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2004 DIGILAW 23 (UTT)

Komal v. Additional District Judge

2004-04-07

IRSHAD HUSSAIN

body2004
JUDGMENT Hon'ble Irshad Hussain, J. : This writ petition has been filed by the tenant/petitioners under Article 226 of the Constitution of India praying for quashing the order dated 12-9-2002 (Annexure-16 to the writ petition) passed by the Prescribed Authority, Pauri Garhwal and the order dated 26.2.2004 (Annexure-18) passed by the appellate authority (Additional District Judge, E.T.C.) Pauri Garhwal. 2. Application for release of the building unde occupation of the tenant was filed in the year 1991 by respondents 3 to 6 under section 21 (I-A) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction ) Act, 1972 (for short 'Act') with the allegation that applicant no. I (respondent no,3) employed in government service will retire on 31-8-1991 on account of superannuation and will have to vacate the government accommodation' occupied by him for residential purposes; that no other house of the applicant is situate within the limits of Nagar Palika Parishad, Sri nagar where he may reside with his family members and that the tenant-respondent no. l shall not suffer any hardship in view of the fact that respondent no. 1 has his own house in Mohalla Agency of the town of Srinagar and other available accommodation for residential purposes. It was further alleged that the tenants have been letting out their houses and that they have sufficient alternative accommodation to reside with their families comfortably. 3. The tenanted premises is situate in village Upper Bazar Sri nagar and it is a three story building having one room on the ground floor, seven rooms and two Nemdari ( balcony in front of the room) on the first floor and two Dhaipurc ( half tin roofed open structure). Out of this accommodation the applicant had prayed for release of seven rooms and two Dhaipure in his favour and eviction of the tenant. 4. The application for release was resisted on the ground that the applicant has two houses in village Dang one of which was constructed after the applicant no. 1 was retired from service and two tenants are residing in it. In other house of the said village the applicant is residing with his family members and his razed is neither genuine nor bonafide. 1 was retired from service and two tenants are residing in it. In other house of the said village the applicant is residing with his family members and his razed is neither genuine nor bonafide. It was also pleaded that the house owned by the tenants is situate in Mohalla Agency of the town of Srinagar but it is in the occupation of the tenants since the year 1975 and that the application for release of the accommodation has been filed on fictitious grounds. 5. On consideration of the respective contentions of the parties and the material on record the learned Prescribed Authority allowed the release application in respect of the accommodation detailed in the sketch map paper no. 34C/3 prepared by the Advocate Commissioner and which was made part of the release order. The appeal of the tenant was dismissed by the appellate authority as stated above. 6. The learned counsel for the petitioner in the first instance submitted that the release application was, not presented in the manner as prescribed under Rule 15 of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972 (for short 'Rules') in as much as all the land-lords have not signed the application and therefore on this ground alone the application) should have been rejected by the Prescribed Authority. The release application (Annexure-2) was signed and verified by applicant no. 1 (respondent no.3) alone. In the matter of Yogesh Saran Vs. Jyoti Prasad and others; 1978 A.R.G. 408, the omission to sign the application by all the landlords was held to be of a formal character and an application made by a landlord can not be rejected on that basis. It is so because for getting a premises released under section 21 of the 'Act' it is not necessary that the landlord must set up needs of all the landlords and allege that the premises is needed by all of them. It can be for need of only one landlord. In view of it the rejection of the release application can not be legally insisted upon. 7. It can not be disputed that respondent no. 3 had retired from government service and had to vacate the government accommodation and the application for release under section 21 (1A) of the 'Act' was legally maintainable. In view of it the rejection of the release application can not be legally insisted upon. 7. It can not be disputed that respondent no. 3 had retired from government service and had to vacate the government accommodation and the application for release under section 21 (1A) of the 'Act' was legally maintainable. The distinction between the two provisions i.e. section 21 (l)(a) and section 21 (I-A) of the 'Act' in relation to the release of the tenanted premises is that while under clause (1)(a) the landlord has to establish both the ingredients, viz; (a) that his application is benefit, ~nd (b) that he would suffer greater hardship if release is refused, whereas under clause (I-A) the landlord is absolved of the onus of proving greater hardship to him. Considering this legal aspect the landlord -respondents were only obliged to prove that their need for release was bonafide. 1230 UTTARANCI- 8. The tenant raised the defence that the landlord has sufficient residential accommodation in the house situate in village Dang which has also been partly reconstructed to increase the residential capccity in it and since the applicant-landlord is residing in it comfortably his need is not genuine and bonafide. In the replication (Annexure-5-A) the allegation was repelled and assertion was made in the rejoinder affidavit also that the applicant no. 1 ( respondent no.3) got only two rooms accommodation out of the ancestral property in village Dang and the accommodation is not sufficient for the residential need of his family and also considering the fact that he being patient of high blood pressure would have health problems in residing away from the city without medical facilities and that too on the hiil side. The learned Prescribed Authority rejected the contention of the tenant and accepted the claim of the applicant-landlord that the accommodation in village Dang is not sufficient for the residential purposes. Moreover the applicant no. 1 on account of his old age and after retirement from service need an accommodation in the city so that he' may have required medical facilities and reside. with his family in the accommodation suited to his and his family's residential requirements. There was no reliable evidence to indicate that any expansion had been made in the house in village Dang after retirement of the applicant no. l/landlord. with his family in the accommodation suited to his and his family's residential requirements. There was no reliable evidence to indicate that any expansion had been made in the house in village Dang after retirement of the applicant no. l/landlord. A landlord having house in city can not be forced to reside in a village where necessary amenities arc not available and particularly when the two rooms accommodation in the village house can not meet the residential requirements of his family. 9. It is also of significance that the building which was let out is spacious one and it consists of two separate portions about 28 feet apart and as was also affirmed by the Advocate Com mis- -IAL CASES 2004 (2) sioner who after inspection of the entire disputed building submitted his report and sketch map on the basis of which part accommodation had been released. The accommodation which will remain in possession of the tenants after the release of the part will consist of six' rooms and a varandah. It is also not in dispute that the tenants have their own house although it had been stated that it is in the occupation of the lenants. The applicant/landlord produced documentary evidence in the form of extracts of assessment register of the Nagar Palika Parishad for the years 87-88, 8990 and 94-95 as Annexure no.3 to the affidavit of Sri Jagdish Chand. These extracts reveal that in the year 1987-88 Sri Girija Prasad and Sri Butola were the tenants in the house of the petitioners' whereas in the year 1989-90 the names of the tenants mentioned arc Sri Bharat Bhusan and Sri Butola which indicate that the petitioners have been letting out their house to various tenants. Not only this the record of 1994-95 reveal that the tenants in the house of the petitioners were Sri I.C. Sharma and Sri Aggarwal and this aspect of the matter support the definite claim of the applicant/landlord that after the application for release was filed the petitioner-tenants have let out their house to different tenants. On the basis of the evidence on record the Prescribed Authority and the appellate court have rightly held that the contention of the petitioner-tenants that their house had all along been in , the tenancy of same tenants since before the riling of the release application is false. On the basis of the evidence on record the Prescribed Authority and the appellate court have rightly held that the contention of the petitioner-tenants that their house had all along been in , the tenancy of same tenants since before the riling of the release application is false. Even otherwise there is also con• current positive finding that the petitioner-tenants shall have in their occupation sufficient accommodation after release of the part of the spacious building which consisted of two portions separated by a space of about 28 feet. 2004 (2) Krishnappa verst The portion which will remain in the occupation of the petitioner-tenants will consist of two storey building with six rooms and one varandah which will be more than sufficient for. family of six members. 10. On behalf of the petitioner-tenants it was submitted that the petitioner no.2 who is the son of petitioner no. I has his own independent family and the remaining accommodation will not be .sufficient to meet the need of all the members of the tenants family. A Ration Card in the name of petitioner no.2 Sri Ashok Kumar was filed. It is in respect of 2112 units and considering the small family of this petitioner the accommodation which will be available after/release will be sufficient for the petitioners. On this aspect of the matter the concurrent findings of fact are based on proper consideration of the material on record and it in turn also repel the argument of the learned counsel for the petitioners that the hardship to the petitioner-tenants in the event of release of the accommodation was not considered. 11. From '-1bove it is evipent that both the Prescribed Authority and the appellate court found the need, of the applicant/respondent no. 1 bonafide and finding that the petitioner-tenants shall have not inconvenience and hardship in the event of the release of the part of the spacious building is also there. Basically the finding with regard to the bonafide need and comparative hardship are finding of fact which can not be interfered with in exercise of its jurisdiction except on limited grounds such as non consideration of the material aspect of the case or perversity in the appreciation of the evidence of the parties. Basically the finding with regard to the bonafide need and comparative hardship are finding of fact which can not be interfered with in exercise of its jurisdiction except on limited grounds such as non consideration of the material aspect of the case or perversity in the appreciation of the evidence of the parties. As stated above 1 could not found any perversity in the appreciation of the evidence and material on record and since every aspect of the matter had been considered in proper perspective by the IS State of Karnataka 1231 Prescribed Authority and the appellate court, the writ petition has no merit and it is liable to be dismissed. 12. The writ petition is hereby dismissed. No order as to costs. <)f\f\A it)\ TTr' 1 t)~ 1