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2018 DIGILAW 1125 (ALL)

Bhupinder Kaur v. Rajendra Shukla

2018-05-04

SANGEETA CHANDRA

body2018
JUDGMENT : Sangeeta Chandra, J. This petition has been filed by the petitioners praying for a writ in the nature of certiorari for quashing the order dated 14.9.2010 passed by the Prescribed Authority in Rent Case No. 22 of 2007 and for quashing of the order dated 1.2.2018 passed by the Appellate Court - learned District Judge in Rent Appeal No. 95 of 2010. 2. Learned counsel for the petitioner has submitted that the Release Application was filed by the landlord after purchase of the house no. 110/132 Ram Krishna Nagar, Kanpur in which the petitioner was a sitting tenant in 2007. In Release Application, the respondent/landlord had stated his need for the accommodation both for residential and commercial purpose. 3. It was the respondent/landlord case that in his individual family, there were four members i.e. he himself, his wife and two grown up sons. He needed to establish his grown up sons in separate business of hosiery. 4. At the time of filing of the application, the landlord was living in the house of his father - Shashi Kant Shukla. Shashi Kant Shukla had three other sons and all sons were grown up and married and they had grown up children also. The house in which Shashi Kant Shukla and his family were residing, namely house no. 109/220 Jawahar Nagar, Kanpur was in sufficient for the need of nineteen members of the family, as the ground floor of the said building was completely commercial. The first floor had seven rooms and the second floor had five rooms. All four sons had grown up children, therefore four kitchens were in existence also in the said first and second floor. The third floor was not being used for residential purpose and it had only a tin shed. 5. It was submitted by the respondent/landlord in the Release Application that there were seven daughters of Shashi Kant Shukla. All of whom were married to highly placed persons enjoying very good status in the society and all had children also. There was a dire need of additional accommodation in the house owned by Shashi Kant Shukla and therefore Shashi Kant Shukla had asked the respondent/landlord to buy his own house and shift his family to the said house. The respondent/landlord had therefore bought house no. There was a dire need of additional accommodation in the house owned by Shashi Kant Shukla and therefore Shashi Kant Shukla had asked the respondent/landlord to buy his own house and shift his family to the said house. The respondent/landlord had therefore bought house no. 110/132 Ram Krishna Nagar, Kanpur with a sole purpose of shifting his family to the said house and also establishing his sons in independent business. 6. In the written statement filed by the petitioners/tenant, it was brought on record that had the respondent/landlord been in dire need of alternative accommodation, he would not have bought a house which were already occupied by a sitting tenant taking the risk of litigation and further delaying his shifting to the said house. 7. In the written statement, it was pointed out that the respondent/landlord was a big businessman and there were four houses already in his possession, details of which were given in the written statement, namely house nos. 109/222-A Jawahar Nagar, Kanpur, 109/220 Jawahar Nagar, Kanpur, 117/269 O Block, Geeta Nagar, Kanpur and Plot No. 76 in Dada Nagar Industrial area. Plot No. 76 was a commercial plot measuring over 2000 square yard of which half had been handed over by the landlord to his brother and house no. 109/222-A was owned by the mother of the respondent/landlord - Smt. Kunti Devi and was occupied by one of her sons Satish Shukla. House No. 109/220 Jawahar Nagar, Kanpur was being used for commercial purpose as also. Plot No. 76 Industrial area, Dada Nagar, Kanpur was being used for manufacture of hosiery business and if the respondent/landlord was in such dire need of accommodation instead of handing over half of the said plot no. 76 Dada Nagar, Kanpur to his brother, he could have set up his residence on Plot No. 76 industrial area, Dada Nagar, Kanpur. 8. The learned counsel for the petitioner/tenant has also submitted that house no. 109/222 Nehru Nagar, Kanpur was also purchased by the landlord during the pendency of litigation through sale deed registered on 20.1.2014. The said house was big house and purchased in a vacant state. The landlord has established his two sons hosiery business in the said house and also shifted his residence therein and thus his need for accommodation stood satisfied. 9. The said house was big house and purchased in a vacant state. The landlord has established his two sons hosiery business in the said house and also shifted his residence therein and thus his need for accommodation stood satisfied. 9. It has been submitted by Sri P.K. Sinha appearing for the petitioner/tenant that the need set up by the respondent/landlord was not genuine and bonafide, but had been detailed as a desire of the father of the respondent/landlord - Shri Shashi Kant Shukla to get his house no. 109/220 Jawahar Nagar, Kanpur vacated by his son Rajendra Shukla to accommodate the growing need of his otherwise big family. 10. It has been submitted by the learned counsel for the petitioner that it has come on record through affidavits that two grown up sons for whose commercial need and setting up for business separately had already been accommodated in Nehru Nagar. In the new premises bought during the pendency of the litigation. This fact was admitted by the respondent/landlord and the need for establishing a separate residence had also been met by the landlord shifting to a two storeyed independent building i.e. house no. 109/222 Ram Krishna Nagar. The subsequent events having been brought on record were not looked into at all either by the Prescribed Authority or by the Appellate Authority. 11. Sri H.N. Singh, learned Senior Counsel assisted by Sri D.P. Singh on the other hand has pointed out from the observations made by the Prescribed Authority in his order dated 14.9.2010 that he has considered all four houses and the alleged accommodation available in them, which the petitioner/tenant had pointed out were alternatively available to the landlord. The current residence of the landlord was in a twelve rooms house which were jointly occupied by his father - Sri Shashi Kant Shukla and his three brothers along with their wives and grown up children. There were seven married daughters who frequently came to visit their parents. Therefore, the father wanted the respondent/landlord to shift to the new premises bought by him in which the petitioner was a siting tenant. 12. The Prescribed Authority has also taken note of one house belonging to the mother of the landlord which was being occupied by one of his brothers. With regard to plot no. Therefore, the father wanted the respondent/landlord to shift to the new premises bought by him in which the petitioner was a siting tenant. 12. The Prescribed Authority has also taken note of one house belonging to the mother of the landlord which was being occupied by one of his brothers. With regard to plot no. 76 industrial area, Dada Nagar, Kanpur, a finding has been recorded that the same was being utilised for manufacturing hosiery and was purely industrial in purpose and could not be utilised as a residence. With regard to one other flat supposed to be existing in Geeta Nagar, Kanpur, the same was shown to be in the ownership of the brother-in-law of the respondent/landlord and there was already litigation amongst brother-in-law and wife of the respondent/landlord with regard to its possession and ownership after the death of their parents. 13. The new premises that were bought in 2014 in Nehru Nagar during the pendency of Appeal which had been pointed out by the tenant to the Appellate Court had also been considered in the order passed by the Appellate Authority. The Appellate Authority had found that the two grown up sons of the respondent/landlord have been set up in their independent business in the new house bought in 2014. The need for residence was pressing and genuine as has been considered in detailed by the Prescribed Authority and by the Appellate Authority. 14. Sri H.N. Singh has also pointed out that the Prescribed Authority had taken into account a report of the Commission issued during the pendency of the litigation with regard to accommodation available presently in house no. 109/220 Jawahar Nagar, Kanpur as well as other alleged three houses of the respondent/landlord at the time of filing of the Release Application. 15. The Appellate Authority has taken into account the fact that petitioner/tenant had also acquired a vacant accommodation adjacent to his current accommodation which he was utilisying for storing building materials. The concurrent findings of fact have been recorded with regard to unavailability of other accommodation with the landlord by the Prescribed Authority and by the Appellate Authority and this Court in writ jurisdiction ought not to interfere likely unless the findings are shown to be perverse. 16. Sri. The concurrent findings of fact have been recorded with regard to unavailability of other accommodation with the landlord by the Prescribed Authority and by the Appellate Authority and this Court in writ jurisdiction ought not to interfere likely unless the findings are shown to be perverse. 16. Sri. P.K. Sinha, learned counsel for the respondent on the other hand has pointed out that a collusive Suit was filed by Sri Shashi Kant Shukla - the father of the respondent/landlord for creating evidence to be utilised in the Release Application by the respondent/landlord to help him evict the petitioner/tenant. 17. Sri P.K. Sinha, learned counsel for the respondent has also pointed out the contents of the Release Application once again to the effect that the landlord had made averments therein that after getting the house in question vacated from the tenant, he shall reconstruct the same and use the ground floor for commercial purpose of establishing his two sons in hosiery business and the first floor of the house for the residential purpose for his four member family, the application for release was therefore also filed under Section 21(1)(b) saying that the present condition of the house was not such as could be used readily for residential purpose and it needed reconstruction, but the requirement under Rule 17 of the U.P. Urban Building (Regulation of Letting, Rent and Eviction) Rules, 1972 were not followed and no map in conformity with the Bye-laws of the local authority was submitted for examination by the Prescribed Authority for allowing such Release Application. 18. Having heard the learned counsel for the petitioner/tenant and the respondent/landlord, this Court is of the considered opinion that the application filed by the respondent/landlord was only under Section 21(1)(a) showing bonafide need for residence of his four member family of the respondent/landlord and for establishing the two grown up sons in hosiery business independently. It was not an application filed under Section 21(1)(b) and there was no averment in the release regarding dilapidated condition of the house and its unfitness for residential purpose. It was rightly treated as an application under Section 21(1)(a) alone by the Prescribed Authority and by the Appellate Court. 19. It was not an application filed under Section 21(1)(b) and there was no averment in the release regarding dilapidated condition of the house and its unfitness for residential purpose. It was rightly treated as an application under Section 21(1)(a) alone by the Prescribed Authority and by the Appellate Court. 19. With regard to the petitioner's objections regarding availability of alternative accommodation in the form of four other houses details of which were given by the petitioner/tenant before the Prescribed Authority and the Appellate Authority, the same were got inspected and a Commission report is on record which was considered in detail by the Prescribed Authority and by the Appellate Court also, to come to a conclusion that none of the other four alleged alternative residential accommodation were fit to be utilised as such by the respondent landlord. 20. It is settled law that the landlord is the best judge of his need and this Court would not interfere in concurrent findings of fact regarding bonafide need established before the Prescribed Authority and the Appellate Authority by the respondent/landlord. This Court can only interfere when there is a perversity in the findings recorded or when the learned Courts below have acted without jurisdiction or far in excess of jurisdiction. 21. The orders passed by the Prescribed Authority and the Appellate Court have both been perused carefully by this Court with the help of the learned counsel for the parties. There is a sufficient detailed consideration of all facts pointed out by the petitioner/tenant and the orders impugned do no suffer from any factual or legal infirmity to warrant interference it to be shown by this Court in extraordinary jurisdiction under Article 226 of the Constitution of the India. 22. The writ petition is dismissed. No order as to costs.