Court No. - 7 Case :- WRIT - A No. - 15719 of 2003 Petitioner :- Panchoo Respondent :- The D.J. Jhansi & Others Petitioner Counsel :- Arun Tandon,R.M. Saggi,V. Bahadur Respondent Counsel :- Sc,S.S. Misra,Udai Goel Hon'ble Ran Vijai Singh,J.
This is the tenant’s petition filed against the judgment and order dated
14.12.1999 and 7.3.2003. Vide order dated 14.12.1999 the application of the
landlord filed under Section 21 (1) (a) of Uttar Pradesh Urban Buildings
(Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to
as Act No. 13 of 1972) was allowed whereas by the subsequent order dated
7.3.2003 the petitioner’s Rent Control Appeal No. 42 of 1999 was dismissed
by District Judge Jhansi.
The facts giving rise to this case are that the petitioner is the sitting tenant of
the disputed premises which is consisted of two rooms in House No.315 (New
no. 466) Mohallah Chaniapura, district Jhansi. The aforesaid premises was
given on rent to the petitioner about fourty years back. The release application
has been filed by the landlord in the year 1997 alleging therein that there are
19 members in his family including his three major sons. It has further been
stated that there is a tussle amongst the family members due to paucity of
accommodation therefore the disputed premises is required for use of
members of the family. It appears later on an amendment was sought in the
release application and it has been brought on record that apart from the
present accommodation there are certain other accommodation available to
the respondent landlord but that is not sufficient to meet out the need of the
family members.
The petitioner has filed reply to the release application denying the allegations
made in the application of release. In addition to that it has been alleged in
paragraph no. 20 of the reply that the family tussle is due to illicit relations
between the family members.
The matter was contested before the prescribed authority and the prescribed
authority has considered the bonafide need and comparative hardship between
the parties on the basis of material available on record and came to the
conclusion that the landlords need its bonafide. The finding with regard to the
comparative hardship has also been recorded in favour of the landlord.
Thereafter learned prescribed authority has allowed the release application of
the landlord vide order dated 14.12.199. The prescribed authority while
dealing with the aspect of bonafide need has placed reliance upon the judicial
pronouncements of this Court where it has been held that if the sons are
married and there is a quarrel between the family members then it can be a
ground for seeking release of the accommodation. It has also been recorded
that during fourty years of the tenancy the landlord has not made any effort to
find out any alternative accommodation. It is also recorded that two sons of
the petitioners who were living with the petitioner have shifted to some other
place in the city of Jhansi itself and are not living with the petitioner.
The petitioner had filed appeal against the judgment of prescribed authority
and and the appeal was also dismissed by the learned district Judge.
Sri P.K.Rai, learned counsel for the petitioner could not dispute this fact that
during the period of fourty years of tenancy the landlord has not made any
effort to find out any alternative accommodation. The finding with regard to
the shifting of the sons of tenant at other place has also not been disputed.
Although he tried to challenge the findings of fact recorded by the courts
below with regard to the bonafide need and comparative hardship but could
not point out any perversity in the same.
Sri Om Prakash, learned counsel appearing for the respondent has submitted
that in view of explanation 1 of Section 21 of Act No. 13 of 1972 the tenant’s
objection to the release application was not maintainable . He has further
submitted that concurrent finding of fact recorded by both the courts below
with regard to the bonafide need and comparative hardship should not be
interfered with under Article 226 of the Constitution of India unless the
finding recorded by the courts below are perverse. In his submissions the writ
petition deserves to be dismissed.
I have heard learned counsel for the parties. As has been noticed that during
the long tenure of the tenancy the landlord has not made any efforts to find
out any alternative accommodation and the sons of the landlord who were
residing with him has also shifted to other place, therefore, I find substance in
the submissions of Sri Om Prakash with respect to the non- maintainability of
the objection of the petitioner to the release application in view of
Explanation 1. The explanation 1 of Section 21 is reproduced below.
(1) Where the tenant or any member of his family (who has been normally
residing with or is wholly dependent on him) has built or has otherwise
acquired in a vacant state or has got vacated after acquisition a residential
building in the same city, municipality, notified area or town area, no
objection by the tenant against an application under this sub-section shall be
entertained;
Note :- For the purposes of this clause a person shall be deemed to have
otherwise acquired a building, if he is occupying a public building for
residential purposes as a tenant, allotee or licensee.
From the bare perusal of the language used under the explanation (1) it is
apparent that any dependent of the tenant if had acquired any alternative
accommodation in the same municipality or notified area or town area no
objection of the tenant can be entertained. Here in the present case the shifting
of sons has not been disputed.
Sri Rai has placed reliance upon the judgment of the Apex court in A.R.C.
1999 Volume 2 Page 440 Sudha Agarwal Vs. Xth Additional District Judge,
Varanasi and others where the Apex court has found that the explanation no.
1 is not sacrosanct and it has to be considered looking into the bonafide need
of the landlord. The Apex Court has held that unless the landlord prove its
bonafide need the explanation will not be applicable. So far as the present
case is concerned, in this case both the courts below have recorded the
concurrent findings of fact that the need of the landlord is bonafide. Nothing
has been brought to my notice from which it can be inferred that the findings
recorded by the courts below with respect to bonafide need and comparative
hardship in any manner are perverse.
In view of that the decision of the Apex Court cited by the learned counsel for
the respondent is distinguishable under the facts and circumstances of the
case.
The writ petition lacks merit and it is hereby dismissed.
In the last, learned counsel for the petitioner submitted that the petitioner may
be granted some reasonable time to vacate the premises.
Considering the facts and circumstances of the case, it is provided that the
petitioner is granted six months’ time to vacate the premises subject to filing
of an undertaking within six weeks from today before the prescribed authority
that he will vacate the premises by 21st July, 2010. In case of failure of filing
of an undertaking, as indicated, the respondent may proceed in accordance
with law.
Order Date :- 8.1.2010
Pratima