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Allahabad High Court · body

2009 DIGILAW 879 (ALL)

RAKESH KUMAR v. AJAI KUMAR

2009-03-23

PRAKASH KRISHNA

body2009
PRAKASH KRISHNA, J. The present writ petition arises out of the pro ceedings under section 21 (1) (a) of U. P. Act No. 13 of 1972. The present petition is at the instance of the landlord with respect of house No. 286, Naya Bazar, Ravindra Puri, Sadan, Meerut Cantt. A portion of the said house is in occupa tion of the respondent as tenant on monthly rent of Rs. 80/ -. 2. The petitioner-landlord filed release application against the tenant on the ground that the tenant portion, which consists of two rooms, varandah, courtyard, bathroom, latrine and kitchen is bona fide required by him. It was stated that the petitioner is residing on the upper portion of the said accommo dation which consists of two small rooms, bathroom, latrine and kitchen etc. The family member of the landlord consists of father, mother, one unmarried sister, one brother, wife and two daughters. The release application was con tested by denying the need of the landlord. It was stated that the landlord along with his family members is comfortably residing in the accommodation in his possession. It was also pleaded that the landlord has a big accommoda tion in village Mamepur which is 7-8 kms. away from Meerut Cantt. Where in he is residing with his family members. The landlord is a moneyed person and he lias got agriculture land. 3. The prescribed authority, after taking into consideration the evidences of the respective parties, held that the need of the landlord is bona fide and genuine and he will suffer greater hardship in case the release application is rejected. Consequently, it ordered release of the disputed accommodation in Case No. 8 of 1998. The order of the prescribed authority is dated 10. 3. 2000. The said order was challenged in appeal by the tenant being Misc. Appeal No. 70 of 2000 Ajai Kumar v. Rakesh Kumar. The said appeal has been allowed by the impugned judgment dated 2. 8. 2001. The Appellate Court found that in the voters list relating to the village Mamepur, the name of the petitioner is recorded therein. It was very much influenced by the fact that the landlord has got considerable agriculture property at village Mamepur, therefore, an infer ence was drawn that the petitioner along with his family members is residing at village Mamepur also. It was very much influenced by the fact that the landlord has got considerable agriculture property at village Mamepur, therefore, an infer ence was drawn that the petitioner along with his family members is residing at village Mamepur also. The need of the petitioner was thus not found bona fide and genuine. 4. Learned Counsel for the petitioner submits that there is voluminous ev idence on record to show that the petitioner along with his family members is residing at Meerut on the first floor of the building in question. Further it was pointed out that the tenant-respondents wife has been allotted a house on in stallment basis by Development Authority and, therefore, the need, if any, of the respondent-tenant for the accommodation in question has come to and end. 5. Learned Counsel appearing on behalf of tenant respondent submits that the finding recorded by the Appellate Court on the question of bona fide need is essentially a finding of fact. He further submits that during the pendency of the release proceedings, father of the petitioner has expired and the unmar ried daughter has been got married. Therefore, the need of the petitioner, if any, has come to an end in view of the subsequent events. 6. Considered the respective submissions of the learned Counsel for the parties and perused the record. 7. It is not in dispute that the father of the petitioner has expired. It is also not in dispute that the sister of the petitioner has been got married. Excluding these two persons, the family of the petitioner consists of himself, his wife, two minor school going daughters and brother. Learned Counsel for the respondent submits that the wife of the petitioner is mostly residing at Delhi in connection with her emolument in Life Insurance Corporation of India. But the fact remains that she visits the petitioner at. Taking into consideration the entire facts and circumstances of the case, the family members of the peti tioner consists of himself, wife, two daughters, one brother, if the married sis ter is excluded. It is also admitted case of the parties that the mother of the petitioner is alive. There appears to be some dispute as to whether she is resid ing with the petitioner or with other family members at village Mamepur. Be that as it may, it will not make much difference. It is also admitted case of the parties that the mother of the petitioner is alive. There appears to be some dispute as to whether she is resid ing with the petitioner or with other family members at village Mamepur. Be that as it may, it will not make much difference. Total accommodation in pos session of the petitioner is two rooms and two small rooms measuring 8x8 ft. which ware being used as store rooms, besides kitchen as mentioned in paragraph-7 of the release application. Looking to the family members of the peti tioner, it cannot be said that the need of additional accommodation by the pe titioner is in any manner mala fide. The Appellate Court was greatly influ enced by the fact that in the voters list residence of the petitioner has been shown at village Mamepur. It is not the case of the tenant that the petitioner is not residing on the first floor of the house in question. It may be that for the purposes of exercising right of vote, petitioners name has been shown in the voters list of village Mamepur. Even if it is so, there appears to be no mala fide intention on the part of a person residing in a village to come and live in a city in his own house. The approach of the Appellate Court in reversing the re lease order passed by the prescribed authority mainly on the basis of voters list is not justified. Evidence of voters list is not of conclusive nature. There are other evidence by way of ration card, pension documents of the petitioners father wherein address of the house in question has been shown to indicate that the petitioner along with his family members is residing on the upper portion of the house in question. While considering the question as to whether the need of the landlord is bona fide and genuine, the Court should adopt a pragmatic approach and the ground realities of life. Admittedly, the petitioners two daughters are studying in school at. All these facts do show that the petitioner is residing at in a two rooms accommodation besides two stores. 8. At this juncture, the other relevant circumstance is that the tenant-re spondents wife has been allotted a house on the purchase basis by Development Authority in a scheme known as "sainik Vihar Phase II. All these facts do show that the petitioner is residing at in a two rooms accommodation besides two stores. 8. At this juncture, the other relevant circumstance is that the tenant-re spondents wife has been allotted a house on the purchase basis by Development Authority in a scheme known as "sainik Vihar Phase II. " The said house was allotted on 4. 10. 1991. The said fact has been mentioned in para-graph-28 of the writ petition. 9. Sri Vivek Saran, learned Counsel appearing on behalf of the respon dent very fairly accepts the allotment of the said house in the name of respon dents wife. However, he submits that although the said house has been allot ted in the name of respondents wife but it is not of any grave significance as it is a single room accommodation with no electricity or water connection and the house is incomplete. Attention was drawn towards paragraph-24 of the counter-affidavit in this regard. The said affidavit was sworn in the month of November, 2006. By now, the said accommodation must be complete in all re spects in the absence of any contrary material on the record. Taking into consid eration the entire facts and circumstances of the case, it is held that the need of the petitioner is bona fide and genuine. 10. So far as the question of comparative hardship is concerned, the re spondent who has got accommodation in the name of his wife, referred to above in Sainik Vihar Phase II, will not suffer greater hardship in case the release application is allowed. On the contrary, it is the petitioner who will suffer greater hardship in case the release application is rejected. By the passage of time and taking into consideration the fact that father of the petitioner has expired and sister of the petitioner has been got married, it is also equally true that the petitioners family is expanding, the daughters who were earlier mi nors must have come of age by now. They are grown up school going children and definitely they need some accommodation for their studies also. Taking into consideration the facts and circumstances and relevant issues related to them, I find sufficient force in the writ petition. The judgment of the Appellate Court is faulty for the reasons given above and the same is hereby set aside. 11. Time upto 30. 11. Taking into consideration the facts and circumstances and relevant issues related to them, I find sufficient force in the writ petition. The judgment of the Appellate Court is faulty for the reasons given above and the same is hereby set aside. 11. Time upto 30. 11. 2009 is granted to the tenant-respondent to vacate the disputed accommodation provided he files an undertaking on affidavit within a period of one month before the prescribed authority to the effect that he will vacate the disputed accommodation on or before 30. 11. 2009 and will had over peaceful possession without inducting any person therein. The tenant will pay the entire arrears of rent and damages after adjusting the amount, if any, al ready paid, within a period of one month and also continue to pay rent upto 30. 11. 2009. In case of default of either of the conditions, stipulated above, it shall be open to the landlord to apply for execution of the release order. 12. The writ petition succeeds and is allowed. No order as to costs. Petition Allowed. .