Jani Khan vs 3rd Addl. District Judge and Others

Sudhir Narain, J.—This writ petition is directed against the order of IIIrd Addl. District Judge, Saharanpur dated 1-9-1982 whereby he confirmed the order of Prescribed Autharity allowing the application of the landlord, filed u/s 21 of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, hereinafter referred to as "the Act". The Respondents claiming themselves to be members of the association filed application u/s 21 of the Act against the Petitioner for release of the accommodation in question on the ground that the Petitioner is a tenant of an accommodation consisting of two rooms. Sahan etc. on the ground floor situate in Mandir Wall Gall, Khalalampura. Shaharanpur. The association was formed to run Madrassa Nizamul Quran in mohaila Khalalampura, Saharanpur The Madarsa is being run in the room consisting of dimensions 19'' x 9" x 35'' x 7". The accommodation with the tenant is adjoining to this Madarsa. The accommodation with the Madarsa was quite inadequate on account of which the teaching work was being hampered The Management also decided to start separate classes for girls and boys there was bat no additional accommodation with the management. The accommodation with the tenant was adjoining to the Madarsa and was mast suitable for expanding the Madarsa, The Petitioner sells milk and has got three she-buffaloes and his sons arc also earning and he has a plot nearby In which he can shift suitably.

The application was contested by the Petitioner. He raised various legal pleas as to the maintainability of the application. It was alleged that the accommodation in question was residential one and could not be used for non-residential purpose. The Respondents were not entitled to file an application u/s 21 of the Act, The need as alleged in the application was not correct and In case the Petitioner was ejected, he would suffer greater hardship in the event the application was allowed. It was alleged that no notice was Issued to the Central Sunni Waqf Board and hence the application was not maintainable.

The Prescribed Authority held that the need of the landlord was bonafide for running the Madarsa it was a religious Institution and it could not be treated "as a business. The Madarsa was being run by the Association and the accommodation was too short for accommodating the students and for expanding the Madarsa. The tenant could make suitable alternative arrangement for getting the accommodation for residential purpose the application was allowed. The order of the Prescribed Authority was upheld by the Appellate Authority.

The learned Counsel for the Petitioner urged that the accommodation in question is being used for residential purpose, therefore, it can not be released for running of a school. The residential building cannot be released for occupation of business purpose under Clause 2 to third proviso to Sub-section (1) of Section 21 of the Act which reads as under:

...Provided also that no application under Clause (a) shall be entertained:

(i) In the case of any residential building, for occupation for business purpose.

In Husaini Dhobi v. III Addl. District Judge Lucknow 1986 (2) ARC 254 it was held that building cannot be released for ''business purpose''. The word ''business'' has been defined under Rule 2(b) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 which reads as follows:

(b) ''Business'' means any profession trade or calling.

The said provision is not applicable to the facts of the present case, as running a Madarsa for Imparting religious education and that too of a honorary character cannot be brought within the term ''business'' which has been defined in Rule 2(b) of the Rules It is not the case of the petitioner that the Madarsa is being run for any profit. Even no fee is charged from any of the student receiving education there. The Appellate Authority has recorded finding that Madarsa is being run simply for imparting education of Kuran and Urdu language and that too gratuitously.

It was next contended that the Petitioner would suffer greater hardship in case the application is allowed. The Appellate Authority has recorded a finding that the Respondent had constructed 11 quarters but as they were at some distance from the room where the Madarsa is being run that Madarsa cannot be run in those quarters. It may be correct that accommodation in question is suitable for running the Madarsa which adjoins to the room where Madarsa is being run but the Petitioner could have offered such quarters. This aspect has not been considered by the Appellate Authority. The learned Counsel for the Respondents submitted that the Petitioner did not make any such request at the time the application was filed and subsequent there to those quarters might have been let out to some other person and secondly the Petitioner owns a plot where he could have constructed accommodation. He is milkman having three she-buffaloes at the time of moving application and his sons are grown op. This aspect has not been taken into consideration by the Appellate Authority while considering the hardship of the Petitioner.

The finding that the accommodation is bonafide needed by the Respondent is affirmed. The Appellate Authority shall, however, consider the question of hardship in the light of the observation made above and in accordance with law. No other point was pressed in the writ petition.

The writ petition is allowed in part and Respondent No. 1 is directed to consider the hardship of the Petitioner in the light of observations made above and in accordance with law. The case shall be decided within a period of two months from the date of filing of a certified copy of this order.

The parties shall bear their own costs.