Ram Kumar Singh vs Sri Nand Kishore Nigam
2015 Latest Caselaw 635 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
RESERVED
 
Case :- WRIT - A No. - 26563 of 2015
 
Petitioner :- Ram Kumar Singh
 
Respondent :- Sri Nand Kishore Nigam
 
Counsel for Petitioner :- Ravi Kant Shukla,R.K. Pandey
 
Counsel for Respondent :- Shiv Kumar Yadav
 

 
Hon'ble Suneet Kumar,J.

Heard Sri R.K. Pandey assisted by Sri Ravi Kant Shukla, learned counsel for the petitioner and Sri Utpal Chaterjee assisted by Sri Shiv Kumar Yadav, learned counsel for the respondent.

By means of this writ petition, the petitioner seeks to challenge the judgment and order dated 25.02.2015 passed in Rent Appeal No. 22 of 1994 by the Additional District Judge, Kanpur Nagar.

The facts of the case as brought on record are that the respondent/landlord had filed an application under section 21(1)(a) of the U.P. Act No.13 of 1972 for release of two rooms of House No. 104-A/238, Ram Bagh, Kanpur Nagar which were in possession of the petitioner/tenant, on the ground of personal need. The prescribed authority rejected the application of the respondent/landlord. Thereafter, the appeal filed by the landlord was allowed by the appellate court on 21.11.1987.

Aggrieved, the petitioner, assailed the order in a petition being Writ Petition No. 3187 of 1998. This Court vide order dated 22.11.2006 allowed the appeal partly upholding the order insofar the bonafide need of the landlord was concerned. However, remitted the matter to the appellate court to consider the factors in terms of Rule 16(1)(a) and 16(1)(d) of the Rules. The relevant portion of the order is extracted:-

"In so far as the bonafide need of the landlord is concerned the landlord had retired from government service in 1991 therefore his requirement for additional residential accommodation was to be considered liberally and the finding of the appellate court to such effect cannot be faulted. However, the other factors as provided in Rule 16(1)(a) and 16(1)(d) also required consideration on the facts and circumstances of this case. Therefore, while upholding the finding of the appellate court on the issue of bonafide need the matter is remitted to the appellate court to reconsider the factors provided in Rule 16(1)(a) and 16(1)(d) in their application to the facts and circumstances of the present case. The impugned order is therefore set aside to the extent where it has allowed the release application without considering the said factors only."

Pursuant to the order passed in the writ petition, the learned appellate court by the impugned order allowed the appeal directing the petitioner to vacate the premises within two months.

The respondent/landlord is the owner of the premises in question, the petitioner is a tenant on the ground floor, he has two rooms in possession and enjoys common latrine and courtyard, there are eight members in the family of the respondent/landlord and it is contended that the tenant has four members. The possession and occupation regarding the respective accommodation are not in dispute between the parties, though the utilization of the accommodation in possession by the parties was disputed before the court below.

Submission of learned counsel for the petitioner is that the appellate court has not considered the evidence on record wherefrom the petitioner's claim was fully justified in terms of Rule 16(1)(a) and 16(1)(d) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as "1972 Rules"). Further, it is contended that the petitioner is ready to accept any other accommodation which may be made available by the landlord in the same premises.

In rebuttal, Sri Utpal Chaterji, learned counsel appearing for the respondent, would submit that the impugned order is just and legal and the provisions of the Rule 16 has been considered by the appellate court as per the directions of this Court.

I have perused the record and the impugned order.

Learned appellate court has discussed in detail the accommodation available with the respective parties, the measurement of each room and the requirement of respective family members. The respondent had set up a need requiring three bedrooms, one study room, one room for relatives and friends, latrine, kitchen, bathroom and two rooms for general merchant and provisional store on the ground floor and two small rooms for stitching and weaving purposes. The petitioner had not disputed the commission report (paper no. 30 Ga) detailing the size of the rooms in possession of the respective parties though their utility and use was disputed. The appellate court noted that even if the objections of the petitioner regarding the commission report is accepted and the need and requirement of the respondent family is strictly tested, only one room is available with the landlord for residence.

Contention of the learned counsel for the petitioner before the appellate court was that the passage for cycle and scooter be treated as a room with the landlord was not accepted being inappropriate for residence. It was accepted that two rooms were already in dilapidated and demolished condition thus was not fit for habitation. The court below upon accepting the plea of the petitioner that the small rooms for stitching and weaving is taken to be one room, even then the need of the respondent family would not be satisfied. The appellate court noted that the respondent and his wife, elder son and his family, three younger sons require separate rooms and one room for guest and friends, the court accordingly came to the conclusion that the respondents do not have adequate and reasonably suitable accommodation having regard to the number and age of the members of the family, therefore, claim of the tenant for additional requirement could not have been construed, strictly as per Rule 16(1)(a).

The petitioner has an accommodation of two rooms, veranda, common latrine and bathroom. During the proceedings, respondent offered an alternative accommodation in the same house which was admittedly not accepted by the petitioner, therefore, in terms of Rule 16(1)(f) which provides that when the landlord offers to the tenant alternative accommodation reasonably suitable to the needs of the tenant, the landlord's claim for release of the building under the tenancy shall be considered liberally. The petitioner was offered a room measuring 12x9 ft and space of 12x3 ft. with a further proposal that the petitioner may get a kitchen constructed connecting it with the space/gallery. The petitioner rejected the offer on the plea that the accommodation offered was not habitable, though, the petitioner contended before the court below that the premises so offered was worth habitation for the family members of the respondent/landlord. Accordingly, the appellate court rejected the benefit claimed by the petitioner under Rule 16(1)(d).

In Mohd. Ayub v. Mukesh Chand1, while interpreting the above provisions of law, Supreme Court has observed in para 15 as under:-

"15. It is well settled the landlord's requirement need not be a dire necessity. The court cannot direct the landlord to do a particular business or imagine that he could profitably do a particular business rather than the business he proposes to start. It was wrong on the part of the District Court to hold that the appellants' case that their sons want to start the general merchant business is a pretence because they are dealing in eggs..........Similarly, length of tenancy of the respondent in the circumstances of the case ought not to have weighed with the courts below."

In Rishi Kumar Govil v. Maqsoodan2, on the plea and evidence relating to bonafide need of landlord, Apex Court in para 19 observed as under:-

"19. In Ragavendra Kumar v. Prem Machinery and Co.3, 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 Srivastava4, 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. Krishnan5, 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."

The Supreme Court reiterated the principles in determining the bonafide need and comparative hardship in Krishna Kumar Rastogi Versus Sumitra Devi6, wherein the Court observed:-

"Merely for the reason that some witness has stated that the landlord attempted to sell the property, his statement cannot be said to be reliable, as has been believed by the High Court or the appellate court, unless such fact is supported with documentary proof. There appears no document on record to support the bald statement of the witness to dislodge the case of bona fide requirement of the shop claimed by the appellant for his son who was unemployed."

A bare perusal of the Rule 16 of Rules 1972 makes it clear that the rule only prescribes certain factors which also need to be taken into account while considering the application for eviction of tenant on the ground of bonafide need. Part release of the premises as envisaged by Rule 16(1)(d) was not found tenable as the accommodation available with the landlord was small, further, the petitioner was offered an alternate accommodation which he refused to accept. It is not being disputed that the respondent's family consists of eight members, husband-wife, elder son his family and three sons, in this background the question of part release would not arise when the accommodation in the occupation of the tenant is inadequate, as in the facts of the present case, only one room. The appellate authority has recorded, on detail consideration of the evidence on record that the accommodation with the landlord would not suffice even after part release of the accommodation under the occupancy of the tenant. The petitioner had refused the alternate accommodation offered by the landlord, therefore, the need of the respondent/landlord was construed liberally in terms of rule 16(1)(f).

I do not find any illegality or infirmity in the order impugned.

The writ petition is dismissed.

No order as to costs.

Order Date :-22.05.2015

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