Satnam Singh and Others vs A.S.J./F.T.C. No.3, and Others

Rakesh Tiwari, J.—Notice on Respondent No. 3-tenant has been deemed to be sufficient by order of this Court dated 4.9.2006. No counter-affidavit has been filed on behalf of Respondent No. 3. Respondent No. 4 is formal party but has filed a counter-affidavit.

Heard counsel for the Petitioner, counsel for the Respondent No. 4 and the standing counsel for Respondent Nos. 1 and 2. Also perused record.

This is landlord''s petition challenging the validity and correctness of judgment dated 17.11.2004 (Annexure-5 to the writ petition) passed by Additional Sessions Judge/Fast Track Court No. 3, Muzzaffarnagar and judgment and order dated 31.3.2003 (Annexure-3 to the writ petition) passed by Civil Judge (Senior Division) Kairana district Muzaffarnagar.

Briefly stated, the facts of the case are that late Kuldeep Singh, father of Petitioner Nos. 1 to 3 was landlord of the disputed accommodation. He together with his family members was residing in the upper storey of the building. There are four shops on the ground floor. Mohd. Salif alias Mando son of Sri Kalamuddin-Respondent No. 3 is tenant of one of the shops situated just beside the stairs of the residence of the Petitioners.

The case of the Petitioners is that the vacant place lying behind the shop in possession of Respondent No. 3 is in dispute. Sri Satnam Singh is degree-holder of computer education and he is in need to set up computer education centre for his livelihood, as such, release application u/s 21(1)(a) of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as ''the Act'') was filed before the Civil Judge (Senior Division) Kairana. The application was registered as S.C.C. Case No. 19 of 1998.

The case was contested by the tenant-Respondent No. 3 denying the plaint allegations on the ground that the Petitioner-landlords are not in bona fide need of the disputed accommodation.

The release application of the Petitioner was ultimately dismissed vide judgment and order dated 31.3.2003 by the Civil Judge (Senior Division), Kairana holding that:

Aggrieved by the judgment and order dated 31.3.2004, passed by the Civil Judge (Senior Division), Kairana, the Petitioners preferred Rent Control Appeal No. 3 of 2003 before the District Judge, Muzaffar Nagar, which has also been dismissed by the impugned judgment and order dated 17.11.2004 by the appellate court reiterating the findings given by the Civil Judge (Sernior Division) Kairana dated 31.3.2003. Relevant portion of the order dated 17.11.2004 is as under:

Aggrieved against the judgment and order of the courts below, the Petitioners have filed the instant writ petition.

Counsel for the Petitioners contended that the Civil Judge (Senior Division) has given a finding that a son and a daughter of Respondent No. 3-tenant are unmarried so his hardship is greater than the landlords without considering the invitation card produced by the Petitioners to the effect that marriage of his daughter was solemnized on 29.4.2003. The appellate court also affirmed the finding of the trial court, without, at all, adverting to the evidence of solemnization of marriage produced by the Petitioners. He urged that the Respondent No. 3 is in possession of other premises, including a shop in which his sons are doing business in his own house where he is carrying on business of ''atta chakki'' (flour mill) and electricity connection for running the ''atta chakki'' is in his name only but the courts below conveniently ignored this aspect of the matter as well as the fact that son fall within the definition of ''family'' of the Respondent (father) u/s 3(g) of Act No. XIII of 1972. There was no evidence before the court below that son of the tenant is living separately. The courts below have blindly believed the statements and averments of the Respondent-tenant and have been swayed by fact that his sons and daughter are unmarried. It is unrebutted that now they are married and the Petitioners are also married hence their bona fide need and comparative hardship is greater than the tenant.

Counsel for the Petitioners vehemently urged that the courts below have failed to consider that bona fide need of each and every member of the family of the landlords has to be taken into account for arriving at a conclusion regarding bona fide need and comparative hardship rather cart has been placed before the horse and need and hardships of tenant due to unmarried son and daughter has been given precedence over unmarried (now married) Petitioners ignoring the evidence on record.

A concurrent finding of fact has been recorded by the courts below that bona fide need of the landlords is not more than the tenant, who has the responsibility to marry his son and daughter.

It appears from record that the case of the Respondent-tenant before the courts below was that the rent of other shops available in Shamli, district Muzzaffarnagar is not less than Rs. 2,500 per month. This statement was made by the Respondent No. 3-tenant way back in the year 1999. I find force in the contention of counsel for the Petitioners that if the Respondent-landlords who are in dire need of shop, are compelled to take shop, on rent, they will have to pay rent not less than Rs. 3,500 at present and, thus, the Petitioners will suffer greater loss and injury if the shop, in dispute, is not released. I also find force in the submission of counsel for the Petitioners that the courts below conveniently ignored the evidence produced by the Petitioners that the Respondent No. 3 had already solemnized marriage of his unmarried daughter.

That apart, son of the tenant is running a flour mill from the house, which is owned by the Respondent-tenant. Reference in this regard may be made to Annexure-7A to the writ petition which shows that power connection exists in the name of the Respondent-tenant for running flour mill. Thus, it is clearly established that the Respondent-tenant has his own house together with a shop therein. In this view of the matter, bona fide need of the tenant stands extinguished. This relevant aspect of the matter has been brushed aside by the courts below.

Hon''ble the Apex Court in a catena of cases has held that Act No. XIII of 1972 applied with full force to residential as well as commercial buildings, hence, in view of acquisition of alternate accommodation by the tenant, Explanation (i) to Section 21(1) of the Act automatically applies to the facts of the instant case, which is as under:

Explanation.-In the case of a residential building- (i) where the tenant or any member of his family who has been normally residing with him or is wholly dependent on him has built or has otherwise acquired in a vacant state or has got vacated after acquisition a residential building in the same city, municipality, notified area or town area, no objection by the tenant against an application under this Sub-section shall be entertained.

The Respondent-tenant having acquired alternate accommodations, he has no legal right to continue in possession of the disputed accommodation.

This Court in Banshidhar v.II Ird A.D.J., Aligarh, 2000 (2) ARC 808 and Dwarika Nath Soni Vs. Bhagwan Dass Gupta, has held that every adult member of the family has a right to settle down in independent business. Such need cannot be rejected on the ground that the same is not bona fide.

For the reasons stated above, the writ petition succeeds and is allowed. Judgment dated 17.11.2004 (Annexure-5 to the writ petition) passed by Additional Sessions Judge/Fast Track Court No. 3, Muzzaffarnagar and judgment and order dated 31.3.2003 (Annexure-3 to the writ petition) passed by Civil Judge (Senior Division) Kairana district Muzaffarnagar are quashed. The Respondent-tenant will vacate the disputed accommodation and hand-over its peaceful possession to the Petitioner-landlords within 15 from today and make payment of arrears of rent, if any, within the same period. In case, he fails to comply with this direction, he will be liable to be evicted by coercive process, in accordance with law, with the aid of local Police and the arrears of rent shall be recoverable as arrears of land revenue. No order as to costs.