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2016 DIGILAW 1596 (ALL)

Aizaz Nabi v. Abdul Hai

2016-04-27

SUNITA AGARWAL

body2016
JUDGMENT Mrs. Sunita Agarwal, J. – By means of the present petition, the petitioner is challenging the orders of release passed by the Courts below in a proceedings under Section 21(1)(a) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act No.13 of 1972 (hereinafter referred to as the 'Act'). The release application was filed in the year 2008 for the need set up by the landlord therein with regard to the residential accommodation under tenancy of the petitioner. 2. In paragraph 2 of the release application, it was categorically stated that the landlord possess only three rooms in Premises No. 40/159, Maida Bazar, Kanpur Nagar which are lying on three different floors of the said premises. The total number of family members of the landlord have been described in paragraph 3 of the release application consisting of his four married sons, their children, landlord himself and his wife. 3. It was also stated in paragraph 5 of the release application that the opposite parties are co-owners of House No. 40/159 Maida Bazar, Kanpur Nagar and own ? share in the said house. They are also owners of another house bearing Municipal No.45/105 Nai Sarak, Kanpur Nagar. They can conveniently shift in their residential house after settlement of this dispute. 4. In paragraph 7 of the release application, it was stated that the sons of the landlord were doing business of sale of footwear in a shop at premises No.44/308, Machhali Tola, Kanpur Nagar as well as in a shop in premises No.42/145, Bisati Bazar, Kanpur Nagar. With the growing family the landlord is in dire need of the house in question. This release application was contested by the opposite party-tenant on the ground that the need set up by the landlord was illusory as there was sufficient accommodation in possession of the landlord in the premises in question, itself. 5. As an additional plea, it was stated by the opposite party that a family settlement had been arrived between the petitioner, his brother Abdul Salaam and opposite party's father namely Sri Mohd. Qaiyyum in the year 1992 through an Arbitrator Bhagwan Swaroop. 6. According to Clause 2 of the Arbitrator agreement, it was settled that if the deceased Mohd. 5. As an additional plea, it was stated by the opposite party that a family settlement had been arrived between the petitioner, his brother Abdul Salaam and opposite party's father namely Sri Mohd. Qaiyyum in the year 1992 through an Arbitrator Bhagwan Swaroop. 6. According to Clause 2 of the Arbitrator agreement, it was settled that if the deceased Mohd. Qaiyyum i.e. father of opposite party would vacate the portion of premises No. 42/145, Basati Bazaar, Kanpur Nagar, in his occupation i.e. the premises in question, then the petitioner Abdul Hai shall waive off his ?rd share in premises No.40/159, Maida Bazar, Kanpur Nagar (the premises wherein the applicant-landlord is living). 7. It is further stated in paragraph 19 of the written statement that the said Arbitration Award was still effective and binding on the respective parties and their heirs and legal representatives. 8. The Court below framed three issues: - Issue No. 1 regarding landlord-tenant relationship was decided in favour of the applicant-tenant as there was no dispute raised by the opposite parties. On issue No.2 i.e. the bona fide need and it was found that there are 24 members in the family of the landlord and he required at least eight (8) rooms for residence of his family. Issue No.3 on comparative hardship, it was found that the opposite party owns a House No. 45/105, Nai Sarak, Kanpur Nagar. The Appellate Court affirmed the findings of the Prescribed Authority vide judgment and order dated 10.2.2016. 9. Challenging these findings, the submission of learned counsel for the petitioner is that the release application itself was not maintainable. Earlier, one release application was filed in the year 2006 by Abdul Hai against Mohd. Qaiyyum but it was dismissed on 2.11.2007. The restoration application moved by the landlord was dismissed on 11.3.2008. In the said proceeding, the petitioner/opposite party have not been impleaded. The present release application was filed during the pendency of the recall application of the dismissal order dated 2.11.2007. 10. It was not open for the applicant-landlord to file another release application without pressing the earlier recall application. 11. This submission of learned counsel for the petitioner does not find merit for two reasons. The present release application was filed during the pendency of the recall application of the dismissal order dated 2.11.2007. 10. It was not open for the applicant-landlord to file another release application without pressing the earlier recall application. 11. This submission of learned counsel for the petitioner does not find merit for two reasons. First is that the release application was decided on merits and further there is no prohibition under the Rent Control Act to file another release application even in case where the first release application is decided on merits. 12. Rule 18(1) of the Uttar Pradesh Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972 (hereinafter referred to as the 'Rules 1972') on the other hand provides that in case the release application on any grounds mentioned in Section 21(1) of the Act has been finally allowed or rejected on merits the landlord instead of filing suit for eviction makes the application under Section 21 on the same grounds within a period of six months from such decision, the Prescribed Authority shall accept the findings in those proceedings as conclusive. 13. Rule 18(2) of the Rules, 1972 further says that in case the release application against the tenant under Section 21 of the Act is rejected on merits and a fresh application on the same ground is made within a period of one year from that decision the Prescribed Authority shall accept the findings in those proceedings as conclusive. 14. A careful reading of Rule 18 of Rules 1972 makes it evident that there is no prohibition for filing fresh final release application on the same ground, even in those case where earlier application is decided on merits. 15. In the instant case, however, the release application was not decided on merits rather it was dismissed for want of prosecution. As there is no findings of the Prescribed Authority on the merits of the release application, there is no requirement to look to the order dated 2.11.2007 whereby the earlier release application was dismissed. 16. As far as the merits of the instant release application is concerned, the extent of accommodation in possession of the landlord and the number of his family members is not disputed by the learned counsel for the petitioner. 16. As far as the merits of the instant release application is concerned, the extent of accommodation in possession of the landlord and the number of his family members is not disputed by the learned counsel for the petitioner. The petitioner could not establish that the landlord possesses alternative vacant residential accommodation for satisfying need set up in the release application for his family members. The suggestion of the tenant on availability of residential accommodation in House No.44/308, Machhali Bazaar, Kanpur Nagar is also not substantiated from any cogent evidence. The need of eight rooms for the landlord and his family as found by the Prescribed Authority is perfectly justified and the finding in this regard requires no interference. 17. On comparative hardship, suffice it to say that the petitioner not dispute that he owns House No.45/105 Nai Sarak, Kanpur Nagar and he is co-owner of House No.40/159 Maida Bazar, Kanpur Nagar. In the event, the landlord is shifted to the disputed premises, the House No.40/159, Maida Bazaar, Kanpur Nagar would come in the share of the co-owners of the said house, including the petitioner. 18. For the above noted reasons, this Court does not find any justification to interfere in the findings recorded by the Courts below after appreciation of the relevant and admissible evidence on record. 19. Lastly, learned counsel for the petitioner submits that the petitioner may be given a reasonable time to shift his belongings to another place. 20. To this submission, learned counsel for the respondent has no objection. 21. However, he submits that the release application is pending since the year 2008, a short time may be provided to the applicant to shift elsewhere as the landlord is facing severe hardship. 22. The present writ petition is, therefore, dismissed with the following directions that: - "(1) the petitioner shall file an undertaking within a period of four weeks before the Court below that he shall vacate the house in question on or before 1.9.2016 and hand over peaceful possession to the landlord. (2) Till the date of vacation, the petitioner shall pay the rent regularly to the landlord." 23. In case of default of any of the above conditions, the interim protection granted herein above shall stand automatically vacated and the release order would become executable forthwith.