Shanti Lal vs District Judge,Gorakhpur & Ors.

S.U. Khan, J.—This is landlord''s writ petition. It was earlier allowed by me on 1252005. On the said date no one has appeared on behalf of the tenantrespondent. Thereafter, restoration application was filed which was allowed on 2122005.

First half of third paragraph of my earlier judgment dated 12 52005 which contains the relevant facts is quoted below:

This writ petition has been filed by the landlord since deceased and survived by legal representative. Landlordpetitioner Shanti Lal filed release application on the ground of bona fide need under Section 21 of U.P Act No. 13/72 against Ram Pyare Lal respondent No. 2 since deceased and survived by legal representative. Accommodation in dispute is a house situate in Gorakhpur. In release application it was stated that partition had taken place in between landlord and other cosharers which was also recognized through the decree passed in a suit as a result of which Shanti Lal had become exclusive owner/landlord of the house in dispute. It was further pleaded that the landlord was residing in his Sasural (house of wife), which was 6 km. from Khalailabad and that the landlord and his wife both were heart patients and intended to reside at Gorakhpur for the purpose of treatment and also for the reason that their two daughters who were married in Gorakhpur coulmake care of them. It was further stated that for want of any accommodation landlord was residing at Gorakhpur in one room kothari, which had been provided by his brother. The Trial Court/Prescribed Authority, Gorakhpur before whom the case was registered as PA. Case No. 14/90 held that the need of the landlord was bona fide. In respect of comparative lordship it was held that tenant had an ancestral house in Khairdih Tehsil Khajni and tenant and his wife had retired from job. Prescribed Authority allowed the release application on 3131992. Against the said judgment and order tenant filed appeal under Section 22 of the Act being Misc. Appeal No. 104/92. District Judge, Gorakhpur by judgment and order dated 18111992 set aside the finding of the Prescribed Authority and remanded the matter for decision afresh. The said order has been challenged by the landlord on the ground that there was no reason for the Appellate Court to remand the matter.

The Appellate Court held that original landlord was residing comfortably at Sasural in Khalilabad. Appellate Court also held that whenever original landlord came to Gorakhpur he stayed with his brother hence he had sufficient accommodation at his disposal. Appellate Court further held that Nursing Bahadur brother of the original landlord has not initiated any proceeding for eviction against him. In my opinion each and every reason given by the Appellate Court is erroneous in law. Residence as licensee is not sufficient to reject the release application on the ground of bona fide need as held by the Supreme Court in M.E. Kshirsagar v. M/s. Traders and Agencies, AIR 1997 SC 59. It is preposterous to suggest that if a person is residing as a licensee then he cannot initiate eviction proceedings on the ground of bona fide need unless his licensor (real brother in the instant case) initiates eviction proceedings against him.

Residence in Sasural is also as licensee. Moreover, it is not respectable for the landlord to reside with the parents and brothers of his wife at his sasural. Landlord had also asserted that he and his wife were heart patients and they visited Gorakhpur regularly for their treatment as Khalilabad the ancestral place of his wife was a town and was about six kilometers away from Gorakhpur. Landlord further pleaded that his two daughters were residing at Gorakhpur along with their husbands and they could help him and his wife in case house in dispute was released and they started residing therein. In the counter affidavit it has been admitted that one of the daughters of landlord is residing at Gorakhpur with her husband.

Learned Counsel for the tenant has vehemently argued that landlord has died and his widow is quite old hence she is not expected to shift at Gorakhpur as she is residing at her parent''s house at Khalilabad. In this regard learned Counsel has placed reliance upon an authority of the Supreme Court in K.N. Agarwal v. Dhanraji Devi, 2004 (57) ALR 419 (SC) : 2004 (23) AIC 31 (SC). In the said authority release application was filed for commercial need of the landlord who died thereafter. The Supreme Court therefore held that the need for which release application was allowed had vanished and unless the heirs of the landlord proved their need, release order could not be sustained. In the instant case landlord had pleaded need for himself and his wife. Wife is still alive. The older the person becomes the more he or she requires medical facilities. At least one of the daughters of the widow of the original landlord who has now been substituted at the place of the landlord is residing at Gorakhpur along with her husband. The widow of the original landlord can therefore very well reside at Gorakhpur in the house in dispute under constant care and attention of the daughter and receive proper medical treatment. Even after the death of the husband a lady is fully justified to reside in the house loft behind by her husband than the house of her parents particularly in Indian society.

Just as landlord has died similarly tenant has also died. Tenant was himself having his ancestral house in Khairdih Tahsil Khajni. Tenant and his wife had retired when release application was filed. The tenant had not asserted that he required the house for his sons (original tenant respondent No. 2 Ram Pyare Lal has died during pendency of the writ petition and has been substituted by four sons and his widow).

House in dispute consists of three rooms and a Dalan along with other amenities and rent is Rs. 50 per month, which is virtually as well as actually no rent. Three of the sons of tenant are residing in other accommodations.

Accordingly, I am of the view that Appellate Court committed an error of law in setting aside the findings of bona fide need and comparative hardship recorded by the Trial Court in favour of the landlord and remanding the matter. Matter was remanded to consider the accommodation available to the landlord. All the accommodation available to the landlord was in his capacity as licensee. Such an accommodation is wholly irrelevant for determining the bona fide need.

Accordingly, writ petition is allowed. Judgment and order passed by the Appellate Court is set aside. Judgment and order passed by the Trial Court is restored.

Tenantsrespondents are granted six months'' time to vacate provided that:

(1) with in one month from today they file an undertaking before the prescribed authority to the effect that on or before the expiry of period of six months they will willingly vacate and handover possession of the property in dispute to the landlord petitioner.

(2) For this period of six months which has been granted to the respondents to vacate they are required to pay Rs. 6,000 (at the rate of Rs. 1,000 per month) as damages for use and occupation. This amount shall also be deposited with in one month before the prescribed authority and shall immediately be paid to the landlordpetitioner.

It is further directed that in case undertaking is not filed or amount of Rs. 6,000 is not deposited with in one month then tenantsrespondents shall be liable to pay damages at the rate of Rs. 2,000 per month since after one month till the date of actual vacation.

Similarly, if after filing the aforesaid undertaking and depositing Rs. 6,000 the property in dispute is not vacated on the expiry of six months then damages for use and occupation shall be payable at the rate of Rs. 2.000 per month since after six months till actual vacation.