Abdul Aziz Khan (dead) through LR vs District Judge,Etah & Ors.

J. C. Gupta, J.—This is tenant''s petition arising out of proceedings initiated by the contesting Respondent No. 2, and it seeks to challenge the order dated 13885 passed by the Respondent No. 1 whereby the release application filed by Respondent No. 2 under Section 21(1) (a) of the U.P. Act No. XIII of 1972 (to be referred to as the ''Act'' hereinafter) has been allowed.

The dispute relates to a residential house situated at 189, Patiyali Gate, Chowk Murli Singh, Etah, which is in the tenancy of the petitioner since before the house was purchased by Respondent No. 2 on30ll78.

In order to appreciate the facts of the present case in a better way, it is necessary to narrate in brief the history which led to the present litigation between Respondent No. 2 and the petitioner. The husband of Respondent No. 2, Mohd. Irfan, was serving in Railways and was posted at Kasganj. He was occupying on rent a house in mohalla Nawab in the town of Kasganj belonging to one Mohd. Bux. His landlord, Mohd. Bux moved an application under Section 21(1) (a) of the Act for the release of the said rented house. The same was contested by Mohd. Irfan. The Prescribed Authority by the order

dated 30475 rejected the said application of Mohd. Bux, but the appeal filed by Mohd. Bux was allowed by the order dated 751976. Against that order, Mohd. Irfcn filed Writ Petition No. 954 of 1976 before this Court and the same was allowed by the order.

The appeal filed by Respondent No. 2 has also been allowed by the impugned order whereby her release application has been allowed and the petitioner has been ordered to be evicted from the disputed house. The tenant has come up before this Court by means of this writ petition Against this part of the order of the District Judge.

Learned Counsel for the parties have been heard and record has also been perused.

from the narration of the above facts it ii clear that on the date impugned order in appeal was made on 13885 the release application moved by Mohd. Bux against Mohd. Irfan, husband of Respondent No. 2, in respect of rented house at Kasganj, after the order of remand passed by the District Judge, was still pending decision before the Prescribed Authority. Therefore, at the time when the present application of release reached the stage of finality i.e. when the appeals were decided on 13885, the threat that the husband of the landlady and his family members might be evicted from the rented house of Kasganj was still subsisting. It is well settled that a landlord, who himself is in occupation of a rented house, when is faced with eviction proceedings in respect of that house, may legitimately and bonafidefy ask for the release of his own house in occupation of his tenant especially where he does not have any other accommodation to shift and live there. The possibility of the eviction proceedings between Mohd. Bux and Mohd. Irfan being collusive is completely ruled out in the sequence of events that occurred before the initiation of the present proceedings. Therefore, it has rightly been held by the lower Appellate Authority that the Respondent No. 2 had a bonafide need for the disputed house because against her husband proceedings for the release of the rented house were pending and eviction of her family was threatened.

Learned Counsel for the petitioner pointed out that during the pendency of this writ petition, the release application moved by Mohd. Bux against the husband of the landlady has been decided in appeal and the said release application has been rejected ultimately by the order dated 9986 and, therefore, the very basis of the need set up by the Respondent No. 2 has become nonexistent. Learned Counsel for the respondent, placing reliance on the Supreme Court decision in Kamleshwar Prasad v. PradumanjuAgarwal, JT 1997(4) SC 425, however, argued that any event subsequent to the decision of Appellate Authority, which was made on 13885, cannot be looked into by this Court in exercise of its power of superintendence under Articles 226 and 227 of the Constitution because under the Rent Control Act, order passed in appeal under Section 22 is final. It was further argued that in any view of the matter since the husband of the landlady has retired from Government service, he cannot be compelled to continue to reside with his wife, Respondent No. 2, in the house taken on rent at Kasganj from Mohd. Bux. In the aforesaid decisionKamleshwar Prasad (supra) it was held by the Apex Court that under the Act the order of the Appellate Authority is final and the said order is a decree of Civil court and a decree of a competent court having become final cannot be interfered with by the High Court in exercise of its power of superintendence under Articles 26 and 227 of the Constitution, by taking into account any subsequent event which might have happened. In the aforesaid case the Prescribed Authority had rejected the release application filed by ^he landlord. However, the Appellate Authority on reappraisal of evidence on record reversed conclusion of the Prescribed Authority and allowed the release application of the landlord. The tenant being aggrieved by the order of Appellate court carried the matter to the High Court by filing a writ petition. During the pendency of writ petition, the landlord died and was substituted by his legal heirs, namely, his widow, two sons and the married daughter. On behalf of the tenant it was urged before the High Court that on account of death of the landlord, thebona fide requirement which was found to have existed by the Appellate Authority no more survives, and, therefore, the order of eviction was liable to be quashed. The High Court came to the conclusion that the decree for eviction has become final and the said finality could not be disturbed on the application under Article 226 of the Constitution by taking into account the fact that the original landlord died during the pendency of the writ petition. The tenant took up the matter before the Supreme Court which also dismissed the appeal holding that since the order of Appellate Authority had attained finality, the same could not be interfered with by the High Court on the ground of a subsequent event happening during the pendency of the writ petition.

In the present case as already pointed out above when the appeals in question were decided by the lower Appellate Authority, the release proceedings initiated against the husband of the landlady in respect of his tenanted accommodation were still pending. In this view of the matter, there was weight in the assertion of the landlady that on account of the said proceedings, there was an imminent danger to her and her family members from being evicted from the tenanted accommodation''situated at Kasganj, and, therefore, her need for having her own house for the use of the same by her and her family members was bonafide.

Apart from the above factor, it is an admitted case of the parties that the husband of the landlady was residing in a rented house at Kasganj belonging to Mohd. Bux as he was then posted at Kasganj on account of his being in service in railways. It is also not disputed that the husband of the landlady has since retired and was no more in Government service, no landlord/landlady in such circumstances could be compelled to continue his/her residence in a rented house and pay rent to his/her landlord though he or sne may be having his/her own house. Therefore, in the circumstances, it cannot be held that the need of the landlady for the house in question has vanished due to the rejection of release application moved against her husband subsequently. Once the landlady with her family occupies the house in question, a deemed vacancy would arise in respect of the rented house at Kasganj and the petitioner may apply for allotment of the said house and under the provisions of the Act and the Rules he has a preferential right so far as applications for allotment are concerned. Further, if the landlady does not shift in the house in question as per the release order and continues her residence with her husband in the rented house at Kasganj, a provision has been made in the Act in Section 24 to safeguard interest of such a tenant who has been ousted from the rented house in consequence of a release order made under Section 21(1) (a) of the Act, by confering a right of reentry upon such a tenant. However at this stage it cannot be said that the landlady would not shift to her own house from the rented house specially when her husband has retired from service.

Learned Counsel for the petitioner could not point out any legal defect or infirmity in the impugned order which may call for interference by this Court in exercise of its jurisdiction under Articles 226 and 227 of the Constitution, and this Court finds no sufficient ground to interfere specially when the petitioner/tenant had made no sincere efforts to obtain any other house on rent or otherwise during this long period of litigation which commenced in the year 1982.

For the above reasons, this writ petition is liable to be dismissed.

Learned Counsel for the petitionertenant then made a request that some reasonable time may be allowed to the petitioner to vacate the house in question so that in the meantime he make some alternative arrangement. Learned Counsel for the respondents opposed this prayer by urging that the proceedings for release were initiated in the year 1982 and the husband of the landlady has also retired and is facing much inconvenience and hardship.

Considering the entire facts and circumstances, the petitioners are allowed time upto 311288 to vacate and handover vacant possession of the house in question to the landladyRespondent No. 2 subject to their filing an undertaking on affidavits before the Prescribed Authority within four weeks from today to the effect that they shall hand over vacant possession of the house in question to the landlady Respondent No. 2 on or before 311298 and shall not indust any third person therein. For a period of four weeks from today, the operation of the impugned order of release shall remain suspended. In case an undertaking as aforesaid is filed within the specified period, the petitioner shall not be evicted from the premises in question till 311298. However, in the event of the required undertaking being not filed within the aforesaid period of four weeks, it shall be open for the landlady Respondent No. 2 to get the order of release enforced forthwith, in accordance with law.

With the above concession made in favour of the petitioner, this writ petition is dismissed and the impugned order of the lower appellate authority dated 13885 js upheld. Parties are directed to bear their bwn costs.