HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Reserved Court No. - 25 Case :- RENT CONTROL No. - 153 of 2013 Petitioner :- Sardar Kuldeep Singh And Another Respondent :- Learned Additional Session Judge Court No.4 Sultanpur & Ors. Counsel for Petitioner :- Madan Mohan Pandey, Ravindra Pratap Singh Counsel for Respondent :- Adnan Ahmad, Gaurav Mehrotra Hon'ble Aditya Nath Mittal,J.
Heard learned counsel for the petitioners, learned counsel appearing for the opposite party no.3 and perused the record.
This writ petition under Article 226 of the Constitution of India has been filed with the prayer to issue a writ of certiorari quashing the judgement and order dated 19.07.2013 passed by the learned Additional Sessions Judge, Sultanpur as well as the order and decree dated 30.11.2012 passed by the learned Additional Chief Judicial Magistrate/Prescribed Authority, District Sultanpur.
The brief facts of the case are that the opposite party no.3, who is the landlord, filed an application for release under section 21(1) of the U.P. Act No.13 of 1972 on the basis of personal need for the treatment of his father; his daughter; as well as on the ground of personal requirement for establishing his Lawyers Chamber. The petitioners-tenant controverted the facts of the plaint stating that the petitioners have no other house for residential purposes and the landlord has no bonafide need for residential/official purposes.
After considering the evidence of both the parties, the learned Prescribed Authority came to the conclusion that there was relationship of landlord and tenancy between the parties and the landlord has been able to prove his bonafide need. The learned Prescribed Authority also came to the conclusion that by rejecting the application, the landlord shall suffer the comparative hardships and accordingly, allowed the application vide judgement and order dated 30.11.2012. The said order dated 30.11.2012 was challenged by way of Rent Appeal no.01 of 2013 before the learned Additional District Judge, Sultanpur who after considering the respective submissions as well as the evidence on record, came to the conclusion that the appellant-tenant has not made any efforts since 1996 to search for alternative accommodation, while the landlord, who was the Advocate of Commercial Tax and Income Tax, requires the said premises for establishing his Chamber. Accordingly, the appeal was dismissed by the judgement and order dated 19.07.2013. Being aggrieved, the present writ petition has been filed.
With this background, the learned counsel for the petitioners has submitted that the findings of both the courts below are perverse and the courts below have not taken into consideration the evidence on record. It has also been submitted that during the pendency of the proceedings, the need of the respondent no.3 has been satisfied because he has purchased a new building, where he can established his Chamber. Therefore, the need of the respondent is not subsisting. No counter affidavit to the supplementary affidavit has been filed. Therefore, the averments made in the supplementary affidavit cannot be disbelieved. It has also been submitted that the respondent no. 3 has purchased a new building where he has established his Chamber.
In support of his arguments, learned counsel for the petitioners has relied upon (2010) AIR SCW 3605 (Dinesh Kumar vs. Yusuf Ali) in which Hon'ble the Apex Court has held that "the need of the landlord is to be examined as per the circumstances prevailing on the date of institution of the case." Learned counsel has further relied upon [2014 (32) LCD 1054; Dr. Krishna Devi Verma vs. VIth Additional District Judge, Gonda] in which the Hon'ble Single Judge of this Court has held that "a less suitable accommodation cannot be a ground to reject the release application for more suitable accommodation but not vice viersa. Supreme Court has held in Dinesh Kuamr vs. Yusuf Ali; AIR 2010 SC 2679 that the landlord is the best judge for satisfaction of his need but it cannot be used as only a pretext to evict the tenant."
Learned counsel for the petitioners has further relied upon [(2008) 3 ARC 198; R. S. Gahlaut vs. VIIth Additional District Judge, Meerut and Another] in which the Hon'ble Single Judge of this Court has held that "while granting relief against eviction to the tenant in respect of building covered by Rent Control Act or while maintaining the said relief already granted by the courts below, the writ court is empowered to enhance the rent to a reasonable extent."
On the other hand, learned counsel for the opposite party no.3 has submitted that in view of a recent judgement of Hon'ble the Apex Court reported in (2015) 0 Supreme (SC) 158 [Radhey Shyam vs. Chhabi Nath] the writ petition under Article 226 of the Constitution of India is not maintainable. It has also been submitted that no illegality or perversity has been shown in the decisions of both the courts below. It has also been submitted that the need of the landlord is to be seen on the date of application and the subsequent developments cannot be considered. It has also been submitted that in the case of Radhey Shyam (supra) the Hon'ble Apex Court has held as under:
"Thus, we are of the view that judicial orders of civil courts are not amenable to a writ of certiorari under Article 226. We are also in agreement with the view of the referring Bench that a writ of mandamus does not lie against a private person not discharging any public duty. Scope of Article 227 is different from Article 226."
Learned counsel for the opposite party no.3 has also relied upon [2013 (31) LCD 1131; Mohammad Azam and Others vs. District Judge, Barabanki and Others] in which Hon'ble the Single Judge of this Court has held that it is settled legal position of law that the landlord is the best judge of his requirement for residential or business purposes and he has got complete freedom in the matter. This judgement has been passed relying upon the judgement of Hon'ble the Apex Court in the case of Gaya Prasad vs. Praddep Srivastava; AIR 2001 SC 803 in which it has been held that the need of the landlord is to be seen on the date of application for release.
Learned counsel for the opposite party no.3 has further relied upon [2006 (24) LCD 843; Smt. Savitri Devi vs. 10th Additional District Judge, Moradabad and others] in which Hon'ble the Single Judge of this Court has held that :
"In Para 12 of its judgment, appellate court thoroughly examined the extent of accommodation and dimensions of different rooms in the flats prepared by development authorities and held that by that standard in the area of about 100 square meters already available to the landlady, a very good house could very well be constructed. The appellate court was utterly wrong in its approach. The Supreme Court in Sarla Ahuja Vs. U.I. Insurance Company AIR 1999 SC 100 and S.N. Kapoor Vs. B.L.Khatri 2002(1) SCC 329 has held that tenant can not dictate the landlord as to how else he can squeeze his family in small portion and satisfy his need without disturbing him (tenant). It has also been held in the later authority that court can not impose its wisdom and suggest the means through which landlady can satisfy his need without disturbing the possession of the tenant.
From the above it is quite clear that availability of quite suitable alternative accommodation to the tenant and almost total disuse of the tenanted accommodation by the tenant is not only decisive of comparative hardship but is also relevant for considering the bonafide need of the landlord. In such scenario, bonafide need of the landlord is also to be construed more liberally. It is quite possible that in a particular case, need of the landlord, if the tenant is actually using the building in dispute and has got no other accommodation available to him, may just fall short of, however the said need may be considered to be sufficient for allowing the application of release under section 21 of the Act in case tenant is having another suitable accommodation and is not using the accommodation in dispute for any substantial purpose."
Learned counsel for the respondent no.3 has further relied upon [2007 (68) ALR 287; Mohd. Sohail vs. Additional District Judge-10, Lucknow and another] in which Hon'ble the Single Judge has relied upon a decision of Hon'ble the Apex Court in the case reported in 2001 (42) ALR 685 (SC); Gaya Prasad vs. Pradeep Shrivastava wherein it has been held as under :
"We have no doubt that the crucial date for deciding as to the bona fides of the requirement of the landlord is the date of his application for eviction. The antecedent days may perhaps have utility for him to reach the said crucial date of consideration. If every subsequent development during the post petition period is to be taken into account for judging the bona fides of the requirement pleaded by the landlord there would perhaps be no end so long as the unfortunate situation in our litigative slow process system subsists. During 23 years after the landlord moved for eviction on the ground that his son needed the building, neither the landlord nor his son is expected to remain idle without doing any work, lest, joining any new assignment or starting any new work would be at the peril of forfeiting his requirement to occupy the building. It is a stark reality that the longer is the life of the litigation the more would be the number of developments sprouting up during the long interregnum. If a young entrepreneur decides to launch a new enterprise and on that ground he or his father seeks eviction of a tenant from the building, the proposed enterprise would not get faded out by subsequent developments during the traditional lengthy longevity of the litigation. His need may get dusted, patina might stick on its surface, nonetheless the need would remain intact. All that is needed is to erase the patina and see the gloss. It is pernicious, and we may say, unjust to shut the door before an applicant just on the eve of his reaching the finale, after passing through all the previous levels of the litigation, merely on the ground that certain developments occurred pendente lite, because the opposite party succeeded in prolonging the matter for such unduly long period."
Reliance has also been placed on [2007 (2) ARC 1; Rishi Kumar Govil vs. Maqsoodan and others] in which Hon'ble the Apex Court has held as under :
"In Ragavendra Kumar v. Firm Prem Machinary and Co., AIR (2000) SC 534 it was held that it is the choice of the landlord to choose the place for the business which is most suitable for him. He has complete freedom in the matter. In Gaya Prasad v. Pradeep Shrivastava, AIR (2001) SC 803 it was held that the need of the landlord is to be seen on the date of application for release. In Prativa Devi (Smt.) v. T.V. Krishnan, [1996] 5 SCC 353 it was held that the landlord is the best Judge of his requirement and Courts have no concern to dictate the landlord as to how and in what manner he should live."
Learned counsel for the respondent no.3 has also placed reliance on [AIR (2001) Supreme Court 803; Gaya Prasad vs. Pradeep Srivastava] in which Hon'ble the Apex Court has held that "crucial date for deciding bonafides of the need is date of application and the subsequent developments occurred pedente lite can be taken into account only when need of landlord is completely eclipsed by such subsequent events."
I have given a thoughtful considerations to the law relied upon by both the parties. It is settled position of law that the need of the landlord has to be examined on the date of application but if by subsequent events, the need has been totally eclipsed, then subsequent event may be taken into consideration. It is also settled position of law that the landlord is the best judge to choose the place of business, which is most suitable to him and he has complete freedom in the matter. It is also settled position of law that the landlord is the best judge of his requirement and courts have no concern to dictate the landlord as to how and in what manner he should live.
As far as the subsequent events are concerned, the petitioners have filed a supplementary affidavit dated 27.04.2015 in which he has stated that the opposite party no.3 has purchased and constructed a new house in a very prime place of city and also established his Chamber in the same house, therefore, now he has no bonafide need. Along with the supplementary affidavit, some photographs have been filed.
From the perusal of the supplementary affidavit as well as the photographs annexed thereto, no conclusion can be drawn that which of the house or building has been purchased by the opposite party no.3 recently and from the photographs, it can also not be concluded that the opposite party no.3 has established his Chamber in the newly purchased house.
The application for release was moved on the ground that the daughter of the opposite party no.3 is suffering from polio and his father is the patient of heart. The tenant has a big house of five-six rooms near the tenanted house in which he can reside comfortably. The landlord also took the ground that he needs the disputed building for establishing his Chamber.
During the proceedings before the Prescribed Authority, the petitioner has admitted that his father has purchased a land in Payagipur, which is surrounded by boundary wall and in which two rooms have been constructed but that land has suffered from water-logging. It was also stated that they are three brothers but due to the dispute, it has not been partitioned.
The relationship of the landlord and the tenant was admitted by both the parties. The learned Prescribed Authority has considered the bonafide need as well as the comparative hardships in detail. It is relevant to mention that during the pendency of the application, father and the disabled daughter of the landlord had died but the landlord contested the case on the ground that he has also mentioned in the application that the said portion is required for establishing his Chamber. It is also relevant to mention that the application under section 21 of the U.P. Act No.13 of 1972 was filed in the year 1996, which was decided after a gap of almost sixteen years. Learned court below has also considered the oral as well as documentary evidence regarding the ownership of the petitioner no.1 and has come to the conclusion that as per the Intkhab Register; Visiting Card; and Voter's List; as well as the Card of Marriage, the petitioner was having alternate accommodation. It is also settled position of law that the landlord is the best judge of his requirement and the tenant has no locus to dictate to the landlord that how he can meet his requirements. It is also relevant to mention that the said house was given on rent to the petitioners long time ago and he also started paying rent since 1993. It appears that the tenant has his own building at Payagipur and the ground of water-logging was not sufficient to reject the application for release and in such a long period, the petitioner could have made his arrangements for his residential purposes.
Learned Prescribed Authority as well as the learned First Appellate Court have considered all the aspects of the matter in detail and the conclusions are in accordance with the evidence on record supported by cogent reasons.
I do not find any error of law, illegality or perversity in the findings of both the courts below, which are concurrent. It is the option of the opposite party no.3 that where he wants to establish his Chamber because while establishing the Chamber, the convenience of the clients as well as other factors are also to be considered. Even if, the opposite party no.3 has purchased a new house during the pendency of the proceedings, then even it cannot be said that the need of the opposite party no.3 has totally eclipsed. On the date application, there were three grounds taken by the opposite party no.3 but out of those three grounds, only the ground of establishing Chamber is subsisting while the disabled daughter and ailing father have already expired.
In view of the settled legal proposition of law that the landlord is the best judge of his requirement and the tenant or even the court cannot dictate the landlord as to how else he can squeeze his family in small portion and satisfy his need without disturbing him (tenant).
In my opinion, the bonafide need and comparative hardships have been well considered by the courts below, which do not require any interference. I also find substance in the submissions of the learned counsel for the opposite party no.3 that in view of Radhey Shyam (supra) a writ of certiorari is not available against the judicial order of a competent court because the court could not violate the fundamental rights. It has further been held that an order of civil court could be challenged under Article 227 and not under Article 226. Therefore, the writ petition is also not maintainable.
For the facts and circumstances mentioned above, I do not find any substance in the grounds of the writ petition.
The writ petition is dismissed.
The petitioner is directed to vacate the premises in question within one month from today failing which, the opposite party no.3 shall be entitled to get the possession of the said premises through the process of the Court.
Office is directed to send a copy of this order to the court concerned at an early date.
Order Date :- 08th May, 2015.
VNP/-