughly considered the matter and has rightly answered the question as it would appear from para 11 of the decision, which is quoted below : "our answer to the question referred, therefore, is that the word family used in Section 12 (1) (b) and 12 (2) of the U. P. Act No. 13 of 1972 should be given the meaning as defined in Section 3 (g) of the Act. " (13.) THEREFORE, the word 'family' used in Section 12 (1) (b) and 12 (2) of the Act should be taken as defined in Section 3 (g) of the Act. The Division Bench has correctly declined to expand the meanings of the family and to give it broader and wider interpretation so as to include the person other than mentioned in the said section. The Division Bench has correctly declined to expand the meanings of the family and to give it broader and wider interpretation so as to include the person other than mentioned in the said section. (14.) IN view of the aforesaid discussion, it is evident that the son-in-law is not included in the definition of the family and in the event the shop in question was permitted to be occupied by son-in-law Dr. Misra the same shall be deemed to be vacant under Section 12 of the Act road with Section 25, therefore, the appellate authority was not right in releasing the shop in dispute for occupation by Dr. S. K. Misra. Further, it has been found by the appellate authority that Dr. Misra has already established his clinic in Pukhrayan and has been carrying on his profession/business in the said shop, therefore, there was no justification for taking this aspect of the matter rightly by the appellate authority and brushing aside the arguments made on behalf of the petitioner in this respect by saying that if Dr. Misra finds time after serving his father-in-law he may also look after his business at Pukhrayan. (15.) LEARNED counsel for petitioner has also rightly contended that the appellate authority had erred in law in not recording on the question of comparative hardship. In the proceedings under Section 21 of the Act, in view of the provisions contained in IV proviso of clause (a) of sub section (1) of Section, 21, it was obligatory upon the appellate authority to record the finding on the question of comparative hardship before passing the order of release in respect of the shop in dispute. (16.) IN view of the aforesaid discussion, in the writ petition deserves to be allowed. The writ petition is allowed with costs and the impugned order dated 12-5-1980 passed by respondent No. 1 is quashed. Petition allowed.