Devabrata Bhattacharya vs I Additional District Judge and Others

Hari Swarup, J.—This petition arises out of proceedings u/s 21 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act (hereinafter called the Act).

The landlord moved an application for an order of eviction against a tenant on the ground of bonafide need. The prescribed authority found that the need was bonafide and accordingly granted the application. The First Additional District Judge has dismissed the appeal. The tenant has now tiled the present Writ Petition.

Learned Counsel contended that the order is not in accordance with law because the finding about the need being bonafide is perverse and because the comparison of the hardships to be suffered by the landlord and tenant has not been done. He has also urged that the proceedings were barred by the principle of constructive res-judicata.

The appellate authority has taken into consideration the various facts for determining the bonafides of the need of the" landlord. He has found that the house he lives in is in dilapidated condition and that two of the rooms had fallen down. The report of the licensed architect shows that three rooms had fallen down before 23-4-1973 and the house was of mud. There is also the finding that the landlord''s son was occupying another house. These circumstances cannot be said to be irrelevant. Whether a need is bonafide or not depends on the motivation that propels a person to ask for vacation of the accommodation. If the need is genuine for the occupation of the house by the landlord it will be deemed a bonafide need. Here the finding is that the need is genuine.

In support of his second contention, learned Counsel relied on Rule 16 of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules. The main provision of Rule 16(1) provides for comparison of hardships to be suffered by allowing or rejecting the application. In the present case there is a finding that the number of members in the family of the landlord is large and the accommodation in their possession is very small. There is also the finding that the family of the tenant consists of two persons only. The principle of greatest good of the greatest number applied reversely would be a relevant consideration in determining as to who will suffer greater hardship. The finding of the court below cannot be deemed to be arbitrary or perverse.

The clause in the Rule which may be relevant is Clause (f) of Sub-rule (i) which provides that:

(f) where the landlord offers to the tenant alternative accommodation reasonably suitable to the needs of the tenant and his family, the landlord''s claim for release of the building under tenancy shall be construed liberally;

The appellate court has also taken into consideration the circumstance that the landlord had offered alternative accommodation to the tenant. Learned Counsel for the Respondents has reiterated that both the accommodations, i.e., the one occupied by the landlord and that occupied by his son will be made available for being allotted. Although the words of Clause (f) say that the landlord has to offer to the tenant alternative accommodation, but under law the offer has to be only to the prescribed authority for enabling him to allot it to the person whose need may be the greatest. Of course, once the application u/s 21 of the Act is allowed the need of the person to be ejected will be bonafide if he has no alternative accommodation.

The question of res judicata hardly arises in the present case. The point was not raised before the appellate authority as is apparent from the judgment. There is no allegation in the writ petition that the point was raised before the appellate court but it did not consider it. Further, the principle of res judicata applies only to situations which are static and not to changing situations. In the present case, the condition of the landlord''s house is in the process of constant deterioration, his son has been transferred and the landlord needs additional accommodation to accommodate him. In these circumstances, the principle of res judicata can have no application unless the law specifically so provides.

The impugned appellate order cannot, for the reasons stated above, be held either to suffer from any error of jurisdiction or manifest error of law.

The writ petition accordingly fails and is dismissed. Parties will bear their own costs. The stay order is vacated.