Mukesh Kumar vs District Judge and Others

A.B. Srivastava, J.—The facts and the questions raised In both these writ petitions being common, these can be and are being disposed of by a common order.

Learned Counsel for the Petitioners Shri Nalin Kumar Sharma and for the Respondents No. 2 Shri P.K. Jain appearing in both petitions have been heard.

Respondent in both the petitions, Roop Chandra, the landlord, filed two separate applications u/s 21 of Act 13 of 1972 praying for release of one shop each, in the tenancy of Mukesh Kumar, the Petitioner in writ petition No. 30952 of 1994, and Anand Swarup Singhal, the Petitioner in the writ petition No. 30963 of 1994, on the ground of his bona fide requirement to settle his one son Ram Gopal in the general merchandise business in the shop occupied by Mukesh Kumar and Anr. son Sanjay in the shop occupied by Anand Swarup Singhal. The application was opposed by the Petitioners on the ground that Ram Gopal and Sanjay are not sons of Roop Chandra rather are sons of his concubine Roshanl from her earlier husband. Ram Gopal and Sanjay are running their Joint general merchandise shop in village Sherpur. The shops in question are not bona fide required by the landlord and that if the release is allowed, they will be put to a great hardship.

The prescribed authority held that Smt. Roshani is legally wedded wife of Roop Chandra, Ram Gopal and Sanjay who are sons of the first husband of Roshanl are not male lineal descendants of Roop Chandra within the meaning of definition of family in Section 3 of Act 13 of 1972 and release to fulfill their need cannot be sought by the landlord. He accordingly rejected the application.

The learned appellate court on the other hand held Ram Gopal and Sanjay being the step sons of Roop Chandra to be his male lineal descendants, and finding the need set up by the landlord to be bona fide, and also concluding in his favour on the question of comparative hardship, allowed the release of both the shops.

The first and main question raised on behalf of the petitioner in both these writ petitibns is with regard to the maintainability of the application u/s 21(1)(a) of Act 13 of 1972 for the need of Ram Gopal and Sanjay on account of the fact they do not come within the definition of family'' u/s 3(g) of the Act. The contention is that they do not come under any of the three categories 0} to (Hi} of the said Sub-section. The contention on the other hand of the learned Counsel for the contesting Respondent is that even step-son is a member of the family the meaning of Section 3(g).

Having considered the submissions of both sides in the context of the relevant provisions of law, it is found that there is substance in the contention of the Petitioners that Ram Gopal and Sanjay who are the sons of Smt. Roshani, the present wife of the Respondent No. 2 from her first husband are not the male lineal descendant of the said Respondent. The expression lineal'' means male in a line of males. In the instant case, Ram Gopal and Sanjay are not so. Consequently they do not come under the category of the male lineal descendant of the Respondent Roop Chandra.

The decision in Ram Sanehi Lai v. District Judge Banda and Ors. 1978 ARC 440 cited in this regard by the Petitioners supports this view. Another decision of this Court in Smt. Parmeshwari Devi v. IInd Additional District Judge, Meerut 1977 ALJ 166, cited by the Respondent in this regard was rendered in a case where the person claiming to be male lineal descendant was born of one of the two wives of the same person. The principles laid down therein thus do not apply to the present case.

However, the mere fact of Ram Gopal and Sanjay not being male lineal descendants of Respondent landlord Roop Chandra, does not render the present release application at the instance of the landlord non-maintainable. The principles in this regard have been laid down in Badri Narain Rqjdan v. IIIrd Addl. District Judge, Allahabad and Ors. 1982 ARC 293. While interpreting the words bona fide required'' by the landlord for occupation by himself, Hon''ble U.C. Srivastava, J. has held that same cannot be construed very narrowly and cannot be taken to mean that the words may mean ''by himself only''. It may include landlord''s servant or some other person or persons who look after him or takes care of him or whose company and assistance is, or has become necessary, though technically they may not be members of his family as defined in the Act. With respect, I find myself in agreement with the principles laid above.

In the instant case, admittedly Ram Gopal and Sanjay though being step-sons of Respondent Roop Chandra are residing with him as members of his family as commonly understood. This fact is also confirmed by the finding to the effect that Smt. Roshani, the mother of Ram Gopal and Sanjay is the legally wedded wife of landlord Roop Chandra, and is not a concubine as was sought to be projected by the Petitioners. On these facts and circumstances, therefore, the Respondent''s claim that he requires the shops in question for occupation by himself to settle in business Ram Gopal and Sanjay, who are dependant upon him, cannot be discarded both on facts and in law, and the release application could not be said to be not maintainable and the need imaginary or fanciful.

On the question of comparative hardship also, a finding of fact has been recorded, and in view of the law laid down in Muni Lal and Others Vs. Prescribed Authority and Others, , the same is not open to interference in this proceeding.

As an alternative measure, the two Petitioners filed in writ petition No. 30963 of 1994 a proposal to the effect that they are agreeable to the possession of the shop in the tenancy of Anand Swarup to be handed over to the landlord to accommodate his both sons in the same, provided he agrees to accommodate both the Petitioners in the shop in the tenancy of Mukesh Kumar by allowing them to partition the same in two equal parts. The Respondent has not expressed his willingness to the same and a partition of the tenancy could not under law be thrust on him. Consequently, the order of release has to be upheld as a whole without any Interference or modification

Both the writ petitions are accordingly dismissed. However, the Petitioners are allowed three months time to vacate the shops in question provided they furnish an undertaking to the effect before the Prescribed Authority within a period of three weeks to deliver the vacant possession to the Respondent. In case of failure, the order shall become executable forthwith. There is no order as to costs.