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2008 DIGILAW 1728 (ALL)

NARAIN DAS v. 1st ADDITIONAL DISTRICT JUDGE

2008-08-21

S.U.KHAN

body2008
JUDGMFNT S.U. KHAN, J. Heard Sri Arvind Srivsatava, learned Counsel for the petitioner. In spite of sufficient service no one appeared on behalf of legal representatives of tenant respondent No.2. 2. This is landlord's writ petition arising out of eviction/release proceedings initiated by them against respondent No.2, Rameshwar Prasad, on the ground of bona fide need under section 21 of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 in the form of P.A. Case No. 38 of 1980. Property in dispute is residential and contains four rooms, rent of which is Rs. 10/- per month. The number of the property in dispute is house No. 22 and it is situate at Mohalla Kushtiyana, Sainyer Gate, Jhansi. Landlords stated that they had three rooms in their possession, on the first floor over the tenanted property in dispute. The landlord petitioner No.1, Narain Das had met with an accident and had lost both his legs, hence it was extremely inconvenient for him to be carried over and down the stairs. It was also pleaded that at the time of filing of release application families of both the landlords, who were real brothers consisted of 13 members. It was further stated that son of applicant No. 1 was aged about 21 years and his marriage was being delayed due to paucity of accommodation. 3. Tenant pleaded that on the ground floor apart from the tenanted accommodation, landlords had six more rooms and on the first floor also instead of 3, landlords had four rooms. Prescribed authority issued commission to an Advocate to submit his report after inspection. The commissioner showed that tenant had four rooms one varandaha/gallary and courtyard and latrine in his possession and landlord had three rooms and latrine in their possession on the first floor. Both the landlords had wives and 8 children aged in between 21 years and 2 years. Their mother was also residing with them. 4. The tenant had 9 members in his family. Tenant had pleaded that one room had been let out by the landlord to another person. Landlords stated that the said room was quite separate and could not fulfill their need. Prescribed Authority, Jhansi, through judgment and order dated 8.3.1982 allowed the •release application. Against the said judgment and order tenant respondent No.2 filed R.C. Appeal No. 19 of 1982. 5. Landlords stated that the said room was quite separate and could not fulfill their need. Prescribed Authority, Jhansi, through judgment and order dated 8.3.1982 allowed the •release application. Against the said judgment and order tenant respondent No.2 filed R.C. Appeal No. 19 of 1982. 5. During pendency of appeal tenant got the written statement amended and asserted that during pendency of appeal Khem Chand and Ram Sewak who were tenants of house No. 19 on behalf of the landlord had vacated the tenanted accommodation which contained 3 rooms and courtyard. It was further pleaded that in house No 17 belonging to the landlord two rooms had been vacated by the tenant Nathu Ram Bharati. Landlord filed an affidavit and stated that the outgoing tenant of house No. 19 i.e., Ram Sewak had illegally delivered possession to another person and landlord had filed suit against that person. It was further stated by the landlords that Nathu Ram had one room in his possession and after its vacation landlords were using the same as store room and Khem Chand had one room in his occupation which fell down after it was vacated by him. It was further stated that in one portion of house No. 19 there was lock of the old tenant and landlord had given notice to him. 6. Appellate Court also issued commission to Advocate Commissioner who submitted his report after inspection. 7. Appellate Court found that on the ground floor landlord had two rooms in his possession which had been vacated by the previous tenant during pendency of appeal. Landlords filed affidavit and offered the said two rooms on the ground floor as alternative accommodation to the tenant. However, the tenant spurned the said offer and made counter offer that in case landlord gave the three rooms on the first floor in their possession to the tenant then tenant would exchange the accommodation in his possession on the ground floor with the said accommodation on the first floor. Appellate Court also found that during pendency of appeal one room on the ground floor in house No. 19 and one room on the first floor in house No. 17 became available to the landlord. 8. Ultimately appellate Court held that the best solution of the problem would be to exchange the possession of the ground floor to the landlord and to shift the tenant on the first floor. 8. Ultimately appellate Court held that the best solution of the problem would be to exchange the possession of the ground floor to the landlord and to shift the tenant on the first floor. Ultimately, appeal was allowed by 1st A.D.J., Jhansi through judgment and order dated 26.7.1985 and it was directed that first floor accommodation over the tenanted accommodation must be handed over to the tenant and thereupon tenant must deliver possession of the ground floor tenanted accommodation to the landlord. The said judgment has been challenged by the landlord through this writ petition. 9. Landlord applicant No.1 Narain Das died during pendency of writ petition on 26.10.2007 and his heirs have been substituted. 10. It is most unfortunate that Narain Das had lost both his legs still he could not get possession of the ground floor accommodation and the tenant successfully prevented him from doing so even though he was paying only Rs. 10/per month rent which is virtually as well as actually no rent. Lower Appellate. Court also mentioned that Narain Das had come to Court and by observable his condition the Court expressed a lot of pity for him in the judgment. 11. Availability of one room or two rooms in other houses is not sufficient to satisfy the need of the landlord. Just to protect the possession of tenant, landlords cannot be compelled to bifurcate their families and keep some children in one house and other in another house. Family of the landlord- at the time of filing of the release application, 37 years before, consisted of 13 persons. They had only three rooms in their possession. Accordingly, their need for additional accommodation, irrespective of the condition of Narain Das was more than bona fide Landlord were generous enough to offer two rooms on the ground floor to the tenant but the tenant contemptuously refused the said offer. 12. There is no provision under the Act under which landlord may be compelled to offer particular alternative accommodation to the tenant. 13. Accordingly, in my opinion, judgment and order passed by the Lower Appellate Court is utterly erroneous in law. 14. As far as comparative hardship is concerned, firstly tenant did not make any effort to search alternative accommodation and secondly alternative accommodation was offered by the landlord which was refused by the tenant. 13. Accordingly, in my opinion, judgment and order passed by the Lower Appellate Court is utterly erroneous in law. 14. As far as comparative hardship is concerned, firstly tenant did not make any effort to search alternative accommodation and secondly alternative accommodation was offered by the landlord which was refused by the tenant. Accordingly balance of hardship was heavily loaded against the tenant and in favour of the landlord. 15. Accordingly, writ petition is allowed. Judgment and order passed by the Lower Appellate Court is set aside. Judgment and order passed by the prescribed authority is restored. 16. From today till actual eviction through process of Court in execution under section 23 of the Act tenants respondents shall be liable to pay damages @ Rs. 1,000/- per month. This amount will be recovered under Rule 24 of the Rules framed under the Act for the purposes of the said Rule, certified copy of this judgment shall be treated to be certificate in Form-G as mentioned under Rule 24 (2) of the Rules. However, as no one has appeared on behalf of tenants respondents hence prescribed authority before issuing parwan dakhallwrit of possession on the execution application, which may be filed by the landlord in pursuance of this judgment, shall issue notice to legal representatives of respondent No.2. Writ Petition Allowed.