Bhagwan Das @ Bhaggu vs Prescribed Authority Etawah & Ors.

J.C. Gupta, J.—Heard.

By means of this writ petition, the petitioner has prayed for the quashing of order dated 28197 passed by lower appellate Court (Annexure4) affirming the decision dated 20594 of the Prescribed Authority, respondent No. 1 whereby the release application of the landlord moved under Section 21(1) (a) of U.P. Act No. 13 of 1972 (hereinafter called as the Act) has been allowed.

The dispute relates to house No. 66 Mohalla Purohitantola. district Etawah which was under the tenancy and in occupation of Jay Ram Das as a tenant since before the house in question was purchased by the landladyrespondent No. 3 on 22580. The landlady applied before the Prescribed Authority for the release of the said house alleging that the same was bonafide required to meet the need of her family consisting of self, her husband, three daughters and one son as she wanted to settle down in Etawah for the education and up bringing of her children. As a temporary measure she was presently living with her motherinlaw in a rented house. Her husband who is a Railway employee was posted at Mainpuri and he is coming back daily to Etawah from Mainpuri. It was also pleaded that the tenant himself was not residing in the house in question as he was posted outside Etawah where he was living with his family and has sublet the house in question to his brothers MaganLal, Kishan Lal and Bhaggu alias Bhagwan Das, the present petitioner. Therefore, according to the landlady the tenant was not likely to suffer any hardship. Jay Ram Das tenant contested the said application and filed written statement interalia pleading that the need of the landlady was not bonafide and the only intention of filing the application was to sell the house and she had no desire to settle down at Etawah. It was also alleged that the husband of the landlady got himself transferred to Etawah from Mainpuri and he has been provided a Government quarter in Railway Colony. The allegation of subletting was also denied.

During the pendency of the proceedings, the tenant Jay Ram Das died and the petitioner as well as respondents No. 4 and 5 were brought on record as his legal representatives because the tenant died leaving no children and wife. The legal representatives so brought on record, however, did not file any separate written statement of their own.

On a consideration of evidence and material on record the Prescribed Authority by the order dated 20594 allowed the application of release in favour of the landlady. Appeal filed by petitioner and respondents No. 4 and 5 has also been dismissed by the impugned order dt. 281 97.

Learned counsel for the parties have been heard and with their consent and in the circumstances of the case this writ petition is disposed of finally at the admission stage as counter and rejoinder affidavits have been exchanged.

Both the Courts below have recorded concurrent findings on both the essential issues and have found that the need of the landlady for the release of disputed house is bonafide and genuine and further that on a comparison of hardship the landlady was likely to suffer a greater hardship than that of the petitioner and respondents No. 4 & 5. These are essentially findings of fact recorded on the basis of evidence and material on record and in exercise of jurisdiction under Article 226 of the Constitution, this Court will not interfere.

Learned counsel for the petitioner vehemently argued that during the pendency of proceedings before the trial Court admittedly the husband of the landlady has been transferred to Etawah and he has been provided with a Government quarter in Railway Colony where he is residing with his wife and children and therefore at present there existed no necessity for the landlady to have the house in question for residential Eurpose to meet out the requirements of her imily. The fact of availability of Government quarter was not denied by the landlady before the Courts below, however, her case was that the said accommodation was neither suitable nor convenient nor fulfills her requirements being smaller in size than the accommodation in question. It was also pleaded that the said accommodation was only temporarily available because her husband is on a transferable post and is not entitled to retain the Government accommodation on his transfer. The Courts below have examined this aspect of the case also in detail and the view taken by them cannot be said to be erroneous in law. It is of common knowledge that a Government servant who is on a transferable post is not entitled to retain government accommodation after his transfer, therefore the need of the landlady did not get extinguished on account of availability of residence of a temporary nature. Moreover the further finding of the Court below is that the Railway quarter is not suitable and convenient to the landlady because of its'' being smaller in size and not being situated at a convenient place.

It is also relevant to mention here that in the counter affidavit filed before this Court it has been stated by the landlady that her husband will retire in the year 1997 i.e. within this year. In the rejoinderaffidavit the petitioner has simply stated that this assertion was not made before the Courts below but it is not stated by the petitioner when the husband of respondent No.3 will retire if he is not retiring this year. With the retirement all benefits attached with the office while in service are no longer extended and a government servant after retirement is bound to vacate the government accommodation. In this view of the matter also the landlady''s need for getting her own house released becomes further more pressing.

Undisputedly out of four children of the landlady one daughter died during the pendency of the proceedings. Out of the three children remaining two are daughters and one son and by the passage of time they must have further advanced in their ages. As per the finding of the Courts below the date of birth of the eldest daughter is 171970 while that of second daughter it is 1775 meaning thereby that they must be now about 27 years and 22 years of age respectively. The son must have also become major by now. In these circumstances, it cannot be said that the need of the landlady is not bonafide and I do not find any reason to take a different view than what has been taken by the Courts below and this Court finds no sufficient reason to interfere with the findings of fact recorded by the Courts below.

For the above reasons, this writ petition is dismissed. No order as to costs is made.