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2005 DIGILAW 394 (UTT)

Satish Kumar Agarwal v. District Judge, Haridwar

2005-09-12

PRAFULLA C.PANT

body2005
Judgment By means for this petition, moved under Article 226 of the Constitution of India, the petitioners (landlords) have sought writ in the nature of certiorari quashing the judgment and order dated 24-09-1994 passed by learned District Judge, Haridwar, whereby Rent Control Appeal No. 13 of 1994 filed by the tenant has allowed setting aside the order dated 14-02-1991 passed by the Prescribed Authority in P.A. Case No. 02 of 1988, releasing the accommodation in question. 2. Brief facts of the case, as narrated in the petition, are that Petitioner NO.1, Satish Kumar Agarwal is landlord of house No. 173, Eastern Amber Talaab, Roorkee. The said house consists of four sets of flats in occupation of different tenants. The northern fiat in the first floor was allotted to the respondent NO.2, Ajab Singh, who was in occupation of said flat (during the pendency of writ petition, respondent NO.2 died and his heirs inherited the tenancy and got substituted In this case). The petitioner No. 1 moved an application under Section 21(l)(a) of the U.P. Urban Buildings (Regulation of Letting Rent and Eviction) Act, 1972, for release of said flat as he needed the same for residence of his son and his family. Initially, said accommodation was in the tenancy of one Rakesh Kumar, who on his transfer did not handover possession to the petitioners. Taking benefit of the same, Tej Singh, tenant In one of the flats in the ground floor, took the possession of the flat in question and got it allotted in favour of his brother Ajab Singh (respondent No.2). It is alleged in the release application that the entire allotment proceeding took place behind the back of the petitioners. When the petitioners came to know of it, they moved a revision before the District Judge, however, the same was rejected on the ground of being barred by time. In the application for release of the flat, it has been stated that Shri Awdhesh Kumar, son of petitioner NO.1, is an unemployed youth and that petitioner No. 1 has to settle him in the flat In question. From the petition it also appears that the petitioner No. 1 was employed elsewhere at the time when the application was moved and needs house also for his settlement after retirement. From the petition it also appears that the petitioner No. 1 was employed elsewhere at the time when the application was moved and needs house also for his settlement after retirement. It is further stated in the release application that by settling his son in the house in question, his son apart from looking after the agricultural work in his land In nearby village Sherpur, would also do business of building material etc. Claiming his need to be bonafide and greater hardship in his favour as against the tenant, said application was moved in the year 1988. The respondent NO.2 contested the said application alleging that the need of the landiord is not bonafide, rather, it has been moved malafide. It is further alleged in the objections, filed by the respondent NO.2 before the prescribed authority, that the landlord had a criminal litigation against Sri Tej Singh, brother of respondent NO.2, Ajab Singh, regarding criminal trespass, and since he lost said case, therefore, to pressurize Tej Singh, this release application was moved. It is further alleged that respondent No. 2 has got allotted the accommodation In question and living therein as he has to continue the education of his children, which is not available in his village Godhana, district Muzaffarnagar. Learned prescribed authority after taking the evidence in the form of affidavits, and hearing the parties, allowed the release application holding that the need of the landlord is bonafide and also held greater comparative hardship in his favour. Against said order of the prescribed authority, the tenant respondent No. 2 filed appeal under Section 22 of the U.P. Act No. 13 of 1972 before the District Judge, Haridwar. The said appeal, after hearing the parties, was allowed by the learned District Judge, Aggrieved by which, this writ petition has been filed by the landlord on the ground that the impugned order passed by the learned District Judge is erroneous in law. It is alleged that learned appellate court has erred in law in not considering the bonafide need of the landlord. It is further alleged that the learned appellate court also erred in law in not considering the greater comparative hardship of the landlord. 3. It is alleged that learned appellate court has erred in law in not considering the bonafide need of the landlord. It is further alleged that the learned appellate court also erred in law in not considering the greater comparative hardship of the landlord. 3. A counter affidavit has been filed on behalf of the respondent No. 2/1 and 2/2 in which it has been stated that landlord's release application was based on the incorrect facts and he alongwith his sons has settled at Kanpur. It IS further stated In the counter affidavit that the appellate court rightly found that the need of the landlord was not genuine. It is further stated that, even otherwise, since the findings of the appellate court are not perverse, as such, cannot be interfered in the writ jurisdiction. 4. I heard learned counsel for the parties and perused the record. 5. Admittedly, petitioner No. 1 is the landlord of the accommodation in question. There is no dispute as to the fact that the U.P. Act No. 13 of 1972 is applicable to the building in question and that the northern flat in the first floor of the building in question was allotted in favour of respondent No. 2, Ajab Singh (since deceased). The dispute between the parties relates to the question of bonafide need of the landlord and the comparative hardship between the parties. Learned prescribed authority found the need of the landlord genuine and bonafide and also greater comparative hardship in his favour and released the accommodation in question. However, on appeal, appellate court (respondent No.1) set aside said order of the prescribed authority holding that the petitioners' need is not genuine. The appellate court has also observed that the house was owned by petitioner No.1, Satish Kumar Agarwal and petitioner No.2, Jitendra Kumar Agarwal regarding which it was alleged by petitioners that in the partition of 1974, the accommodation in question came into the share of the petitioner No. 1. This Court Is conscious of the fact that in writ jurisdiction, the scope of this Court to interfere with the impugned order is limited to the extent of perversity in the impugned order and illegality of the order. 6. This Court Is conscious of the fact that in writ jurisdiction, the scope of this Court to interfere with the impugned order is limited to the extent of perversity in the impugned order and illegality of the order. 6. From the perusal of the impugned order passed by respondent No. 1 (appellate court) it appears that he did not find need of the landlord bonafide on the ground that Awdhesh Kumar son of petitioner NO.1 has started doing business as a Chemist in Kanpur during the pendency of the petition. In this connection, on behalf of the learned counsel for the petitioners, it is argued that the appellate court has erred in law by taking the subsequent event into consideration and appeal should have been decided on the facts as it existed at the time when the application for release of the house was moved. In view of the principle of law laid down in Gaya Prasad case reported in 2001 () Allahabad Rent Cases 352 and also in Ramkubai's case reported in AIR J999 SUPREME COURT 3089, the prescribed authority and the appellate authority should have disposed of the appeal on the facts as it existed when the release application was moved. After going through the aforesaid judgments, this Court is of the view, that ordinarily, the prescribed authority and the appellate authority were required to see facts only as it existed on the day when the application was moved, but in exceptional cases subsequent events can also be seen. In the opinion of this Court. present case is not the one which can be taken to be exceptional one in which subsequent event could be seen for the reasons that an unemployed youth would not have remained idle and waited for years till he got possession of the accommodation in question. If such subsequent events are taken into consideration then every tenant would try to delay the proceeding to defeat the purpose of the release application. In reply to this on behalf of the respondent Nos. 2/1 and 2/2,. it is argued by their learned counsel that the Chemist business cannot be said to be a temporary business and as such, it is such a subsequent event which was rightly considered by the appellate court. In reply to this on behalf of the respondent Nos. 2/1 and 2/2,. it is argued by their learned counsel that the Chemist business cannot be said to be a temporary business and as such, it is such a subsequent event which was rightly considered by the appellate court. Had the accommodation in question been a shop in Roorkee, then the learned counsel for the contesting respondent's arguments could have been believed, but the landlord's case is this that he wants to settle his son and his son's wife in the flat so that they can also look after and supervise the agricultural work in their village Laksar and Sherpur situated nearby the accommodation in question. Apart from this. from paragraphs No. 15 and 16 of the release application. it is amply clear that petitioners in their release application. have categorically stated that they would not use accommodation in question for any other purposes except for which they are stating and except for the purposes that the petitioner No. 1. who. is Assistant Engineer in the Hydel Department after getting retired from service on 31-01-1993 would be staying in said flat. From the evidence on record. it is clear. that the petitioner No. 1 has retired from the service and. merely on the ground that instead of remaining idle petitioner's son has started running a shop in Kanpur. it cannot be said that the need of the landlord has evaporated for the reason that the petitioner particularly, after his retirement still has to supervise the agricultural work in his village Laksar and Sherpur situated nearby the accommodation in question. 7. As to the comparative hardship, it Is clear from the evidence on record, that infact even after allotment Ajab Singh never lived in the house in question, but his son lived there for sometime to continue his education and later on started doing the agricultural work in his village Godhana, district Muzaffarnagar. In the rejoinder affidavit, it has been stated that respondent No.2, Ajab Singh never paid any rent to the landlord, and the landlord at the age of 72 years is still waiting for eviction of the contesting respondents. 8. In the rejoinder affidavit, it has been stated that respondent No.2, Ajab Singh never paid any rent to the landlord, and the landlord at the age of 72 years is still waiting for eviction of the contesting respondents. 8. In the aforesaid circumstances and for the reasons as discussed above, this Court is on he opinion that the finding of the learned appellate court (respondent No.1) that the landlord's need is not bonafide is perverse and against the law, based only on the subsequent fact that son of petitioner No.1 started doing business in Kanpur, during pendency of release application. This Court is in agreement with the finding recorded by the prescribed authority on bonafide as well as on greater comparative hardship in favour of the landlord. Accordingly, the writ petition is allowed. The impugned judgment and order dated 24-09-1994 passed by respondent No.1 is quashed. However, the contesting respondents (tenants) are allowed to vacate the premises within two months from today. No order as to costs.