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2016 DIGILAW 1715 (ALL)

Nand Kishore v. Bharat Bhaskar Srivastava

2016-05-04

SUNITA AGARWAL

body2016
JUDGMENT Mrs. Sunita Agarwal, J. – Heard learned counsel for the parties and perused the record. 2. The concurrent findings of fact recorded by both the courts below in a proceeding under Section 21(1)(a) of U.P. Act No. 13 of 1972 are under challenge in the present writ petition. 3. The landlord namely Sri Bharat Bhaskar Srivastava filed a release application in the year 2011 stating therein that he had purchased the House No. 104/348, Prem Nagar, Sisamau, Kanpur Nagar through a registered sale deed dated 25.7.2007 executed by Sri Gopal Das. There are three members in his family including himself. He is engaged in a scrap business and her wife is doing tailoring work. His son was studying B.Tech. 4. Looking to his family status, he needs three rooms, one kitchen, latrine & bathroom which is in possession of the tenant. The extent of tenement namely three rooms, one kitchen, latrine & bathroom and a courtyard are existing at the first floor, in occupation of the petitioner/tenant is not disputed. It was also stated in the release application that the applicant/landlord had purchased this property for his need of residence. The release application was contested by filing a written statement dated 20.9.2011. 5. In paragraph 19' of the written statement, it was stated that no notice was given by the landlord prior to filing of the release and as such it was not maintainable. 6. This apart, it was further pleaded that the applicant/landlord possess sufficient accommodation in this house and adjacent house namely House No. 104/347 which was vacated by another tenant is also available. In three houses, total seven rooms are available to the landlord. 7. The plea of maintainability of the release application was considered by the Prescribed Authority and it has arrived at a finding that after purchase of the disputed house, prior to filing of the release application, six months prior notice was given by the landlord. The notice was brought on record and a categorical finding to this effect has been recorded by the Prescribed Authority. 8. This finding could not be assailed by the petitioner. 9. In view thereof, there is no merit in the submission of the petitioner regarding maintainability of the release application. 10. The notice was brought on record and a categorical finding to this effect has been recorded by the Prescribed Authority. 8. This finding could not be assailed by the petitioner. 9. In view thereof, there is no merit in the submission of the petitioner regarding maintainability of the release application. 10. On the bona fide need, it was found by the Court below that the applicant/landlord possessed only two rooms in the house in question and other accommodation suggested by the tenant are not available to him. The landlord was residing in House No. 108/93, Durga Devi Road, P-Road, Kanpur Nagar which is owned by his brother-in-law. The house in question was purchased by him for residence. For three adult family members of the landlord, at least two bedrooms are required. Looking to the status of the landlord one drawing room, kitchen and guest room are also needed. 11. Considering the requirement of the landlord, it was opined that three rooms in the possession of the tenant at the first floor are liable to be released. 12. This finding has been challenged by the learned counsel for the petitioner on the ground that one tenant namely Sri Pradeep Nigam was inducted by the applicant/landlord after purchase of the present building on 25.7.2007 and, therefore, the need is not genuine. 13. While elaborating his submissions, it is contended by the learned counsel for the petitioner before the Appellate Court that a tenement comprises of two rooms, courtyard, latrine & bathroom and kitchen which was in tenancy of Pradeep Kumar Nigam was got vacated by the landlord but it was given on rent to Sri Dilip Nigam and Sri Kuldeep Kumar Nigam. 14. In order to substantiate his arguments, it is demonstrated that in a sale deed executed by Smt. Anjana Nigam wife of Sri Pradeep Kumar Nigam along with Smt. Manju Nigam wife of Sri Kuldeep Nigam and Smt. Amita Nigam wife of Sri Dilip Nigam, address of present house has been mentioned as residence of Smt. Anjana Nigam wife of Sri Pradeep Nigam. 15. From a perusal of the sale deed at page 144' of the paper book, it appears that Sri Pradeep Kumar Nigam, Sri Kuldeep Kumar Nigam and Sri Dilip Nigam belong to one family. Their wives had jointly purchased a property namely house no. 104/343, Sisamau, Prem Nagar, Kanpur. 16. 15. From a perusal of the sale deed at page 144' of the paper book, it appears that Sri Pradeep Kumar Nigam, Sri Kuldeep Kumar Nigam and Sri Dilip Nigam belong to one family. Their wives had jointly purchased a property namely house no. 104/343, Sisamau, Prem Nagar, Kanpur. 16. Further there is nothing on record to indicate that the said accommodation, which was allegedly vacated by Sri Pradeep Nigam was solely in his tenancy. 17. It appears that brothers of Pradeep Nigam are also occupying the said tenanted accommodation. 18. Moreover, from a perusal of the application under Section 30 of U.P. Act No. 13 of 1972 filed by Pradeep Nigam, it is evident that he was in occupation of the tenement prior to purchase of a portion of this house namely House No. 104/348, Sisamau, Prem Nagar, Kanpur. It is also reflected from the record that only ½ portion of this house was purchased by the applicant/landlord. 19. Thus, it cannot be said that Sri Pradeep Kumar Nigam was inducted by the applicant/landlord after purchase in the year 2007 or the portion in his possession was vacated and was later on handed over to Sri Kuldeep Nigam and Sri Dilip Nigam by the applicant/landlord. 20. Further it cannot be ascertained from the documents on record that the portion in possession of Sri Pradeep Kumar Nigam lies in the ½ share of House No. 104/348 purchased by the applicant/landlord. The applicant/landlord is admittedly not owner of the entire House No. 104/348, Sisamau, Prem Nagar, Kanpur. 21. Last submission of the learned counsel for the petitioner is that an offer was given by the petitioner that he would unconditionally vacate half of the tenement which would satisfy the need of the landlord. The question of part release was not considered by the Courts below despite a categorical averment made in this regard. 22. To test the submission of learned counsel for the petitioner, a question was put to him as to how half portion of the tenement would satisfy the need of the landlord. Admittedly, there are only three rooms in possession of the tenant whereas two rooms at the ground floor are in occupation of the landlord. 22. To test the submission of learned counsel for the petitioner, a question was put to him as to how half portion of the tenement would satisfy the need of the landlord. Admittedly, there are only three rooms in possession of the tenant whereas two rooms at the ground floor are in occupation of the landlord. As per the requirement shown by the landlord in the release application, he needs three bedrooms one drawing room, one dining room, one guest room with all amenities like kitchen, latrine and bathroom. 23. The part release, therefore, would not meet the requirement of the landlord. 24. Moreover, the landlord is best judge of his own need. This Court from time and again has held that the Rent Controller Authority cannot be guide or ask the landlord to constrain his need. The need for residence set up by the landlord is writ large on the face of record. 25. For all the above noted reasons, no infirmity is found in the order impugned. 26. No interference is required. Dismissed. 27. However, at this stage, learned counsel for the petitioners submits that the petitioner may be given a reasonable time to vacate the premises in question. 28. It is, therefore, provided that: - (i) The petitioners shall file an undertaking within a period of six weeks before the Court below that they will vacate the premises in question on or before 31st January, 2017. (ii) In case, the petitioners fail to furnish undertaking or vacate the premises in question within the time given above, appropriate proceeding for their eviction may be initiated. 29. The petitioners shall also continue to pay the monthly rent to the landlord for the period of use of the accommodation.