Dilip J Bhatt v. Xth Additional District Judge Kanpur Nagar
2001-02-09
J.C.GUPTA
body2001
DigiLaw.ai
JUDGMENT J.C. Gupta, J. By means of this writ petition, the petitioners have prayed for quashing the concurrent orders dated 17th April, 1996 and 19th January, 1998 of the Prescribed Authority and Appellate Authority respectively, whereby landlord's application for the release of the tenanted accommodation in question has been al lowed. 2. THE dispute relates to a portion of residential House No. 112/354, Swaroop Nagar, Kanpur Nagar which consists of two living rooms, one drawing room, one dining room, Store room, Kitchen, Bathroom and Latrine and open terrace with shade in the second floor. Landlord-Respondent No. 3 H. N. Sabbarwal moved an application under Section 21 (1) (a) of the U. P. Act No. 13 of 1972, henceforth to be referred to as 'the Act', alleging therein that the accommodation in occupation of landlord was wholly insufficient and in adequate to cater the need of family members of the landlord and thus the landlord bonafide required additional accommodation which requirement could be met only with the release of the accommodation in occupation of tenant. Jitendra A. Bhatt who died during the pendency of release application and his legal heirs the present petitioners were substituted in his place. It was alleged that the landlord's family consisted of eleven members who were living in the second floor of the aforesaid premise but having regard to the number of family members and status of the family the accommodation in occupation of the landlord was insufficient to meet out their need and, therefore, the tenanted accommodation as urgently and bona fide required to cater the need of family members. THE landlord has in his occupation only three living rooms, two store rooms, verandah, kitchen, bathroom and latrine and also a store room in the second floor which was surrendered by the tenant with the condition that the said room would be used only as a store and not for residential purpose. THE landlord has also one in shed room in the ground floor which is used by his son Dr. Dhirendra a retired veterinary doctor as a 'dog Clinic'. It was further alleged that the tenant on his death left behind his wife, two sons and one daughter. THE daughter also died during the pendency of the case and sons are engaged in their business in Delhi and have shifted and settled there.
Dhirendra a retired veterinary doctor as a 'dog Clinic'. It was further alleged that the tenant on his death left behind his wife, two sons and one daughter. THE daughter also died during the pendency of the case and sons are engaged in their business in Delhi and have shifted and settled there. Therefore, in case application for release is allowed the tenant would not suffer any hardship whereas the landlord's family members on account of paucity of accommodation are living in great stress and facing acute hardship. THE tenant petitioners con tested the release application inter alia on the grounds that after surrender of one room on the second floor the landlord's need, if any, of additional accommodation stood satisfied; that Dr. Dhirendra, son of appellant was living in official flat and second son Mahendra, Additional D. G. of Police, Delhi lives in Delhi where he owns his own flat; that the landlord was in occupation of eight rooms and, therefore, they are in no need of any additional accommodation. It was further, asserted by the tenant petitioners that during the pendency of the case two rooms set under the occupation of tenant Jobanpura was got vacated and the same is in occupation of the landlord. It was also alleged that the entire ground floor portion is under the tenancy of National Saving Organization, which the landlord could have got released in his favour but instead of getting the same vacated the landlord renewed the tenancy for a further period of three years. The parties adduced evidence and an Advocate Commissioner was also ap pointed for making local inspection. 3. ON consideration of evidence and material on record the Prescribed Authority recorded a finding that the landlord's consisted of eight members which increased to 10 during the pendency of litigation. It was also found that after retirement Dr. Dhirendra son of landlord has shifted to his father's disputed house with his wife and two sons who both are married. Km. Miti daughter of other son Mahendra was studying at Kanpur and living in the disputed house with the landlord.
It was also found that after retirement Dr. Dhirendra son of landlord has shifted to his father's disputed house with his wife and two sons who both are married. Km. Miti daughter of other son Mahendra was studying at Kanpur and living in the disputed house with the landlord. The Prescribed Authority further came to the conclusion that one separate room is required for every adult member apart from one drawing room, one dining room, one poojaghar, one guest room, one store room and that some accommodation is also required for the married daughter who was frequently visiting her family members. While recording finding on the question of bona fide need in favour of the landlord the Prescribed Authority also took into consideration the status of landlord's family. The question of comparison of hardship of the parties has also been answered in favour of the landlord. The findings recorded by the Prescribed Authority have been affirmed by the Appellate Authority. 4. THIS Court has heard Shri S. M. Dayal for the petitioner and Shri P. K. Sinha for the landlord-respondent. Learned Counsel for the petitioners argued before this Court that though both the authorities below have concurrently found that the need of the landlord for additional accommodation is genuine and bona fide but the said finding is vitiated under law being perverse. Ac cording to his submission the Advocate Commissioner had found that the landlord was in occupation of eight rooms but the Prescribed Authority on misreading of the said report recorded a finding that the landlord has only six rooms avail able with him and his need was for nine rooms. This submission of the learned Counsel for the petitioner on examination of record does not find any force. From the report of the Advocate Commissioner it would appear that the learned Commissioner has given figure of eight by counting closed passage as a living room. Room No. 5 is a closed Verandah and that has also been described as a room. Room No. 4 was being used as dining room. Room Nos. 6 and 7 were store rooms. In this view of the matter the landlord had with him only three living rooms. The requirement of the landlord was that he required one room for himself another room for his retired son, Dr. Dhirendra and his wife, two rooms for.
Room No. 4 was being used as dining room. Room Nos. 6 and 7 were store rooms. In this view of the matter the landlord had with him only three living rooms. The requirement of the landlord was that he required one room for himself another room for his retired son, Dr. Dhirendra and his wife, two rooms for. his grand sons Sameer and Ashish and their wives, another room for Km. Miti, one dining room, pooja ghar, one guest room to accommodate Smt. Kusum, and other family members for their frequent visits and store rooms for keeping, households of his sons and grand sons. Having regard to the number of family members and the extent of accommodation inoccupation of the landlord it cannot be said that the need of landlord for additional accommodation is not genuine and is whimsical. While assessing the need of the landlord the Courts below have taken into consideration status of landlord and recorded finding in favour of the landlord. Such a consideration by no means can be said to be irrelevant. 5. IN the case of Smt. Kamla Ahuja v. Vlth Additional District Judge, Meerut and others, 1981 ARC 371, it was held that while judging the question of bona fide need the Court has to test element of need and its bona fide. This aspect has not to be examined with the eye of a surgeon who operates after scrutinising every minute detail. It has to be examined broadly and reasonably considering the social status and other social requirements of the landlord and in light of social conditions prevalent in the country. The question has to be considered in a broader perspective. 6. IN Smt. Ram Devi v. VIIIth Additional District Judge, Kanpur, 1999 (1) ARC 173, it was held that there can be no strait-jacket formula for distribution of accommodation simply on the basis of number of family members. The landlord who has a high status in the society and is used to a high standard of living may be allowed to have spacious accommodation as com pared to a person of lower status. There fore, the question as to the requirement of additional accommodation is not to be answered solely by counting the number of family members alone.
The landlord who has a high status in the society and is used to a high standard of living may be allowed to have spacious accommodation as com pared to a person of lower status. There fore, the question as to the requirement of additional accommodation is not to be answered solely by counting the number of family members alone. While answering-such a question the authorities, are required to take into consideration each and every relevant fact and factors such as status of the landlord, his life style, social obligations, etc. In the decision in Jiya Lal v. XIVth Additional District Judge, 1999 (1) ARC 213 , also it was held that while judging the genuineness of the need of the landlord his social status, standard of living etc. are relevant consideration and if they have been taken into account by the fact finding authority while giving answer on the question of bona fide need it cannot be said that the finding on bona fide need is based on irrelevant consideration. 7. EVERY landlord is entitled to a reasonably comfortable living depending upon his own status, social obligations etc. Many persons have large family yet they manage to live in one or two rooms with no separate kitchen, bath etc. while there are others who are used to a reasonably high standard of living and they may find it difficult to cramp themselves in a small space. In order to lead a reasonably com for table life they may require separate bed rooms, drawing room, dining room, pooja ghar, guest room, kitchen etc. The need, therefore, is to be judged from the view point of the landlord after taking into consideration his status, his style of living number of family members, their ages etc. No hard and fasi formula can be prescribed for limiting the extent of accommodation particularly on the basis of number of family members of the landlord vis-a-vis the number of rooms. Though number of family members is also a relevant factor for consideration of the requirement of the landlord but it is not the sole criteria for answering the question of bona fide need. It is not the end of the matter. Other factors like status, standard of living, age of family members, their personal inconvenience etc. are also some of the factors which have to be considered while judging the requirement of the landlord. 8.
It is not the end of the matter. Other factors like status, standard of living, age of family members, their personal inconvenience etc. are also some of the factors which have to be considered while judging the requirement of the landlord. 8. IN the present case the landlord is himself a retired Professor, his one son retired as a veterinary doctor and the other is D. G. of Police in J and K Cadre, there fore, it is apparent that the landlord's family has a high status in society and the family members are used to a high standard of living. Then requirement for a reasonable living may include separate space for drawing room, dining room, guest room, store room, poojaghar. etc. besides living rooms for married couples and children. In the case of Smt. Dharamwati v. Special Judge, Ghaziabad, 1991 (1) AWC 28 , this Court held that the question whether the need of the landlord is bona fide or not or is a mere desire, is to be answered on the facts and circumstances of each case and no hard and fast formula can be laid down in this regard and where the findings of the Court below are neither unreasonable nor irrational or influenced by any irrelevant material, this Court in exercise of powers under Article 226 of the Constitution will not disturb those findings. 9. IT is, well settled that while exercising jurisdiction under Article 226 of the. Constitution of India, this Court cannot convert itself into a Court of appeal. The jurisdiction, of this Court is limited to see that the subordinate Court. Tribunal or authority functions within the limit of their power. The power to issue a writ of certiorari cannot be invoked simply to correct errors of fact which could be done by a Superior Court in exercise of its statutory power as a Court of appeal. Judicial review also cannot be extended to the examination of correctness of the decision but it is a review of the manner in which the decision is made. Where the findings of fact arrived at by the fact finding authorities are ration al and reasonable based on relevant material and the view is not such which no reasonable, minded person would have ever taken, the finding has not to be interfered with even if the same is not to the liking of the writ Court.
Where the findings of fact arrived at by the fact finding authorities are ration al and reasonable based on relevant material and the view is not such which no reasonable, minded person would have ever taken, the finding has not to be interfered with even if the same is not to the liking of the writ Court. Powers of this Court under Article 226 cannot be exercised to upset the conclusion of fact reached concurrently by the two Courts below, particularly when the findings are rational and reasonable. Whether the requirement of landlord is bona fide and reasonable the question is to be decided objectively by the fact finding authorities and when this exercise has been made in a proper and legal manner, this Court will not interfere even if it is of the opinion that another view on the evidence was possible because appreciation of evidence is the domain of fact finding authority. 10. IN the present case the Concurrent findings of fact recorded on the question of bona fide need by both the authorities below is rational and reasonable based on evidence. It is not open for this Court to embark upon reappraisal of the evidence and substitute its own findings. As regard tenant's assertion that during the pendency of the case two-rooms set under the occupation of tenant Joban-pura has also come in occupation of the landlord is concerned, the same was denied by the landlord and on the basis of evidence on record the Courts below have recorded a clear cut finding that there is no material to hold that tenant Jobanpura has vacated the tenanted accommodation in his occupation and the landlord has come in possession of the said portion. The ground floor tin shed was constructed by the landlord's son Dr. Dhirendra to have a 'dog Clinic' there and as such the same cannot be used for residential purpose. The Courts below have also recorded specific findings that no accommodation has been concealed by the landlord and the actual accommodation as indicated by the landlord is in line with the report of Advocate. Commissioner as poojaghar, passage room and closed verandah, store rooms cannot be termed as living rooms. 11. THE Courts below have also recorded concurred findings on the question of comparative hardship of the par ties. Undisputedly tenant Jitendra A. Bhatt died during the pendency of the case, his daughter also died.
Commissioner as poojaghar, passage room and closed verandah, store rooms cannot be termed as living rooms. 11. THE Courts below have also recorded concurred findings on the question of comparative hardship of the par ties. Undisputedly tenant Jitendra A. Bhatt died during the pendency of the case, his daughter also died. THE Courts below have also recorded a specific finding that petitioner No. 3 herself has stated in her affidavit that her sons petitioner Nos. 1 and 2 have shifted to Delhi in connection with their business. In such a situation tenant would not suffer a greater hardship than the landlord in case the application for release is allowed. It may also be noted that the release application was filed in the year 1991 and there is nothing on record to indicate that throughout this long period the tenant made any sincere effort to obtain another accommodation on rent by way of allotment or otherwise. 12. IN the case of Subha Rao and another v. VIIth Additional District Judge, Deoria and others, 1993 (1) ARC362,itwas held that failure of tenant to make attempt to find out an alternative accommodation during the pendency of the release/ejectment proceedings would certainly be a factor against the tenants case for greater hardship. It was further held that the Court is entitled to take into account the fact that the tenant has neither alleged nor proved to have made effort to have an alternative accommodation and that non-availability of alternative accommodation to the tenant is not an adequate ground to reject the landlord's application for release. In every case where an order of eviction is made against a tenant he is bound to suffer some sort of inconvenience but that by itself is not a sufficient ground to reject landlord's claim of getting released the tenanted accommodation, particularly when his need has been found to be bona fide and genuine. 13. ON examination of record this Court, therefore, finds no manifest error of law in the two impugned orders whereby release application of the landlord has been allowed. 14.
13. ON examination of record this Court, therefore, finds no manifest error of law in the two impugned orders whereby release application of the landlord has been allowed. 14. DURING the pendency of writ petition, an application was moved on behalf on the landlord to take into consideration subsequent event mentioned in the accompanying affidavit wherein it is alleged that Mahendra Kumar second son of landlord is posted at Delhi as D. G. of Police and he has acquired a flat at Vasant Kunj and his daughter, who according to the landlord was studying at Kanpur, has been married in December in 1998 in Delhi and is permanently residing with her in-laws there. The need of the said daughter has ceased and this fact should be taken into account by this Court. In reply to this it has been argued by the learned Counsel for the landlord respondent that subsequent events occurring during the pendency of the writ petition cannot be looked into as under law finality is attached to orders passed in appeal and in support of his submission, learned Counsel placed reliance on the decision in Shri Chand Gupta v. XVIIIth Additional District Judge, 1991 (1) ARC 188, wherein several decisions of this Court and of the apex Court were considered. In any view of the matter the mere fact that grand daughter of landlord has now been married during the pendency of this writ petition will not be enough to throw out the claim of the landlord for additional accommodation because with the passage of time the grand "children of the landlord have also grown up and it cannot be said that the requirement of the landlord has been minimized on account of the marriage of landlord's, granddaughter. For the reasons assigned above no merit is found in this writ petition and it is accordingly dismissed, with no order as to costs. Petition dismissed.