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2014 DIGILAW 324 (ALL)

Madhu Garg v. Sumitra Devi

2014-01-28

SUDHIR AGARWAL

body2014
JUDGMENT Sudhir Agarwal,J. 1. Order dated 04.7.2013 having been recalled vide order of date passed on Recall Application, the writ petition is restored to its original number. As requested by learned counsels for parties, I proceed to decide this matter finally at this stage under the Rules of the Court. 2. Heard Sri Ashish Kumar Singh, learned counsel for the petitioners and Sri Sushil Kumar Shukla, learned counsel for the contesting respondent. 3. Sri Arvind Garg (now deceased and substituted by his legal heirs) was owner of house no.93(old) Chhippi Tank, Meerut City. He filed application under Section 21(1)(a) of Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as "Act, 1972") seeking release thereof on the ground that his is a joint family comprising of 21 members and therefore, accommodation, in which they are residing as House No.66, Satish Building, Chhippi Tanki was not sufficient to accommodate entire family particularly when Arvind Garg and his wife and children i.e. petitioners 1 to 3 have only one room accommodation in their possession and hence the same should be directed to be vacated by respondent-tenant Smt. Sumitra Devi Sahni (now deceased and substituted by her legal heirs) and the said accommodation be released in favour of applicant. 4. Sri Arvind Garg, husband of petitioner no.1 and father of petitioner no.2 and 3 died during pendency of application and was substituted by legal heirs. Prescribed Authority, after considering pleadings and assessing evidence, finds that personal need set up by landlord was genuine and bona fide and comparative hardship also lies in their favour, therefore, accommodation in question be vacated by respondent-tenant and be handed over to the landlord. Thereagainst tenant preferred rent appeal no.372 of 1995. 5. At appellate stage, landlords moved an application for bringing on record certain additional documents to show that tenant's husband Sri K.L.Sahni, having expired and her son Heera Lal has purchased house in New Delhi, she is residing with her son at New Delhi. The Appellate Court further rejected the said application holding that the same is not material for adjudication of appeal vide order dated 22.3.2001 and thereafter heard the appeal and decide on merits vide judgment dated 30.5.2001. The Appellate Court allowed tenant's appeal and set aside Prescribed Authority's order and consequently rejected release application of landlord. The Appellate Court further rejected the said application holding that the same is not material for adjudication of appeal vide order dated 22.3.2001 and thereafter heard the appeal and decide on merits vide judgment dated 30.5.2001. The Appellate Court allowed tenant's appeal and set aside Prescribed Authority's order and consequently rejected release application of landlord. In order to reverse findings of Prescribed Authority, with respect to genuity and bona fide of personal need, lower Appellate Court has observed that total members of joint family of landlord are 17 and in house no.66, 8 rooms, 2 stores, 2 kitchen, 4 toilets, 2 bathrooms are available to them. Besides, in the same building, three rooms are in tenancy of one Bhudevi and three rooms in tenancy of one Madan Mohan Sharma, which have also been released to the family and therefore, accommodation available with landlord's joint family is sufficient and no further accommodation is justified to be released in their favour. The Appellate Court allotted one room each to the couple or individual family members and said that only 10 rooms in all are required and thereafter one room as guest room, one drawing room, one dining room and one study room needed, which is also available. Therefore, no further accommodation is needed. He has also observed that there is another House No.66/1, which is in the name of Sarvesh Garg and late Prem Chanda Garg and in that building, an air condition factory and beauty parlour is being run but extra space therein can also be utilized by members of joint family and similarly they can also use another accommodation i.e. House No.65/3. Looking to the entirety of these facts, no accommodation is required by the petitioner-landlords. 6. The manner, in which Appellate Authority has discussed and allotted accommodation on his own, shows that he has substituted himself in place of landlord and has treated landlord's requirement from his own angle. That is not correct approach. 7. In Prativa Devi Vs. T.V.Krishnan (1996) 5 SCC 353 , the Apex Court said that the landlord is the best judge of his residential requirement. He has a complete freedom in the matter. It is no concern of the courts to dictate to the landlord how and in what manner he should live or to prescribe for him a residential standard of their own. T.V.Krishnan (1996) 5 SCC 353 , the Apex Court said that the landlord is the best judge of his residential requirement. He has a complete freedom in the matter. It is no concern of the courts to dictate to the landlord how and in what manner he should live or to prescribe for him a residential standard of their own. Therein the Court considered the age of landlord and doubted his need on the ground that in such advanced age, he would be requiring somebody to take care and therefore should live with other family members instead of alone. The Apex Court observed that High Court is rather solicitous about the age of the appellant and thinks that because of her age she needs to be looked after. That is a lookout of landlord and not of High Court. The Apex Court disapproved the approach of High Court and observed: "We fail to appreciate the High Court giving such a gratuitous advice which was uncalled for. There is no law which deprives the landlord of the beneficial enjoyment of his property." 8. In Shiv Sarup Gupta Vs. Dr. Mahesh Chand Gupta, AIR 1999 SC 2507 the Apex Court said: "Once the court is satisfied of the bonafides of the need of the landlord for premises or additional premises by applying objective standards then in the matter of choosing out of more than one accommodation available to the landlord his subjective choice shall be respected by the court. The court would permit the landlord to satisfy the proven need by choosing the accommodation which the landlord feels would be most suited .for the purpose." 9. Similarly, in R. C. Tamrakar Vs. Nidi Lekha, AIR 2001 SC 3806 , the Court in paras 10 and 11 said: "10. Law is well settled that it is for the landlord to decide how and in what manner he should live and that he is the best judge of his residential requirement. In deciding the question of the bonafide requirement, it is unnecessary to make an endeavor as to how else landlord could have adjusted himself. 11. Though the son of the landlady is a doctor and has constructed his own house, the landlady wants to stay in the suit premises. It is not the case of the tenant that landlady has any other suitable accommodation. 11. Though the son of the landlady is a doctor and has constructed his own house, the landlady wants to stay in the suit premises. It is not the case of the tenant that landlady has any other suitable accommodation. Therefore, the High Court rightly set aside the finding of the First Appellate Court holding that landlady could not be compelled to reside with her son as her case was that she wanted to stay by herself in the suit premises because of her health condition and the climatic condition of that place suit her." 10. This court following the above dictum laid down by the Apex Court, in Writ Petition No.33466 of 1998 (Sri Chhannu Lal (since deceased) & others Vs. Vth A.D.J., Varanasi and others) decided on 26.7.2012 and in para 5 the Court said: "5. As a matter of proposition, it cannot be disputed that it is the privilege of landlord to determine his way of living and accommodate himself and his family according to his status, requirement etc. He cannot be compelled to live in a particular manner either by tenant or any other agency. Even the Court of law must not dictate such terms to a landlord to live an a particular manner and adjust his needs accordingly." 11. It is true that a couple or an individual member of family would require one room each but when larger is the family, larger is the number of ancillary units like drawing room, guest room etc. is required. Moreover, close relatives and friends, who regularly visit and come to reside in the house also grows high. One drawing room for a family of such a large size, which consists of several couples is wholly unjustified. It would amount to shrinking requirement of family, compelling them to accommodate themselves in a tiny space, despite having availability of larger space under their ownership. In view thereof judgment of appellate court is difficult to sustain. 12. I, therefore, allow the writ petition, set aside impugned order dated 30.5.2001 and restore the judgment of Prescribed Authority dated 9.11.1995 and confirm the same.