Zareena Haider and Others v. Special Judge B. C. Act/A. D. J. , Lucknow and Others
2013-09-04
SIBGHAT ULLAH KHAN
body2013
DigiLaw.ai
Sibghat Ullah Khan, J.:— Heard Sri A.N. Tripathi, learned counsel for landlord-petitioners and Sri H.N.B. Sinha, learned counsel for tenant-respondents. This writ petition arises out of eviction/release proceedings initiated by the seven landlords petitioners against tenants respondents No.3 to 6 on the ground of bona need under Section 21 of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as ''U.P. Act No.13 of 1972') in the form of P.A. Case No.51 of 1987. The Prescribed Authority, Civil Judge, Mohanlal Ganj, Lucknow allowed the release application through order dated 22.01.1990. Against the said judgment and order, tenants respondents filed appeal, number of which has not been mentioned in the certified copy as well as typed copy (Appeal must have been filed in 1990). The title is Prithvi Raj Bhargava and others Vs. Smt. Zareena and others. The appeal was allowed by A.D.J./Special Judge/E.C. Act, Lucknow on 23.05.1990. Order passed by the Prescribed Authority was set aside and release application was dismissed. The said order of the appellate court has been challenged through this writ petition. Accommodation in dispute is residential in nature situate at 90, Jagat Narain Road, Lucknow having an area of 14842.36 square feet (more than 1600 square yards). Constructed area is more than 700 square yards. It is having 14 rooms as per para-1 of the written arguments filed on behalf of petitioners. However, in the written arguments filed on behalf of opposite parties No.3 to 6, it is mentioned in para-14 that accommodation in dispute consists of ten rooms. Copy of release application is Annexure-1 to the writ petition. The landlords petitioners contended that they were residing at House No.121, Ghaus Ganj Wajir Ganj, Lucknow. Need for each of the seven landlords applicants was separately pleaded. Release application was got amended and it was stated that applicant No.4, Iqbal Haider and applicant No.7, Ashfaq Haider were married during pendency of the release application. It was stated that the residential house of the applicants at Ghaus Ganj in which they were residing was double storied. On the first floor, there were four rooms, three small and one big and on the ground floor there were five small rooms of 8'/7', 6'/7', 10'/8' and 6'/10' and four store rooms of 6'/6' each. It was stated that at the time of filing of release application, the family consisted of 14 members.
On the first floor, there were four rooms, three small and one big and on the ground floor there were five small rooms of 8'/7', 6'/7', 10'/8' and 6'/10' and four store rooms of 6'/6' each. It was stated that at the time of filing of release application, the family consisted of 14 members. As far as tenants are concerned, it was stated in the release application that house in dispute was allotted to their father, Late Sri B.R. Bhargawa long before when all the petitioners were minors. The building initially belonged to late Smt. Raziya Begum mother of the applicants. It was further stated that opposite parties were co-owners of a house at Pan Dariba, which they inherited from their father and which they were using for residential as well as commercial purposes. It was also pleaded by the landlords that applicant No.5, Akhlaque Haider was an advocate and due to paucity of accommodation he was sharing his chamber with his brother in law at 34, Jagat Narain Road. Applicant No.5 filed his affidavit, copy of which is Annexure-4 to the writ petition. The lower appellate court placed maximum reliance upon the said affidavit. The rent of the accommodation in dispute is Rs.187.50 per month. It must have been fixed at the time of allotment about 50 years before. Along with the written arguments, learned counsel for petitioners has supplied a sketch map of the building in dispute and the chart of the market value (circle rates) as circulated by the Collector monthly rent of the accommodations on the road in question, i.e. Jagat Narain Road is shown to be Rs.220/- per square meter in the circle rate. On the said calculation, rent comes to about Rs.25,000/- per month. What insignificant ratio existing rent bears to this figure is not difficult to realise. Lower appellate court held that the Prescribed Authority had not decided the bona fide need of the landlords and had allowed the release application only on the ground that tenants possessed their own house, which was quite big and they were quite rich hence they would not feel any difficulty in case of eviction. I agree with the learned lower appellate court that the judgment of the Prescribed Authority was sketchy., however, the lower appellate court very rightly held as follows: "Since evidence adduced on behalf of parties in the case are available on the record.
I agree with the learned lower appellate court that the judgment of the Prescribed Authority was sketchy., however, the lower appellate court very rightly held as follows: "Since evidence adduced on behalf of parties in the case are available on the record. I do not find any impediment in recording my finding on the merit of the case in the light of principle mentioned above." The lower appellate court did not pay any attention to the areas of the rooms available to the landlords and just going by the number of the rooms held that landlords had sufficient accommodation in their possession. The lower appellate court held that the landlords had four verandas in their accommodation and they could use the said veranda for residential purposes to satisfy their need. The lower appellate court observed as follows: "It is nowhere shown by the respondents how these verandas are being used. I agree with the learned counsel for appellant that these verandas can very well be used by the respondents to fulfil their needs." This finding of the lower appellate court is utterly erroneous in law. Bona fide need does not mean dire need vide Dattatraya Laxman Kamble v. Abdul Rasul Moulali Kotkunde & Anr., AIR 1999 SC 2226 . Landlords cannot be compelled to use verandas as rooms to fulfil their need so that tenant may continue to enjoy possession of the tenanted accommodation. Verandahs are not built to be used as rooms etc. Supreme Court in Sarla Ahuja v. United India Insurance Company Limited, AIR 1999 SC 100 has held that tenant cannot dictate the landlord as to how he should satisfy his need without disturbing the tenant. Same view has been taken in the following authorities: (i) Prativa Devi v. T.V. Krishnan, 1996 (5) SCC 353 (ii) Ragavendra Kumar v. Firm Prem Machinary & Co., AIR 2000 SC 534 (iii) R.C. Tamrakar and anr. v. Nidi Lekha, AIR 2001 SC 3806 (para-10) (iiv) Dinesh Kumar Vs.
Same view has been taken in the following authorities: (i) Prativa Devi v. T.V. Krishnan, 1996 (5) SCC 353 (ii) Ragavendra Kumar v. Firm Prem Machinary & Co., AIR 2000 SC 534 (iii) R.C. Tamrakar and anr. v. Nidi Lekha, AIR 2001 SC 3806 (para-10) (iiv) Dinesh Kumar Vs. Yusuf Ali, AIR 2010 SC 2679 (para-8) In the same paragraph in which above quoted observations were made, the lower appellate court held that: "It is further stated in the affidavit of Sri Prithvi Raj Bhargawa that there were five big shops on the road side in the house at 21 Ghaus Ganj, Lucknow in which respondents residing, that except one shop the remaining four shops were let out to tenants by the respondents." If some of the landlords were compelled to reside in shops, it proved their bona fide need beyond any doubt. In the release application, it was stated that applicants No.6 & 7 were doing business and they needed the accommodation for storing business material also and one outer room on the ground floor in their house was being used by landlords applicants No.6 & 7 for the tent house business as office. It was stated that applicant No.4 was doing business of building and road construction on contract basis. He also required accommodation to store the building material. Applicant No.3 was stated to be a social worker and an employee of Shiya College, Lucknow and his wife was also lecturer in another college. Applicant No.5 was having three school going children. All the married brothers particularly after the death of their parents, require separate houses or separate, independent portions of a house to live. This rule applies with grater force if each brother has separate profession/occupation/business/source of income. This is the ethos of the society of modern times. In such situation no two brothers can be compelled to the share same drawing room/sitting room/dining room/kitchen or anything except occasional visits to each others families. Regarding comparative hardship, the lower appellate court held that the tenants were using their residential house at Pan Dariba for running printing and publishing business hence they had no alternative accommodation and as their family consisted of 16 members, hence they would be thrown on street in case of eviction. Prescribed Authority had held that tenants were quite wealthy and were paying very good income tax.
Prescribed Authority had held that tenants were quite wealthy and were paying very good income tax. All these aspects were not touched by the lower appellate court. There cannot be any doubt, looking to the number of family members and their professions, that the landlords required additional accommodation. Tenants were having a residential house but they were using the same for commercial purposes. The house in dispute is situate at a famous busy road, hence the area where it is situate is more beneficial for advocates chamber. As held by the Supreme Court in "Chandrika Prasad v. Umesh Kumar Verma" AIR 2002 SC 108 a less advantageous accommodation available to the landlord is no ground to reject the release application for a more advantageous accommodation in occupation of tenant. In the said case, accommodation was required for establishing clinic for doctor son-in-law of the landlord. The Supreme Court held that the fact that the father of the son-in-law of the landlord possessed a house in a less important area was immaterial. Supreme Court in Badrinarayan Chunilal Bhutada v. Govindram Ramgopal Mundada, AIR 2003 SC 2713 : 2003 (2) SCC 320 (para-8) has held that bona fide requirement of landlord implies an element of necessity. The necessity is a necessity without regard to the degree of which it may be. Degree of urgency or the intensity of felt need assumes significance for the purpose of comparative hardship. In my opinion, looking to the extent of accommodation available to the landlords and to the extent of accommodation available in the house in dispute in other circumstances, it might have been a case for consideration of part release as required by Rule 16-1(d) of the Rules framed under U.P. Act No.13 of 1972. Rule 16(1)(d) is quoted below: "Where the tenant's need would be adequately met by leaving with him a part of the building under tenancy and the landlord's need would be served by releasing the other part, the prescribed authority shall release only the other part of the building." The above Rule relates to comparative hardship as it starts with the words ''where the tenant's need would be adequately met'.
However as (i) the tenants have got their own ancestral house, (ii) for a very long period, tenants are paying negligible rent, which is virtually nil, hence they must have saved a lot of money and (iii) tenants are very rich, hence they cannot be said to have any such need, which may warrant leaving of part of the tenanted accommodation in their possession. In comparison to the hardship of the landlord, if release application is rejected, the hardship of the tenant in case release application is totally allowed is negligible. Tenants have got no business to use their residential accommodation for business purposes and resist release of the tenanted residential accommodation on the ground of their need/comparative hardship. They did not make least effort to search alternative accommodation probably for the reason that they already had got their residential house at Pan Dariba. In the end reference may be made to the Supreme Court authority reported in Siddalingamma and anr. v. Mamtha Shenoy, AIR 2001 SC 2896 holding as follows in para-9: "Rent Control Legislation generally leans in favour of tenant, it is only the provision for seeking eviction of the tenant on the ground of bona fide requirement of landlord for his own occupation of use of the tenanted accommodation which treats the landlord with some sympathy." Accordingly, writ petition is allowed. Judgment and order passed by the lower appellate court is set aside. Judgment of the Prescribed Authority allowing the release application is restored. Tenant-respondents are granted six months time to vacate provided that:- 1. Within one month from today tenants file an undertaking before the Prescribed Authority to the effect that on or before the expiry of aforesaid period of six months they will willingly vacate and handover possession of the property in dispute to the landlords-petitioners. 2. For this period of six months, which has been granted to the tenants-respondents to vacate, they are required to pay Rs.60,000/-( at the rate of Rs.10,000/- per month) as rent/damages for use and occupation. This amount shall also be deposited within one month before the Prescribed Authority and shall immediately be paid to the landlords-petitioners. In case of default in compliance of any of these conditions tenants-respondents shall be evicted through process of Court after one month.
This amount shall also be deposited within one month before the Prescribed Authority and shall immediately be paid to the landlords-petitioners. In case of default in compliance of any of these conditions tenants-respondents shall be evicted through process of Court after one month. It is further directed that in case undertaking is not filed or Rs.60,000/- are not deposited within one month then tenants-respondents shall be liable to pay damages at the rate of Rs.15,000/- per month since after one month till the date of actual vacation. Similarly, if after filing the aforesaid undertaking and depositing Rs.60,000/- the house in dispute is not vacated on the expiry of six months then damages for use and occupation shall be payable at the rate of Rs.15,000/- per month since after six months till actual vacation. It is needless to add that this direction is in addition to the right of the landlord to file contempt petition for violation of undertaking and initiate execution proceedings under Section 23 of the Act. _____________