HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 7 Case :- WRIT - A No. - 7039 of 1999 Petitioner :- Smt. Raj Rani Respondent :- V A.D.J. & Others Petitioner Counsel :- K.S. Singh,A.K. Malviya Respondent Counsel :- C.S.C.,D.S. Shukla Hon'ble Shashi Kant Gupta,J.
1. By means of the present writ petition the petitioner has approached this Court for issuance of a writ of certiorari quashing the orders dated 12.11.1998 (Annexure No. 8) passed by the Vth Additional District Judge, Agra in M.A. Suit No. 494/96 confirming the order dated 13.11.1996 passed by the Prescribed Authority/ III Addl. Civil Judge (S.D), Agra in P.A. Case No. 186 of 1994 whereby the release application of the landlady filed under section 21 (1)(a) of the U.P. Act NO. 13 of 1972 was dismissed.
2. The background facts, in a nutshell, essentially, are as follows follows:
3. An application under section 21 (1)(a) of U.P. Act NO. 13 of 1972 (hereinafter referred to as the 'Act') was filed by the plaintiff landlady against the defendant respondents on the ground of bonafide need alleging therein that the premises in question, wherein a post office is being run by the Central Government, is required by her to establish her two unemployed sons. The rate of rent of the disputed premises is Rs. 95/- per month. The said application was contested by the defendant respondents by filing written statement alleging that the need of the landlady is neither bonafide nor genuine and the respondents will suffer greater hardship in case they are evicted from the disputed premises.
4. The release application of the landlady was dismissed by the prescribed authority on 13.11.1996. The prescribed authority while dismissing the release application held that though the need of the landlady was bonafide and genuine but the comparative hardship was in favour of the tenant.
5. Feeling aggrieved with the order of the Prescribed Authority dated 13.11.1996, an appeal was filed by the petitioner, which too was dismissed by the impugned order dated 12.11.1998. However, the appellate court held the need of the landlady to be bonafide and genuine.
6. Being aggrieved and dissatisfied with the said orders of the courts below, the petitioner has filed the present writ petition.
7. Learned counsel for the petitioner submitted that the findings recorded by the courts below regarding comparative hardship is illegal, arbitrary and is based on complete misreading of the case and misconception of legal position relevant to the matter and has not considered the evidence on record in right perspective. He further submits that the plaintiff land lady was in urgent need of the accommodation in question for the purpose of engaging her two sons in the business in the said accommodation. He further submits that the defendant respondent was not in the need of the disputed accommodation as already there are post offices at Pipal Mandi Road, Agra and one more city post office at Johri Bazar , Agra which are very near to the present post office and, thus, the defendant respondents will face absolutely no hardship in vacating the accommodation in question which is simply a hall. He further submits that since the post office which is being run in the premises in question is under the authority of the Central Government , obviously, there shall be no difficulty to the postal authorities to take any accommodation on rent and the plea of the defendant respondents that they have already approached the District Magistrate/Rent Control & Eviction Officer and have published advertisement in a news paper, is merely an eye wash just to, somehow, show their bonafide and in fact, they did not make any real efforts to find another accommodation despite the fact that the application for release was moved in the year 1994. He further submits that since the both the sons of the petitioner have left their education and are sitting idle without any job, it is very urgently required to engage them in the business and on account of not vacating the said accommodation by the defendant respondents, they are facing great financial hardship in the present economic set up. He further submitted that both the courts below have held the need of the landlady to be bonafide and genuine but illegally held the comparative hardship to be more pressing in favour of the tenant in comparison to the petitioner.
8. Per contra,learned counsel for the respondents submitted that during the pendency of the release application a lot of efforts were made to search a suitable alternative accommodation for shifting the post office to another place nearby the present post office, and for the said purpose, besides approaching the rent control authority, advertisement was also made but the respondents failed to find any such accommodation. He further submitted that since the present post office is situated at a very densely populated area of the city and the work load of the post office is increasing day by day and no alternative accommodation is available in the vicinity of the present post office, it is essential to run the said post office in the premises in question in the interest of the general public also. He further submits that there is no other post office available nearby the said post office and the other post offices which are alleged to be situated in Jauhari Bazar and Pipal Mandi Road are quite far off from the present post office.
9. Heard the learned counsel for the petitioner and Mr. D.S. Shukla, learned counsel for the respondents no. 3 to 7 and perused the record.
10. A bare perusal of the release application reveals that the building in dispute consists of five shops on the ground floor which are in the occupation of the tenants including the defendant respondents . The upper story is in the occupation of the petitioner wherein she is residing along with her family. The said application was filed by the petitioner in the year 1994 on the ground that she has two sons namely Shiv Ratan and Kaushal Kishore who have attained the age of majority and are unemployed and they want to run the business of general merchandise in the premises in dispute for engaging them, as such they are in the urgent need of the disputed premises .
11. It may also be noted that that the release application was filed in the year 1994 and it was only when the affidavit was filed in November, 1995 by the landlady alleging that the tenant has not made any effort to search out any alternative accommodation, the tenant sent a letter to the District Magistrate/ Rent Control & Eviction Officer to make arrangement for allotment of some suitable accommodation and also the advertisement was published in news paper on 17.12.1997 inviting offer from the willing landlords to be submitted by 2nd Jan, 1996. Mere issuance of letter and publishing advertisement in the news paper in December,1995 appears to be a mere formality to fill up the lacuna of the case and create evidence in his favour. There is nothing on record to show that except sending letter to the District Magistrate/Rent Control & Eviction Officer and publication in news paper in December, 1995, the tenant had made any sincere effort to find out any alternative accommodation in spite of the fact that the release application was filed in the year 1994 and the matter is pending since last 17 years. Even during pendecy of the writ petition from 1999 the tenant had not made any effort to find any alternative accommodation. The tenant can not be permitted to occupy the premises in dispute in perpetuity on the sole ground that eviction would cause inconvenience to the general public.
12. The courts below has also questioned the wisdom of the plaintiff petitioner for filing the application under section 21(1)(a) of the said Act against the defendant respondents alone without seeking the viction of other sitting tenants. Such an approach of the courts below in my view is fully unwarranted and uncalled for. This court in Shiv Murti Sharma Vs. A.D.J. ARC 1991(1) 449 has held that the tenant can not dictate as to how he (landlord) will adjust himself without getting possession of the tenanted premises . In the case of Regvendra Kumar Vs. Firm Prem Machiner and Company ( 200)1 SCC 679 , the Apex Court has held that the landlord is the best judge of his own requirement for residential or commercial purpose and has complete freedom in the matter. In this authority the Apex Court has relied upon its earlier judgement in Prativa Devi Vs. T.V. Krishnan : (1996)4 SCC 353.
13. The Apex Court in the case of Bega Begum and others Vs. Abdul Ahad Kha, 1979 AIR SC 272: 1986 SCFBRC 346 has held that in every case where an order of eviction is passed , the tenant will come on the street. The fact that all tenants will come on street , if eviction is ordered, is not at all relevant for consideration of a comparative hardship of the respective parties.
14. The Apex Court in the case of R. K. Barunwal Vs. Ram Lakhan : SCW 3250 has held that even if the landlord lost his release application from both the courts below still if, in the opinion of the High Court, impugned orders are erroneous in law, then, all efforts must be made to decide the writ petition finally instead of remanding the matter. The same view has been taken by Apex Court in G.C. Kappor Vs. Nand Kumar Bhasin and others : AIR 2002SC, 200 wherein the Apex Court allowed the release application of the landlord which had been dismissed by the prescribed authority /appellate court as well as the High Court.
15. The courts below have recorded concurrent findings of facts that though the need set up by the landlady is bonafide and genuine, the comparative hardship tilts in favour of the tenant. The court below while recording the finding regarding comparative hardship in favour of the tenant completely brushed aside the hardship of the sons of the landlady who have attained the age of majority and have left their education and are sitting idle and have been waiting for establishing business for earning their livelihood, whereas on the other hand, the tenant, which is an office of the Central Government , obviously can very easily afford to take any accommodation on rent in the city of Agra. While comparing the hardship of the parties, the status of the parties is also to be kept in mind. The defendant respondents, who are the authorities of the Central Government, have all resources at their command and have not adduced any cogent evidence to show that they will suffer greater hardship if they are evicted and no real, honest and sincere effort was made by them to find any alternative accommodation and the cause shown by them for not being able to find any suitable accommodation for the said purpose does not appear to be sufficient. Thus, the courts below were swayed by illegal and irrelevant consideration and have not considered the parameters relating to comparative hardship in proper prospective.
16. Considering the material available on record, this court is of the considered opinion that the need of the landlady is bonafide and genuine and the comparative hardship is more pressing in her favour. Thus, the findings recorded by the court below to the effect that comparative hardship tilts in favour of the tenant being erroneous in law deserves to be reversed .
17. In view of what has been discussed above, as a result, the writ petition succeeds and is allowed. The findings recorded by the courts below regarding comparative hardship in favour of the defendant respondents are reversed and the release application of the petitioner, referred to herein above, stands allowed. The impugned orders dated 12.11.1998 (Annexure No. 8) passed by the Vth Additional District Judge, Agra in M.A. Suit No. 494/96 and also the order dated 13.11.1996 passed by the Prescribed Authority/ III Addl. Civil Judge (C.D), Agra in P.A. Case No. 186 of 1994 are modified to that extent.
18. Lastly, learned counsel for the defendant respondents urged that at least six months' time may be granted to them for vacating the said shop so that it may not affect their official working adversely and general public may not feel inconvenience. The learned counsel for the petitioner did not raise any objection to it.
19. As urged by the learned counsel for the defendant respondents , six months' time is granted to the defendant respondents to vacate the premises in dispute provided they give their undertaking in the form of an affidavit before the prescribed authority within one month from today specifically stating therein that they will handover the peaceful possession of the said accommodation to the landlady petitioner without inducting any third person within a period of six months from today and will pay the entire arrears of rent including the current rent at the rate payable upto the date of delivery of the possession, as indicated herein above.
20. In the event of default of any of the aforesaid conditions, the landlady petitioner will be at liberty to proceed to evict the defendant respondents in accordance with law.
Date: 13.7.2011 MLK