Savitri Devi and others vs Santosh Kumar Sharma and others

Rakesh Tiwari, J.—Heard Sri Vikram Bhalla, Counsel for the petitioner, Sri Satish Mandhyan appearing for caveator respondent and perused the record.

Babu Lal, landlord of the house in dispute, filed rent Petition No. 12 of 1990. Babu Lal v. Ram Sakat, for release of the accommodation under section 21 (1)(a) of U.P. Act No. 13 of 1972 (hereinafter referred to as the Act). After his death, he is being represented by his sonsrespondent Nos. 1, 2 and 3 in this petition and Ram Sakat who is also no more, is being represented by his widow Petitioner No. 1 sons and daughterPetitioner Nos. 2 to 5.

The tenanted accommodation consisting of two khaprail shedded rooms, courtyard and Chabutra on ground floor in premises No. 130/48, Bagahi, Kanpur, was sought to be released by the landlord on the ground that it is required for his personal need and need of his sons and grand children.

The aforesaid release application was contested by the tenant petitioner on the ground that disputed portion under the tenancy of the opposite party was neither required by the landlord nor there is any element of bonafide need as there are a number of other properties of the landlord from which his need can be satisfied. The premises said to be in possession of the landlord are (i) Premises Nos. 130/48, Bagahi, Kanpur, (ii) Premises No. 130/47, Bagahi, Kanpur and (iii) Premises No. 64/95, Gadaria Mohal, Kanpur.

The stand of the tenant petitioner in the Court below was that landlord has deliberately suppressed the aforesaid properties in the release application filed by him under section 21 (1)(a) of the Act and if total accommodation available in his possession would have been mentioned, then his need would have satisfied and even release application would have been required on the ground of bonafide need.

That during pendency of the release application, the petitioner tenant had also moved applications for appointment of Advocate Commissioner which was allowed. The Commissioner Sri Om Prakash Gaur after inspecting the premises submitted a report dated 19.4.1991 paper No. 17 to the effect that landlord has come in possession of some portions in premises Nos. 130/48, 130/47, Bagahi, Kanpur and 64/95, Gadaria Mohal, Kanpur which have been vacated by some tenants and that these properties are situated in the neighbouring locality, hence the Prescribed Authority had rightly rejected the release application filed by the landlord.

The Prescribed Authority rejected the release application by order dated 22.5.1998. Its validity and correctness was challenged by the landlord in appeal No. 116 of 1998.

The Appellate Court after going through the record and judgment of the Trial Court, allowed the appeal by impugned order dated 9.6.2010 which has given cause to the tenant for filing the present writ petition.

The contentions of the Counsel for petitioner can now be summarized as under:

(a) The release application under section 21 (1)(a) of the Act was rejected by the Trial Court vide order dated 22.5.1998 which has been set aside by the Appellate Court without taking into consideration the Advocate Commissioner report, evidence led on behalf of the petitioner and the subsequent events.

(b) Had the need of the landlord been bona fide, he would not have demolished the accommodation vacated by tenant Triveni Srivastava and converted it for use of commercial purposes.

(c) The landlord has a number of accommodations from which his need would have been satisfied, and hence his need for the accommodation under tenancy of the petitioner, is not bona fide and that petitioner tenant would suffer greater comparative hardships if he has to vacate the accommodation in dispute.

On a pointed query made by the Court as to when tenantsRam Kumar, Ram Pal, Girdhari Lal, Ishwar Deen, Banshi Lal and Purshottam Das Srivastava of premises No. 130/47, Bagahi, Kanpur, had vacated the accommodation, Counsel for the petitioner has fairly stated that dates of their vacating the alleged accommodation is neither given in the writ petition nor was provided in the Courts below. Similarly, no date has been given as to when tenant Triveni Srivastava vacated his residential accommodation in premises No. 130/48, Bagahi, Kanpur which is said to have been dismantled and demolished and the land is being used by Mahesh, son of the landlord for commercial purpose for storing wheat bags.

No other point has been argued.

As regards the first point that the Appellate Court has set aside order of the Trial Court without considering Advocate Commissioner''s report paper No. 27 is concerned, it is without any basis and is incorrect, for the report has been considered by the Appellate Court and it has found that landlord has bona fide need of the accommodation in dispute. Relevant extract of the judgment in this regard is as under:

A perusal of above findings by the Lower Appellate Court shows that accommodation in House No. 64/95, Gaderia Mohal, consists of two rooms 12.1 ft. x 8.11 ft. and 15.2 ft. x 7.9 ft., an open courtyard, chabutara and a latrine bathroom in which family of Tapeshwar Prasad i.e. his son Satish Chandra, his sons, mother, brother, his wife with children and sister reside. The similar accommodation of the first floor of this house is said to be in possession of the landlord. Thus the Court has come to the conclusion that objection of the tenant that the landlord is in possession of a big house by which his need is satisfied is not correct for the reason that two rooms on the ground floor is occupied by large number of members of the family of his brother and two rooms and a kothri by the landlord on the first floor is inadequate for their residential purpose and his need is bona fide.

In respect of House No. 130/47, the Court has considered the pleadings, objections and evidence on record. It is an admitted fact that this house does not belong to the landlord and its owner is his uncle Bandideen and that the house is full of tenants; that as Sri Bandideen dies issueless, according to his will, it is joint property of the landlord, all his brothers, sisters, grandsons and granddaughters. It is stated that the only room available in the aforesaid house in which his uncle lived, though is used for prayers and other religious ceremonies, was offered to the tenant but he refused it. As regards accommodations becoming available due to vacating of the accommodation of one room each under tenancy of Ram Swarup, Ram Kumar Shukla and Rampal is concerned, the Commissioner found that the landlord in his occupation in this house has a room in North side.

The Court below has also considered the evidence on record of Smt. Ganga Devi, Savitri Devi and Shanker tendered by the tenant and has concluded that from paragraph No. 9 of the affidavit submitted in evidence, it is clear that premises No. 130/48, Bagahi, Kanpur is full of tenants and that a room is in possession of Maheshson of the landlord. The Appellate Court has further found that if assertions of the tenant are taken to be correct on their face value, even then accommodation with the landlord in the two houses is highly insufficient for his bona fide need of accommodating for the landlord himself, his wife, two sons, two daughterinlaw, five grand daughters and sons as well as for soninlaws who frequently visit him.

As regards premises No. 64/95, Gadaria Mohal, Kanpur is concerned, the landlord has only two rooms in which he and his wife are living and it also does not satisfy need of the landlord for his sons, daughterinlaws and grand children. Finding in this regard has been recorded by the Appellate Court thus:

It is thus apparent that the Trial Court has not only looked the bona fide requirement of the accommodation available with the landlord vizaviz, his bona fide need but has also considered the fact that son of the tenant is an Engineer in military and that his other sons are also engaged and settled in business; that tenant has not tried to search for accommodation since 1962 and even otherwise he could live with his son in the accommodation provided by his employer.

It appears from record that petitioner was permitted by the landlord to live in two khaprail shedded rooms as he wanted this accommodation for a short duration in order to construct his own house but he has not vacated it inspite of the fact that he assured the landlord in the year 1974 that he would vacate. He is occupying the accommodation on monthly rent of Rs. 2.50 p. and this appears to be the reason for neither searching for an alternative accommodation nor construing his own house by the tenant and vacating the accommodation on frivolous pleas.

It is evident that the prescribed authority had not appreciated the Advocate Commissioner report in its correct perspective and the Appellate Court has rightly come to the conclusion that need of the landlord cannot be satisfied by various accommodation with him as they are full of tenants and he still has genuine, pressing and bona fide need for his married sons and grand children.

Contention of the Counsel for petitioner that report of Advocate Commissioner has not been considered by the Appellate Court, has no force.

As regards the question of accommodation which was under the tenancy of Triveni Srivastava which is said to have been demolished or fallen down, the landlord has categorically taken a stand that he has not demolished it as it was a Khaprail construction which has fallen down and now is being used for the purpose of storing wheat bags by his son. Since this accommodation has fallen down, there is no accommodation in existence which can be considered for the purpose of residence by the landlord and it has already come in evidence that in other tenanted house, "Aata Chakki" is being run.

Taking into consideration the aforesaid facts, there is no scope for argument by the Counsel for petitioner that need of the landlord is not genuine and that Appellate Court has not considered these facts. From the judgment of the Trial Court and Appellate Court, it is apparent that Trial Court had misdirected itself in arriving at the conclusion that need of the landlord was not bona fide. The judgment and order passed by the Trial Court, in the facts and circumstances of the case, has rightly been set aside by the Lower Appellate Court.

For all the reasons stated above, in the opinion of this Court, the order impugned does not suffer from any illegality or infirmity. The writ petition is accordingly dismissed with cost of Rs. 10,000 which shall be payable to the landlord respondent towards litigation expenses.