M. L. Nigam v. VIIth Addl. District Judge, Meerut — 1996 DIGILAW 784 (ALL)

Judgment : R.H. Zaidi 1. THESE two petitions arise out of the proceedings under Section 21/(1) (a) of U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (for short the Act). 2. APPLICATION for release of the house No. 35/1 Shanti Nagar, Railway Road, Meerut was filed by Dr. M. L. Nigam who is petitioner in Misc. Writ Petition No. 33920 of 1995 against Sri Layak Ram Gaur, the respondent No. 2 in the said petition. It is not necessary to state the facts as pleaded by the landlord in the release application in detail. It would suffice to state that the building in question was required for his personal use and occupation for establishing his clinic and Baithak. It was also alleged that the petitioner was a doctor who after his retirement from Government service, was living in house No. 36 which was owned by Sri Aditya Prasad and the accommodation in the said house was not sufficient to meet the requirement of the petitioner. Further on application filed by Sri Aditya Prasad, order of ejectment against the applicant from house No. 36 was passed. It was further pleaded that the respondent No.2 was a well-to-do person, his wife was posted as Principal at Meerut and that he also got constructed a Kothi at Shastri Nagar in the name of his wife. Plea of hardship was also taken by the petitioner. The respondent No. 2 filed his written statement denying the pleas taken by the petitioner in the release application. It was alleged that the need of the petitioner-landord was neither genuine nor bona fide. It was also pleaded that house constructed in Shastri Nagar was not a residential house and that the petitioner was living comfortably at residence No. 36, referred to above and that his application was liable to be dismissed. Parties led evidence in support of their respective cases. 3. THE Prescribed Authority after going through the evidence on record, was pleased to hold that the need of the landlord for the building in question was genuine and bona fide and that the respondent No. 2 having constructed house No. H-2 Block Shastri Nagar, Meerut, had no right to oppose the release application filed by the petitioner and was pleased to allow the release application by his order dated 15.2.1994. 4. 4. AGAINST the order passed by the Prescribed Authority, the respondent No. 2 filed an appeal before the respondent No. 1, the appellate authority. The appellate authority affirmed the findings recorded by the Prescribed Authority to the effect that the respondent No. 2 constructed his house in an area measuring 500 Sq. Metre in the name of his wife in Shastri Nagar, Meerut. His defence was barred in view of Explanation (i) to sub-section (1) of Section 21. It was also held that the petitioner, who was a doctor retired from Government service and that his need was bona fide and genuine. However, the appellate authority was of the view that the need of the petitioner would be satisfied by releasing one room out of three in his favour, consequently the appeal filed by the respondent No. 2 was partly allowed. Respondent No. 2 was permitted to retain possession over two rooms out of three by the appellate authority vide its order dated 3.11.95. The petitioner as stated above, aggrieved by the judgment and order passed by the appellate authority whereby the appeal filed by the respondent No. 2 was allowed in part preferred Civil Misc. Writ Petition No. 33920 of 1995. The respondent No. 2 has also challenged the validity of the order passed by the appellate authority in Civil Misc. Writ Petition No. 3023 of 1996. Since both the aforesaid writ petitions arose out of and are directed against the common order, they were connected. I have heard the argument of the learned counsel for the parties in both the petitions and I am disposing of the same by common judgment and treating the Writ Petition 33920 of 1995 as the leading case. 5. LEARNED counsel for the petitioner mainly urged that after holding that defence of the respondent No. 2 was barred by Explanation (i) to sub-section (1) of Section 21 of the Act, it was not open to the Appellate Authority to release only a portion of the building in question and to permit respondent No. 2 to occupy the rest of the house. On the other hand, the learned counsel for the respondent No. 2 contended that Explanation (i) to sub-section (1) of Section 21 of the Act was not applicable in the case inasmuch as the building built by respondent No. 2 cannot be said to be a residential building and further residential building cannot be released for commercial purpose, i.e., for establishing a clinic. 6. I have considered the rival contentions made by the learned counsel for the parties and perused the record. Explanation (i) i of sub-section (1) of Section 21 and sub-section (1A) of the Act which are relevant for the purpose of the present case, are quoted below : "21. Proceedings for release of building under occupation of tenant.-(1) The Prescribed authority" may, on an application of the landlord in that behalf, order the eviction of a tenant from the building under tenancy or any specified part thereof if it is satisfied that any of the following grounds exist namely- (a) -....... Explanation. -In the case of a residential building :- (i) where the tenant or any member of his family (who has been normally residing with or is wholly dependent on him) has built or has otherwise acquired in a vacant state or has got vacated after acquisition a residential building in the same city, municipality, notified area or town area, no objection by the tenant against an application under this sub-section shall be entertained. "(1A). Notwithstanding anything contained in Section 2, the prescribed authority shall, on the application of a landlord in that behalf, order the eviction of a tenant from any building under tenancy, if it is satisfied that the landlord of such building was in occupation of a public building for residential purposes which he had to vacate on account of the cessation of his employment: Provided that an application under this sub-section may also be given by a landlord in occupation of such public building at any time within a period of one year before the expected date of cessation of his employment but the order of eviction on such application shall take effect only on the date of his actual cessation." 7. THE authorities below have recorded concurrent findings of fact that the need of the petitioner was genuine and bona fide. THE authorities below have recorded concurrent findings of fact that the need of the petitioner was genuine and bona fide. It was also held that the petitioner who was a doctor has retired from the Government service and respondent No. 2 has built a spacious house No. H-2-Block Shastri Nagar, Meerut in the name of his wife, it was held: "So I find the need of the landord is bona fide and genuine for having accommodation to run a clinic in house No. 35/1 Shanti Nagar Railway Road, Meerut in the light of view taken in 1979 ALJ 1303. I find that the respondent has established that he requires the accommodation for running a clinic and defence of any hardship to the tenant/appellant cannot be available in the light of Explanation (i) to Section 21 (1) (a) of U. P. Act No. 13 of 1972." 8. IN view of Explanation (i), it has also been held by the appellate authority that the respondent No. 2 had no right to raise objection to the application of release filed by the petitioner. Therefore, in my opinion, it was not open to the appellate authority to hold that only a portion of the building in question, i.e., one room would satisfy the need of the petitioner and to direct the release of only one room in his favour. From the findings recorded by the authorities below, the case of the petitioner for the release of the building in question was also fully covered by the provision of sub-section (1A) of Section 21 of the Act. The petitioner according to the findings recorded by the authority below, was in the Government service at Gauhati (Assam) and shifted to Meerut after his retirement from the service. The application for release was filed after service of the notice upon the respondent No. 2 the entire building in question, therefore, liable to be released in his favour. It is not open to the respondent No. 2 to contend that he was entitled to continue in occupation of the building in question or part thereof, in view of the concurrent findings recorded by the authorities below. 9. It is not open to the respondent No. 2 to contend that he was entitled to continue in occupation of the building in question or part thereof, in view of the concurrent findings recorded by the authorities below. 9. THE submissions made by the learned counsel for the respondent No. 2 that building in question could not be released for establishing of the Clinic and the Kothi built by the respondent No. 2 at Shastri Nagar was not a residential building as the same did not have a kitchen, are not acceptable to me. 10. IN Makalu v. IVth Addl. District Judge, 1992 (2) ARC 317, it was held that:- That lawyer's Chamber, a Doctor's consultation clinic in a part of the residential accommodation do not change the nature of the accommodation as the dominant use remains for the residential purposes and the professional activity is such which can be easily accommodated along with the use of the house for residential purposes." Similar view was taken by this court in Devendra Dutt Kaushik v. Vth Addl. District Judge, 1982 (2) ARC 59. Therefore, by establishing clinic in a portion of building by the petitioner will not change the nature of the residential building into a commercial building. 11. SIMILARLY a residential building even if it does not have a provision for kitchen or a dining room cannot loose its nature inasmuch as any room may be converted or used as kitchen or food may be cooked in a verandah or even an open space, submission made by the learned counsel for the respondent No. 2 to the contrary is not correct. 12. IN view of the aforesaid discussions, the Writ Petition No. 33920/95 deserves to be allowed while the Writ Petition No. 3023 of 1996 deserves to be dismissed. The Writ Petition No. 33920 of 1995 is allowed and the order passed by respondent No. 1 dated 3.11.1995 in so far it goes against the petitioner is quashed. Entire building No. 35/1 Shanti Nagar, Railway Road, Meerut stands released in favour of Dr. M. L. Nigam the petitioner. The writ petition No. 3023 of 1996 is dismissed. Parties to bear their own costs.