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Allahabad High Court · body

2009 DIGILAW 1724 (ALL)

SHREECHARAN KAKKAR v. NOOTAN BALA

2009-04-24

PRAKASH KRISHNA

body2009
PRAKASH KRISHNA, J. ( 1 ) THE present writ petition is on behalf of the tenant of an accommodation which consists of one Room, Kitchen and Bathroom on the first floor of a two storeyed house situate in Mohalla Ballam, Moradabad. The respondent no. 1 is the owner and landlady of the said accommodation. The landlord, Smt. Nootan Bala filed a release application giving rise to the present writ petition, under Section 21 (1) (a) of the U. P. Urban Building (Regulations of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as u. P. Act No. 13 of 1972) on the pleas inter alia that she is living in the house of her father-in-law as licensee. Her family consists of her spouse, married son Ankur Agarwal his wife and daughter. The release application was dismissed by the Prescribed Authority solely on the ground that the landlady who had purchased the accommodation in question in the year 1999 from its erstwhile owners namely Sri Chamma Kapoor and Roop Rani, failed to give a notice as contemplated under the U. P. Act No. 13 of 1972. But in appeal the said release application has been allowed by the Appellate Court. The Appellate Court has found that the tenants son has purchased a house from Moradabad Development Authority in the year 1990 and is living therein. The Explanation (i) to Section 21 (1) (a) of the said Act is fully applicable. ( 2 ) HEARD the learned counsel for the parties and perused the record. ( 3 ) SO far as the question of notice is concerned, the said matter stands concluded by a judgment of Apex Court against the tenant wherein it has been held that if a release application has been filed after a period of three years from the date of purchase, no notice is required to be given to the tenant, vide Anwar Hasan Khan Vs. Mohd. Shafi, 1981 (2) ARC 554. The said point was no longer agitated before this Court by the Learned Counsel for the petitioner. ( 4 ) AS regards bonafide neeed is concerned, I find no difficulty in holding that the need as set out by the landlady to shift herself in her own house is bonafide and genuine. Mohd. Shafi, 1981 (2) ARC 554. The said point was no longer agitated before this Court by the Learned Counsel for the petitioner. ( 4 ) AS regards bonafide neeed is concerned, I find no difficulty in holding that the need as set out by the landlady to shift herself in her own house is bonafide and genuine. It is a common case of the parties that presently, the landlady is residing in the house belonging to her father in law wherein her husband at the most be a co-sharer if the house is ancestral one. ( 5 ) IT has been found as a fact, which has not been disputed before this Court, that the landlady has no other house except the disputed one. She is presently residing as a licensee in the house of her father-in-law with whom her relations are not cordial. The said finding recorded by the Appellate Authority was not challenged by the Learned Counsel for the petitioner. In Julieta Antonieta Tarcato Versus Suleman Ismail 2007 AIR SCW 1538, the Supreme Court has held as follows:- "we hold that the High Court was not justified in doing so. It cannot be lost sight of that the premises which the appellant required for her personal bona fide need belonged to her. She was residing in those premises with other family members for many years. Unfortunately, she suffered an accident and in the absence of any other grown up male member in the family she was persuaded by her brother Lawrence to come and reside in his apartment which was one of the flats in the Ashoka Apartment and which was owned by him and his brother Tito. After residing there for several years, the appellant felt that she should not burden her brother any more and, therefore wanted to shift to her own accommodation which was then in occupation of the respondent. The Trial Court made much of the fact that the appellant had also pleaded her bona fide need of providing accommodation to other members of the family. While doing so the Trial Court completely lost sight of the fact that apart from the requirement of other members of the family, the appellant also required the premises for her own accommodation. Thus, even if the other members of the family no longer required the premises, the requirement of the appellant survived. While doing so the Trial Court completely lost sight of the fact that apart from the requirement of other members of the family, the appellant also required the premises for her own accommodation. Thus, even if the other members of the family no longer required the premises, the requirement of the appellant survived. She had every right to occupy her own premises and she cold not be told that she should share accommodation with her brother in another apartment. ( 6 ) THE High Court was in error in holding that since the appellant became a co-owner of the premises upon the death of her brother Lawrence, she had a right to reside in those premises and therefore, her need for the premises owned by her exclusively did not subsist. The appellant has brought to our notice that fact that in September 2003, the appellant and her sister gave their consent for the transfer of the flat in Ashoka Apartment in the name of Tito their brother, who was a co-owner of the flat along with her late brother Lawrence. Even if we ignore this fact, one cannot compel the owner of the premises which exclusively belongs to her to share accommodation with a co-owner of hers in another premises. The appellant being the owner of the suit premises, her need being bona fide and reasonable, it would be unfair to compel her to share the accommodation in another premise with its co-owner. We must therefore hold that the High Court was in error in coming to the conclusion that the bona fide personal need of the appellant did not subsist. " (Emphasis supplied)Now the question which falls for consideration is with regard to applicability of Explanation (i) to Section 21 (1) and question of comparative hardship to the parties by grant of release order. ( 7 ) MAIN thrust of the argument of the learned counsel for the petitioner is that, on the facts of the present case, Explanation (i) to Section 21 (1) of the act is not applicable in as much as there is no finding that the son of the petitioner, who has purchased the house, was normally residing with the tenant or is wholly dependent on him. ( 8 ) THE contention of the learned counsel for the contesting respondents is that, on the facts of the preset case, Explanation (i) is applicable as the son of the petitioner was residing with the tenant petitioner when he purchased the house. In the alternative, it was argued that the petitioners son has purchased the house and the petitioner can very easily shift to his sons house. For the sake of convenience Explanation (i) is reproduced below:- "explanation- In the case of a residential building- (i)where the tenant or any member of his family who has been normally residing with him or is wholly dependent on him has built or has otherwise acquired in a vacant state or has got vacated after acquisition a residential building in the same city, municipality, notified area or town area, no objection by the tenant against an application under this sub-section shall be entertained. " ( 9 ) THE said Explanation, on its plain reading, would show that it is applicable where the tenant or any member of his family who has been normally residing with him has built or has otherwise acquired in a vacant state or has got vacated after acquisition a residential building in the same city etc. , no objection by the tenant against an application under Section 21 (1) (a) shall be entertained. ( 10 ) IT is not in dispute that the son of the petitioner purchased a house in the same city in vacant state and has shifted there. Only dispute is as to whether the son of the tenant can be treated as normally residing with the petitioner or is wholly dependent on him. ( 11 ) IN this regard, it has come on record that the son of the petitioner at the time of purchase of the house was residing with him. The appellate court has found that in the affidavit of the petitioner it has been stated that his son purchased the house in the year 1990 and is residing separately since then. An inference has been drawn by the appellate court, in the absence of any averment to the contrary, that the son of the tenant was residing along with the tenant in the year 1990 when he purchased the house. An inference has been drawn by the appellate court, in the absence of any averment to the contrary, that the son of the tenant was residing along with the tenant in the year 1990 when he purchased the house. The tenant has not come forward with a case that in the year 1990, when his son purchased the house, he was not residing with him. A categorical finding has been recorded by the appellate court, which has not been challenged before me, that at the time of purchase of the house in the year 1990 by the son of the petitioner from Meerut Development Authority, he was residing with the petitioner. ( 12 ) IN this view of the matter, the finding recorded by the appellate court that pre-conditions of applicability of the said Explanation are fulfilled in the present case, is perfectly justified. Learned counsel for the petitioner, however, has placed reliance upon the following cases:- (1)Harish Tandon Versus Additional District Magistrate, Allahabad and others 1995 (25) ALR 184. (2)Madan Gopal Maheshwari Versus District Judge, Mathura 1999 (2) ARC 241. (3)Saraswari Chaddha Versus Ist Additional District Judge, Allahabad 2000 ALR 482. In my considered view, none of the cases relied upon by the learned counsel for the petitioner has any application to the facts of the present case. In none of these cases, interpretation of explanation (i) to Section 21 (1) of the Act was involved. ( 13 ) IN the case of Madan Gopal Maheshwari (supra), a case under Section 12 (3) of the Act, the question was with reference to Section 12 (3) which contains a legal fiction wherein there was no such finding that the house constructed by the son of the petitioner was either residing with the tenant or was wholly dependent on such tenant. In the case on hand, the position is otherwise. It has been found as a fact by the appellate court that son was residing with the petitioner tenant at the time of purchase of the house. Apart from the above, there is no deeming provision under Explanation (i) to Section 21 (1) of the Act. The ratio laid down in the case of Madan Gopal Maheshwari (supra) is, therefore, not applicable to the facts of the present case. Apart from the above, there is no deeming provision under Explanation (i) to Section 21 (1) of the Act. The ratio laid down in the case of Madan Gopal Maheshwari (supra) is, therefore, not applicable to the facts of the present case. ( 14 ) FOR the reasons given above, the decision given in the case of Saraswari Chaddha Versus Ist Additional District Judge, Allahabad is distinguishable and has no application to the facts of the present case. ( 15 ) EVEN otherwise also, the petitioner tenant can, in the absence of any contrary material, be accommodated in his sons house. It has come on record that the petitioner tenant has got only one son and there is no reason why the son will not take care of his aged father. On the question of comparative hardship, assuming for the sake of argument that Explanation (i) is not applicable, it is the landlord who will suffer greater hardship in case the release application is rejected as she is residing presently as a licensee in the accommodation of her father in law and, there can be no objection if she wants to shift to the accommodation exclusively owned by her. On the other hand, the petitioners son has got accommodation which can easily be treated as alternative accommodation so far as the petitioner is concerned. ( 16 ) IN view of the above, I find no merit in the writ petition. The writ petition is dismissed. No order as to costs. ( 17 ) TIME to vacate the disputed premises is granted upto 30-9-2009, provided the petitioner files an undertaking on affidavit before the Prescribed Authority within one month that he will vacate the premises in dispute and will hand over its peaceful vacant possession without inducting any person therein on or before 30-9-2009. The petitioner will also deposit the entire arrears of rent upto 30-9-2009 in advance , after adjusting the amount, if any, paid by him, within the aforesaid period with the Prescribed Authority. In case of default in compliance of either of the conditions, stipulated above, the time granted shall stand discharged and the contesting respondents landlords will be at liberty to apply for execution of the release order. .