Sheetal Prasad vs ADDL.District Judge, Meerut and others

S. P. Mehrotra, J.

This writ petition has been filed by the petitioner under Article 226 of the Constitution of India, interalia, praying for quashing the order dated 22.8.1998 ( Annexure no. 3 to the writ petition) and the judgment and order dated 13.12.2002 ( Annexure no. 5 to the writ petition).

The dispute relates to an accommodation on the ground floor of House no. 184 T/16 situated at Abulane, Merrut Cantt, Meerut. The said accommodation has hereinafter been referred to as the " disputed accommodation".

From the allegations made in the writ petition, it appears that one Banwari Lal ( respondent no.3 herein), Late Kamal ( predecessor in interest of respondent nos.4 to 10 herein ) and Mohan ( respondent no.11 herein) (who are collectively referred to as the landlords) filed a release application under Section 21(1)(a) of the U.P. Act No. XIII of 1972 ( in short " the Act") against the petitioner for release of the disputed accommodation as well as against one Chander alias Chandra Singh (respondent no. 12 herein ) for release of an accommodation on the first floor of the said House no. 184T/16, Abulane, Meerut Cantt, Meerut.

It was, interalia, alleged in the said release application that only three rooms were available to the landlords in House no. 115A, Sadar, Naya Bazar, Meerut Cantt where the landlords were presently residing ; and that there were 8 members in the family of the said Kamal and three members in the family of the said Mohan ; and that the disputed accommodation was bonafide required for the need of the family of the said Kamal .

The said release application was registered as P.A. case no. 99 of 1992 . Copy of the said release application has been filed as Annexure no. 1 to the writ petition.

It further appears that the petitioner contested the said release case in respect of the disputed accommodation, but the release case proceeded exparte against the said Chander alias Chandra Singh ( respondent no. 12 herein) in respect of the first floor accommodation in the said house no. 184T/16, Abulane, Meerut Cantt, Meerut.

Evidence was led by both the landlords as well as the petitioner. Learned Additional Judge, Small Causes Court/Prescribed Authority, Meerut, by the judgment and order dated 22.8.1998 allowed the said release application in respect of the disputed accommodation under the tenancy of the petitioner as well as the first floor accommodation under the tenancy of the said Chander alias Chandra Singh ( respondent no. 12 herein) . It was, interalia, held in the said judgment and order dated 22.8.1998 that it was established on record that there were 11 members in the family of the landlords while only three rooms were available for their residence; and that the need for the family of the said Kamal was bonafide; and that the comparative hardship was also in favour of the landlords .

Thereupon, the petitioner filed an appeal under Section 22 of the Act which was registered as P.A. Appeal no. 340 of 1998.

By the judgment and order dated 13.12. 2002, the learned Additional District Judge, Court no.4, Meerut dismissed the said P.A. Appeal No. 340 of 1998.

Thereafter, the petitioner has filed the present Writ Petition seeking the reliefs mentioned above.

I have heard the learned counsel for the petitioner at length.

Learned counsel for the petitioner submits that even though the first floor accommodation in the said House no. 184T/16, Abulane, Meerut Cantt, Meerut in the tenancy of the said Chander alias Chandra Singh( Respondent no.12 herein) had already been released in favour of the landlords, the landlords did not take possession of the said first floor accommodation on account of the present dispute regarding the disputed accommodation . In view of the said fact, it is evident that the need of the landlords was not bonafide.

Learned counsel for the petitioner has placed reliance on a decision of this Court in Krishna Behari and another Vs. District Judge, Meerut and others, 1985(1) ARC 57. Learned counsel for the petitioner has also referred to Ground no. 6 in the Memorandum of Appeal of P.A. Appeal no. 340 of 1998.

Having considered the submissions made by the learned counsel for the petitioner, I find myself unable to accept the same.

A perusal of the release application and various affidavits filed in the release case shows that the release application was filed by the landlords for the bonafide need of the family of the said Kamal in respect of the disputed accommodation in the tenancy of the petitioner as well as the first floor accommodation in the tenancy of the said Chander alias Chandra Singh ( Respondent no. 12 herein ) in the said House no. 184T/16, Abulane, Meerut Cantt, Meerut . The controversy in regard to the disputed accommodation was still pending before the Appellate Authority in the said P.A. Appeal no. 340 of 1998. The possession of the disputed accommodation could not obviously be obtained by the landlords, and as such, there was no occasion for the landlords to get the first floor accommodation in the tenancy the said Chander alias Chandra Singh ( Respondent no. 12 herein ) vacated.

In Krishna Behari case ( Supra ), a learned Single Judge of this Court laid down as follows ( paragraph no. 8.9 and 10 of the said ARC):

"8. Challenging the finding of bonafide requirement, two points were raised by the counsel for the tenant petitioners. One of the points was that one Ram Kumar, who is the real brother of the landlord Laxmi Chand, was occupying a portion of the house which could be utilized by the landlord to satisfy his need, and the application for release of the shop against the petitioner was malafide. Admittedly, Ram Kumar is living in a portion for the last several years. His nature of possession may be that of a licensee and thus juridical possession is that of the landlord Laxmi Chand, but it is not possible to say that the said portion is available and that the landlord can feed his need by getting Ram Kumar evicted .Ram Kumar is in possession since before the filing of the application under Section 21 of the Act against the tenant Babu Lal. He has not been installed or inducted into possession of the portion in his occupation for the purpose of creating the need of the shop in occupation of the petitioners. The learned District Judge,, after considering the various aspects relating to his dispossession, both legal and factual, found that Ram Kumar''s possession in the premises was not of a nature which could be a ground to reject the application of the landlord. If a premises is available to the landlord for his occupation, the application for release may be rejected. But the present was not a case of that type. This controversy was considered by the Supreme Court in Phiroze Bamanji Desai Vs. Chandrakant M. Patel, AIR 1974 SC 1059. The Supreme Court held :

" Now it is true that when premises are given on leave and licence, the licensor continues from a juridical point of view, to be in possession of the premises and the licensee is merely given occupation and, therefore, strictly speaking the High Court was right in observing that the Truth Bungalow which was given on leave and license to Dr. Bharucha was in the possession of the appellant. But for the purpose of determining whether the requirement of the appellant for the ground floor premises was reasonable and bonafide, what is necessary to be considered is not whether the appellant was juridically in possession of the Truth Bungalow . but whether the Truth Bungalow was available to the appellant for occupation, so that he could not be said to need the ground floor premises".

In this case, the Supreme Court further said :

" Therefore where it can be found that the accommodation (Emphasis mine) in possession of some tenants or licensees could be available to the landlord without any difficulty and yet he does not obtain occupation of that accommodation and move under Section 21 against another tenant, the conduct can legitimately be taken to throw a doubt on his plea of bonafide requirement of more space at any rate unless convincing explanation is offered ".

It is not possible to hold in the back ground of facts of the present case and the law applicable that the premises in occupation for Ram Kumar was available to the landlord and that instead of filing the application the landlord should have dispossessed him and should not have filed the application for release under Section 21 against the tenant Babu Lal, whose heirs the present petitioners are".

( Emphasis supplied)

In view of this decision, it is evident that if a premises is available to the landlord for his occupation, the said fact will be a relevant factor for deciding the bonafide need. However, the said decision dealt with the situation where the question of availability of alternative accommodation to the landlord at the time of filing of the release application was being considered. In the present case, the facts are entirely different. The disputed accommodation as well as the first floor accommodation were in the tenancy of the tenants. As a result of the judgment and order dated 22.8.1998, the disputed accommodation as well as the first floor accommodation of the said House no. 184T/16, Abulane, Meerut Cantt, Meerut stood released in favour of the landlords . The said judgement and order dated 22.8.1998 was challenged by the petitioner in P.A. Appeal No. 340 of 1998 . In the circumstances, the landlords did not proceed to take the possession of the first floor accommodation of the said House no. 184T/16, Abulane, Meerut Cantt, Meerut. Thus, the said decision relied upon by the learned counsel for the petitioner is not applicable to the facts of the present case.

Besides, in the said decision, it was held that no alternative accommodation was available to the landlord.

Learned counsel for the petitioner then tries to assail the findings recorded by the authorities below on the question of bonafide need and comparative hardship.

I have considered the submissions made by the learned counsel for the petitioner, and I find myself unable to accept the same.

It is well settled that this Court in the exercise of writ jurisdiction under Article 226 of the Constitution of India cannot sit in appeal over the findings of fact recorded by the authorities below on consideration of the material on record . It is well established that this Court can not normally interfere with the findings of facts on the questions of bonafide need and comparative hardship recorded by the authorities below under Article 226 of the Constitution of India unless such findings are shown to be illegal or perverse. No illegality or perversity has been shown in the said findings of fact recorded by the authorities below on the questions of bonafide need and comparative hardship. No interference, therefore, is called for with the impugned judgment and order dated 22.8.1998 ( Annexure no. 3 to the writ petition) and the judgment and order dated 13.12.2002 ( Annexure no. 5 to the writ petition).

In view of the aforesaid discussion, I am of the opinion that this writ petition lacks merits, and the same is liable to be dismissed. The Writ Petition is accordingly dismissed.

Learned counsel for the petitioner then submits that some reasonable time be granted to the petitioner for vacating the disputed accommodation.

Having considered the facts and circumstances of the case, and the submissions made by the learned counsel for the petitioner, it is directed that the petitioner will not be evicted from the disputed accommodation till 30.6.2003 provided the petitioner gives an undertaking on his personal affidavit before the Prescribed Authority within six weeks from today incorporating the following conditions:

1.The petitioner will vacate the disputed accommodation on or before 30.6.2003 and will handover peaceful vacant possession of the same to the landlords ( respondent nos.3 to 11).

The petitioner will continue to pay rent in respect of the disputed accommodation till the date of vacating the same.