Anil Kumar vs Sri Lal And Others
2013 Latest Caselaw 6275 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 40
 

 
Case :- WRIT - A No. - 3578 of 2004
 

 
Petitioner :- Anil Kumar
 
Respondent :- Sri Lal And Others
 
Counsel for Petitioner :- Tarun Verma,Krishn Mohan Tripathi,Madan Mohan
 
Counsel for Respondent :- Sc,Arvind Srivastava
 

 
Hon'ble Krishna Murari, J.

This writ petition arises under Section 21(1)(a) & (b) of the U.P. Act No. 13 of 1972 (hereinafter referred to as the 'Act') initiated by the landlord-petitioner. Release application was filed on the grounds interalia -

(i) The double story residential house of the father of the petitioner was only 21 feet from East to West and 24 feet from North to South. On the ground floor there was one shop in the occupation of his brother Gyanendra Kumar Gupta who was running hardware business and in the second floor his other other brother Rajendra Kumar Gupta, who is an Advocate was having his chamber. There were two small rooms measuring 8' x 9' and 9' x 12' on the first floor, which were insufficient for the residence of the entire family.

(ii) In view of shortage of space and strained relationship with the stepmother, the elder brother Gyanendra Kumar Gupta has purchased a small house in the same Gali and shifted therein along with his family. The petitioner was having strained relationship with his step mother and it was not possible to live in the ancestral house, as such, he also shifted in the house purchased by his brother Gyanendra Kumar Gupta. Subsequently, the said house was reconstructed into a double story building in which a godown was constructed in the ground floor and residential accommodation in the first floor.

(iii) The petitioner got married in 1989 and on his request his brother Gyendra Kumar Gupta permitted him to occupy in one small room in the ground floor towards northern portion of the godown. After marriage the petitioner was blessed with two daughters and there having acute shortage of accommodation and strained relation with his brother's wife, he purchased the premises in dispute by means of registered sale deed dated 1.3.1993. Since the purchased property was in a dilapidated condition he got the map sanctioned from the Gorakhpur Development Authority for reconstruction.

(iv) A registered notice dated 24.2.1996 was sent to the respondent-tenants and thereafter, release application was filed on 7.7.1997.

It was also pleaded in the release application that the respondents have sound financial status and one of the defendants Shambhoo Nath has purchased a house in Mohalla Narsinghpur, which was in a vacant state and he has shifted there and other respondents have also purchased land in Mohalla Narsinghpur and raised construction.

The release application was contested by the tenant-respondents on the allegation :

There was no relationship of landlord and tenant and no notice was served. The house in dispute was not in dilapidated condition requiring any demolition or reconstruction. It was further alleged that father of the petitioner has several houses in the city of Gorakhpur i.e. House No. C-183/17 which is three story building, House no. C-183/429 and third House No. C-83/306 in Mohalla Basantpur. It was alleged that there were several rooms in the residential house at Basantpur wherein the petitioner has a share. Another house was alleged to be owned at Basantpur which under the tenancy of one Madan Mistry. The other averments made in the release application was denied.

In replication, it was pleaded on behalf of the petitioner thatHouse No. C-183/17, which was residential house was only 21 feet East to West and 24 feet North to South of which ground floor was in occupation of his brother Gyanendra Kumar Gupta and Rajendra Kumar Gupta and the first floor was in occupation of his stepmother and stepsister and father and was not sufficient to accommodate the petitioner and his family. Regarding House no. C-183/429, it was pleaded that one part is in occupancy of tenant Smt. Salma and other part was in the tenancy of Rafiq and one room in the tenancy of Baleshwar Yadav. With respect to House C-83/306, it was pleaded that it was in the tenancy of Govind Lal Verma and Muneer Ahmad and rent was collected by the stepmother of the petitioner for her livelihood.

Prescribed authority after analyzing the evidence oral as well as documentary brought on record came to the finding that various properties referred to by the tenant/respondents were not in vacant state and were occupied by tenants and in so far as the ancestral house was concerned the ground floor was in occupation of his two brothers and the first floor was in occupation of his stepmother and sister and second floor of the said house was in occupation of his another brother Rajendra Kumar Gupta who is residing in one room, as such, there was no accommodation available for the petitioner and his family. Prescribed authority also recorded a finding that relationship between the wife of the petitioner and wife of his brother Gyanendra Kumar Gupta who has permitted the family to live in small room in the ground floor of the house constructed by him was strained and he was being pressurized to vacate the same and thus there was dire necessity for him to have the accommodation purchased by him. Prescribed authority held that the need of the petitioner-landlord is bonafide and genuine.

With respect to comparative hardship, the prescribed authority found that since the landlord-petitioner was living in one room accommodation at the mercy of his brother and there was no other accommodation available with him and the tenant-respondents, except for filing an affidavit that they tried to search and could find alternative accommodation, have not brought any other material on record. However, the application of the petitioner under Section 21(1)(b) of the Act was rejected by the prescribed authority. Prescribed authority has also returned a finding that one of the tenant respondent no. 3 has acquired a residential house in Kuraghat and was residing there for the last three years. On an appeal being filed by the respondent-tenants, the appellate court allowed the same.

It is contended by the learned counsel for the landlord-petitioner that lower appellate court has reversed the finding of the prescribed authority without referring or analyzing the evidence relied upon by the trial court. It is further submitted that the findings for discarding the bonafide need of the landlord are based on no evidence and rather based on surmises and conjectures. It is further submitted that the view taken by the appellate court that in case the landlord is facing inconvenience he can get additional construction made in the ancestral house for his living is totally perverse.

In reply, Sri Arvind Srivastava, learned counsel for the tenant-respondents has tried to justify the impugned order. It has been submitted that the appellate court rightly rejected the application after considering the entire facts and circumstances of the case inasmuch as the landlord had various accommodation available to him and even though some tenants had promised to vacate the same on his request and the present tenants have been targeted and the proceedings were initiated against them which went to show that there was no actual bonafide need.

I have considered the argument advanced by learned counsel for the parties and perused the record.

Trial court has recorded a categorical finding that none of the accommodation was available to the petitioner-landlord in vacant state and he was living along with his family in one room accommodation at the mercy of his brother. Prescribed authority has also recorded a finding that the ancestral house does not contain sufficient accommodation to accommodate the family of the petitioner in decent manner and thus held that need of the landlord who has purchased the house in dispute was bonafide and genuine.

A perusal of the order of the lower appellate court goes to show that the finding of the trial court has been set aside without considering the evidence and on imaginary condition. Lower appellate court has held that since the petitioner-landlord is alleged to be residing in one room accommodation with his family in the house of his brother at his mercy leaving his three story ancestral house goes to show that the need was not bonafide and genuine . This finding has been recorded by the appellate court without even referring to the allegation much less evidence before the prescribed authority that one room accommodation where the petitioner is living with his family was situate in the building constructed by his brother after having moved out from the ancestral house on account of difference in the family and particularly stepmother and stepsister. He has also failed to take into account the extent of accommodation which was available in the ancestral house and whether it was sufficient to accommodate the family of the petitioner consisting of four persons i.e. himself, his wife and two daughters for decent living. He has also not taken into account the fact and evidence to support to the same that on account of difference between his wife and his brother's wife he was being pressurized to shift from the said place.

In the absence of consideration of the evidence discussed and relied upon by the prescribed authority for establishing the bonafide need, the judgment of the appellate court reversing the said finding without even referring to the evidence cannot be legally sustained.

The bonafide need of the landlord-petitioner has also been negated by the appellate court on the ground that two other tenants had assured that they will vacate the premises in their occupation as and when required. Since no steps have been taken by the landlord to get the said premises vacated it demonstrated that there was no bonafide need. The finding is perverse; firstly, there is no evidence on record to show that any tenant has given any such assurance and second the landlord is the bast person to decide which accommodation suits him best and the tenant cannot direct the landlord to get a particular accommodation vacated leaving the one in his possession and these factors are not germen to deciding the question of bonafide need. The findings of the appellate court on this count is totally perverse and not liable to be sustained. Further finding of the appellate court that in case there was any bonafide need the landlord petitioner would have got new construction made in the ancestral house is also totally perverse and not liable to be sustained. A person facing difficulty of residence having purchased a property for the purpose cannot be denied the right to get the same vacated from the tenant on the ground that he can raise new construction in some other building for residence of his family.

The findings recorded by the appellate court and the view taken by him that need of the landlord is not bonafide is totally perverse without considering the evidence on record and totally unsustainable.

Further there is another aspect requiring consideration. This Court during the pendency of the proceedings had issued a Advocate Commissioner to inspect the various premises. A report has been submitted which is on record, which goes to show that the disputed accommodation at 183-C/27 Basantpur was a small accommodation consisting of rooms in the form of 'Kotharis' having a covered area 781 sq. ft. and open area 101 sq. ft. Total area is 882 sq. ft. which was in possession of the tenant. With respect to house no. 183/26 situate at Basantpur, it was found that it was a three storied building in occupation of Sri Gyanendra Gupta and a newly constructed house with plastered wall. On the ground floor, the petitioner was living with his family as a licensee in one room with attached bath room. The other big room situated in the ground floor was being used by Sri Gyanendra Gupta as godown for running his hardware business and first and second floor were in his occupation wherein he was residing with his family. With respect to House no. 183/17, Basantpur, the Commission reported that it was owned by the father of the petitioner and after his death, Sri Rajendra Gupta, another brother of the petitioner is residing along with his mother and sister. The Commission also reports that the building appears to be 30 ? 40 years old and the rooms are very small. The ground floor consists of one shop in occupation of Sri Gyanendra Gupta who was running a shop and adjacent to the shop there was verandah which was converted into a room and was being used by another brother Sri Rajendra Gupta, Advocate for his chamber. The first floor consists of one room, one store, one kitchen, one bathroom and one small verandah which were in the occupation of stepmother of the petitioner along with her daughter. Second floor consists of one bedroom, one Verandah, one kitchen and one bathroom under the staircase where the other brother Sri Rajendra Gupta along with his wife and one son was found to be residing. With respect to House no. C-183/429, The Commission reported that the entire property is in occupation of four different tenants. The Commission also submitted a report in respect of House no. C-183/306, Basantpur. The said property is said to be owned by the family of the petitioner landlord consisting of four rooms which were also in occupation of two different tenants having two rooms each in their occupation.

The report submitted by the Advocate Commissioner issued by this Court also affirms the findings of the trial court that there is no accommodation available in vacant state with the petitioner landlord where he can reside in a respectable and decent manner with his family and thus there exists bonafide need.

With respect to comparative hardship, there is nothing on record except a bald affidavit that tenant-respondents made effort to find out alternative accommodation during the pendency of the proceedings. It is well settled that failure on the part of the tenant to search alternative accommodation the balance of comparative hardship tilts in favour of the landlord. In the case in hand, the tenants only filed affidavit in this regard without actually disclosing the effort made by him. The appellate court wrongly and illegally held that since efforts were made but no accommodation found by the tenant his comparative hardship would be greater.

Lower appellate court has also failed to take into account the fact that during pendency of the proceedings, one of the joint tenants namely, opposite party no. 3 acquired another residential accommodation in vacant state and shifted therein along with his family. As a matter of fact, the Advocate Commissioner's report does not specifically mention that the tenants are residing in the house in dispute. Rather it reflects that they are only carrying works of blacksmith from the accommodation in dispute.

The landlord having purchased the house in dispute for the purpose of residing therein with his family and in the facts and circumstances and also the evidence on record indicates that his need is bonafide and genuine and he shall suffer greater hardship. The judgment of the lower appellate court holding to the contrary cannot be sustained and is hereby quashed and that of the prescribed authority is affirmed.

Writ petition stands allowed. No orders as to costs.

However, considering the facts and circumstances, tenant-respondents are allowed six months' time to vacate the premises in dispute provided they give an undertaking on an affidavit before the prescribed authority that they shall vacate and handover the vacant possession of the disputed premises peacefully to the landlord-petitioner within six months from today and also deposit a sum of Rs.600/- lump sum calculated at the rate of Rs.100/- per month for use and occupation of the premises for six months with the prescribed authority within three weeks from today. The landlord-petitioner shall be entitled to withdraw the amount so deposited.

In case the respondents fail to comply with the aforesaid terms and conditions, the order granting time to vacate the premises shall loose its efficacy and the order of the prescribed authority shall be liable to be executed through process of Court.

Order Date :- 4.10.2013

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