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2006 DIGILAW 1937 (ALL)

DHARAMJEET KAUR BY LRS v. RAKESH KUMAR RASTOGI

2006-08-11

SANJAY MISRA

body2006
SANJAY MISRA, J. The respondent No. 1 herein is the landlord of flat No. 10 forming part of house No. 118/181 Kunj Bihari, Kaushalpuri, Gomti No. 5, Kanpur Nagar. The said flat is in the tenancy of the petitioner who has succeeded from her late husband. The respondent No. 1 is living in an ancestral house No. 74/142 Dhankutti, Kanpur with his parents and other co-sharers of the Hindu Undivided Family where a family partition took place by virtue of an award of arbitrator in the year 1984. The father of respondent No. 1 was allotted certain share in the ancestral house and the respondent No. 1 was allotted the flat in question. However, respondent No. 1 continued to live with his father and moved an application under Section 21 (1) (a) of U. P. Act No. XIII of 1972 on 12-7-1996 for release of the flat in question in his favour. The matter was contested before the prescribed authority and a report of the Advocate Commissioner dated 5-3- 1998 was also obtained. The prescribed authority rejected the release application of respondent landlord mainly on the ground that he had a share in the ancestral house and, therefore, he cannot be said to be living with his father as a licensee. Feeling aggrieved, the respondent landlord filed Rent Appeal No. 99 of 1999 under Section 22 of the Act which has been allowed by the lower appellate Court by the judgment and order dated 17-5- 2000. The tenant has challenged the said judgment and order by means of this writ petition. 2. Pleadings of the parties have been exchanged in the form of affidavits. 3. Heard Sri Arvind Srivastava and Sri S. C. Srivastava learned Counsel for the petitioner and Sri Anoop Trivedi learned Counsel appearing on behalf of respondent No. 1. 4. The points raised by the learned Counsel for the petitioners are as noted hereunder: (1) That the impugned judgment and order is liable to be set aside in view of non-compliance of the provisions of Rule 16 (1) (d) of Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972 and therefore, the matter should be remanded back to the Court below for re-considering the release of part portion in favour of the landlord. (2) During the pendency of these proceedings the landlords father has died on 17-2-2000 and therefore, the findings recorded by the lower appellate Court to the effect that respondent No. 1 is living as licensee with his father does not stand any more since the respondent landlord is now in possession of a part of the ancestral house in his own right. (3) The lower appellate Court after finding the need of the landlord to be bona fide has failed to record any finding on the comparative hardship between the parties. 5. Learned Counsel for the petitioner has placed reliance upon a decision of the Honble Supreme Court in the case of Smt. Raj Rani Mehrotra v. II Addl. District Judge & Ors. , reported in 1980 ARC page 311, and has contended that when the plea of Rule 16 (1) (d) was raised before the High Court then even if it was not raised before the Court below the same should be considered or if evidence is required the matter should be remanded back to the trial Court for leading fresh evidence. 6. Learned Counsel for the petitioner has also placed reliance on a decision of this Court in the case of Kuldeep Rai Suri & Anr. v. Dr. D. S. Khanna & Anr. , reported in 1982 (2) ARC 45, for the same preposition and contended that this Court had permitted the petitioner therein to raise the plea of part release before the High Court although the same was not raised before the Court below. He has also cited a decision of this Court in the case of M/s. Nandeo Ram and Sons & Anr. v. III Addl. District Judge, Varanasi & Ors. , reported in 1996 (2) ARC 27, and argued that it is the duty of the Court to consider the question of part release if the need of the landlord can be satisfied by releasing only a part of the building under tenancy. He has also relied upon a decision of this Court in the case of Satya Pal Jain v. Ist Addl. District Judge, Meerut & Ors. , reported in 1982 (2) ARC 284, and has contended that non-compliance of Rule 16 (1) (d) vitiates the decision even if the tenant has failed to raise that aspect before the Court below. 7. He has also relied upon a decision of this Court in the case of Satya Pal Jain v. Ist Addl. District Judge, Meerut & Ors. , reported in 1982 (2) ARC 284, and has contended that non-compliance of Rule 16 (1) (d) vitiates the decision even if the tenant has failed to raise that aspect before the Court below. 7. Learned Counsel appearing on behalf of the respondents in his reply has contended that the respondent landlord came upon the ownership of the flat in question by virtue of an award of 1984 wherein the properties were partitioned amongst the Hindu Undivided Family. In the ancestral house the father of the respondent landlord was allotted 1/3 share whereas the other co- sharers were allotted their respective share. The respondent landlord was living with his father in the ancestral house and since a partition had been affected in the Hindu Undivided Family the respondent share was the flat in dispute. Therefore, he contends that the respondent was living with his father in the ancestral house as a licensee and not of his own right. He has contended that upon the death of his father the will executed by him has been given effect to and the share of his father in the ancestral house has been bequeathed to the widow, divorced daughter and another son. The respondent landlord has not inherited any share from his father in the ancestral house. Learned Counsel has further contended that according to the commissioners report it is sufficiently proved that the respondent landlord is living with his wife and children in a portion of 1/3 share of his father in the ancestral house. Such residence according to him is not as of right even after the death of his father. Learned Counsel has further contended that according to the commissioners report it is sufficiently proved that the respondent landlord is living with his wife and children in a portion of 1/3 share of his father in the ancestral house. Such residence according to him is not as of right even after the death of his father. On the question of comparative hardship learned Counsel for the respondents has argued that the only plea raised by the tenant before the Court below was that he had applied for allotment of an alternative accommodation but no such accommodation had been allotted to him, therefore, he contends that such plea of the tenant has been dealt with by the lower appellate Court and since no other plea was taken, therefore, it was not incumbent upon the lower appellate Court to record its finding on any other aspect of comparative hardship particularly after the lower appellate Court on the basis of evidence had found that the need of the respondent landlord was bona fide. 8. In support of this contention he has placed reliance on a decision of the Honble Supreme Court in the case of Ashok Kumar & Ors. v. Sita Ram, reported in AIR 2001 SC 1792 . While referring to the judgment in the case of Raghvendras Kumar v. Prem Machinery Co. , reported in 2001 (2) JCLR 249 (SC) : AIR 2000 SC 534 , he has contended that the offer of part release made by the tenant is not acceptable to him since the landlord is the best judge of his requirement and has complete freedom in the matter. He is free to satisfy his need in the manner suitable to him and cannot be compelled to mould his needs according to wishes of his tenant. 9. Having considered the rival contention and after perusing the record of this writ petition it is found that the plea of Rule 16 (1) (d) was not raised by the petitioner before either of the Courts below. However, by means of a supplementary affidavit the petitioner has raised the aforesaid grounds in this writ petition. The petitioner by a supplementary affidavit has offered to vacate a portion of the tenanted premises so that it can be occupied by the landlord for his residence. However, by means of a supplementary affidavit the petitioner has raised the aforesaid grounds in this writ petition. The petitioner by a supplementary affidavit has offered to vacate a portion of the tenanted premises so that it can be occupied by the landlord for his residence. Such offer as given by the tenant petitioner has not been accepted by the respondent landlord mainly on the ground that the portion which is offered to be vacated by the petitioner does not consist of basic amenities of toilet, bath room, kitchen etc. As such according to the respondent the offer made by the petitioner cannot be considered in view of the insufficiency of accommodation and absence of basic facilities in such portion. The submission of the learned Counsel for the petitioner to the effect that further evidence is required on the issue of part release, cannot be accepted by this Court. The parties have placed their affidavits alongwith the sketch map of the premises in question. The maps show the extent of accommodation under tenancy. It consists of 5 rooms, two stores, kitchen, bathroom, latrine, closed verandah, open courtyard and a lawn. The stores, kitchen, bathroom and latrine are located in a straight line towards the north of the open courtyard. Access to the same from the rooms offered by the tenant to the landlord is not possible. Therefore, the offer if accepted by the landlord would deprive him of the basic facilities of kitchen, bathroom and toilet. The requirement of clause (d) of Rule 16 (1) is that the tenants needs would be met adequately by leaving with him a part of the tenanted portion and the landlords needs would be served by releasing the other part. In the present case the offer of part release by the tenant indicates that his needs would be adequately met but whether the needs of the landlord be served by the part release is to be seen. First and foremost any accommodation requires to have at least the basic facilities of toilet. Such is not available in case the tenanted portion is released in part. One or the other of the parties shall be left without the said facility. Hence if the need of the landlord is not served and the need of the tenant is not adequately met, part release of the tenanted portion cannot be ordered. Such is not available in case the tenanted portion is released in part. One or the other of the parties shall be left without the said facility. Hence if the need of the landlord is not served and the need of the tenant is not adequately met, part release of the tenanted portion cannot be ordered. This Court is, therefore, of the view that no case has been made out by the petitioner for part release of the accommodation. 10. The need of the landlord has been found to be genuine and bona fide by the appellate Court. The subsequent death of the father of the landlord has not improved his situation. He has not inherited any portion of the ancestral house and is still living there with his wife and children. His residence prima facie is not as of his own right as is seen from a perusal of the will of his father. There is nothing on record to enable this Court to disbelieve the contents of the will particularly when the respondent was allotted his share in the partition of 1984 in the form of the flat in question and no portion in the ancestral house. The family of the landlord consists of his wife, daughter and son. According to him his wife is a qualified teacher and is now doing her own business. The respondent was himself an Ex- Pilot instructor and both of them are income-tax payees. The requirement shown by the respondent was for three bed rooms, one drawing room, one dining room, one room for office work and a servants quarter. The accommodation offered to him is, therefore, insufficient. This Court, therefore, cannot compel the landlord to mould his need particularly when the petitioner has not made sincere efforts to search for an alternative accommodation. The mere fact that he had applied for allotment of another accommodation does not indicate the making of sincere efforts. No evidence is found on record to such effect. The landlord had cited strained relationship between his wife and mother as a reason for getting the flat released in his favour. This ground has been held to be sufficient and genuine to give mental peace to the landlord. 11. Having considered the submission of learned Counsel for the parties no error or illegality can be found in the impugned judgment. This ground has been held to be sufficient and genuine to give mental peace to the landlord. 11. Having considered the submission of learned Counsel for the parties no error or illegality can be found in the impugned judgment. The plea of Rule 16 (1) (d) raised by the petitioner before this Court has already been considered and it has-been found that no case for part release of a portion of the accommodation has been made out. 12. For the reasons stated above, this writ petition has no merit. It is accordingly dismissed. No order is passed as to costs. Petition dismissed. .