Smt. Kamlesh Rani Gupta Died And 3 ... vs Rajesh Kumar Rastogi
2019 Latest Caselaw 1949 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 19
 

 
Case :- WRIT - A No. - 57030 of 2013
 

 
Petitioner :- Smt. Kamlesh Rani Gupta Died And 3 Others
 
Respondent :- Rajesh Kumar Rastogi
 
Counsel for Petitioner :- Santosh Kumar Singh,Sharad Kumar Pandey
 
Counsel for Respondent :- B.M. Tripathi,P.K.Srivastav,Rohan Gupta
 

 
Hon'ble Manoj Kumar Gupta,J.

The instant petition is directed against the concurrent findings of bonafide need and comparative hardship recorded by the Prescribed Authority and Appellate court in favour of the respondent-landlord in proceedings arising out of an application under Section 21 (1) (a) of U.P. Act No.13 of 1972 (for short 'the Act').

The need set up in the release application is as follows:-

It is alleged that Late Lala Babu Ram Rastogi, grandfather of the respondent-landlord divided joint family properties by way of mutual family settlement. Subsequently, certain differences cropped up amongst the family members, resulting in institution of Original Suit No.398 of 1981. In the said suit, one Sri Anand Swaroop Dubhish was appointed as sole arbitrator by mutual consent of the parties and he gave award on 12.12.1984 partitioning the joint family properties. It was made Rule of the Court on 15.12.1984. Thereunder, the respondent-landlord got flat no.9 (in dispute in the instant petition), flat no.19 and three servant quarters. The said fact was duly intimated to the tenants. The petitioners, who are tenants of flat no.9, attorned in favour of the respondent-landlord. His father Ram Lakhan Rastogi got 1/3rd portion of ancestral house no.74/142 Dhankutti, Kanpur. The respondent-landlord is in possession of two rooms, which have fallen to the share of his father in the said ancestral house measuring 16" x 12" and 12" x 12". His family comprises of himself, his wife, son Ritvik Rastogi aged about 22 years and daughter Kanupriya Rastogi aged about 15 years. It is also asserted that the relationship of his wife with his mother is not cordial, which is disturbing the family peace. The divorced sister of the landlord has also started residing in the ancestral house. The father of the landlord is asking him to make alternative arragement. The landlord is a mechanical engineer having consultancy business and because of paucity of accommodation, he is also not having any office. His son is of marriageable age and would be married in near future. He consequently requires three bedrooms, one for himself, another for his son and third for his daughter, apart from drawing room, dining room, guest room, one room for his office, a servant quarter and a garage. The accommodation in possession of the petitioner-tenants comprises of five rooms, store, verandah, kitchen, latrine, bathroom apart from garage and one servant quarter. It is urgently required by him to fulfill his residential need and that of his family, as he has no other suitable accommodation.

The release application was contested by the petitioners contending that the award given by the arbitrator is null and void. The alleged partition is contrary to legal provisions. The accommodation in possession of the respondent-landlord in ancestral house is more than sufficient.

It is pertinent to note that Rakesh Kumar Rastogi, brother of the respondent-landlord, who got flat no.10 under the same award of the arbitrator and was also residing in the ancestral house, filed a release application against the tenant of flat no.10. He set up almost similar need in the release application. The release application was initially rejected by the Prescribed Authority but the appeal filed by him was allowed. The tenant Smt. Dharam Jeet Kaur, deceased and others filed Writ Petition No.26857 of 2000 before this Court challenging the judgment of the appellate court dated 17.5.2000. This Court upheld the need of Rakesh Kumar Rastogi, brother of the respondent-landlord and dismissed the writ petition. The judgment passed in those proceedings dated 11.8.2006 was duly filed by the respondent-landlord before the Prescribed Authority in the instant proceedings.

The Prescribed Authority by impugned judgment dated 14.9.2010 allowed the release application. While allowing the release application, the Prescribed Authority has placed reliance on the judgment of this Court dated 11.8.2006 in Writ Petition No.26857 of 2000 in repelling various similar contentions raised by the petitioners. The appellate court, however, dealt with the matter quite independently, apart from considering the judgment in Writ Petition No.26857 of 2000 and dismissed the appeal.

Learned counsel for the petitioners has made two fold submissions. Firstly that the judgments of the courts below do not record any independent finding regarding bonafide need of the respondent-landlord except for placing reliance upon the previous judgment rendered by this Court in case of Rakesh Kumar Rastogi. It is submitted that the petitioners were not party to the said proceedings nor the said judgment is binding upon them. Second, the petitioners had offered to surrender possession of part of the disputed premises but the courts below have wrongly rejected the said offer in complete ignorance of the statutory requirement under Rule 16 (1) (d) of the Rules framed under the Act.

On the other hand, learned counsel for the respondent-landlord submitted that the courts below have referred to the judgment rendered in the case of his brother by this Court on account of the fact that the release application in the instant case was contested by the petitioner-tenants on identical pleas. He further submitted that even the accommodation in possession of the tenants in flat no.9 is exactly the same as that in flat no.10 in respect of which release was sought by his brother. He further submitted that the appellate court had duly examined the plea relating to part release of the disputed premises and has rejected the same by adopting the reasoning given by this Court while deciding the writ petition filed by the tenant of flat no.10. It is submitted that the same reasoning is applicable in the instant case as well, as in case the disputed premises is divided into two, one portion will be left with no basic facilities like kitchen, bathroom and latrine etc. and thus, it is not feasible to partition the disputed premises.

I have considered the submissions made by learned counsel for the parties and perused the impugned judgments and the material placed on record.

The main plea taken by the petitioner-tenant in opposition to the need set up by the respondent-landlord in the release application was that the landlord is comfortably living in ancestral house. It was suggested by him that out of two rooms in his possession in the ancestral house, one room could be occupied by the landlord and his son and other by his wife and daughter. He also sought to challenge the arbitral award on various grounds.

The appellate court has observed that the arbitral award has become final as it was not challenged by any party to the said award. The tenant has got no right to challenge the arbitral award rendered by the arbitrator for partition of the joint family properties belonging to the landlord. While repelling the said contention, the appellate court also rightly noted the fact that the petitioner-tenant had duly attorned in favour of the respondent-landlord. Consequently, it is not open to him to challenge the Arbitral Award. The finding rendered in this regard is also not being challenged before this Court.

The specific case of the respondent-landlord was that he was occupying two rooms in the portion which had fallen to the share of his father in the ancestral house. He is living in the same as a licensee. It has come on record that the father of the petitioner had died on 13.2.2002. He left behind a Will under which he had conferred right of residence in the portion falling to his share in the ancestral house in favour of his wife and thereafter, his daughter. The specific case of the respondent-landlord in the release application, as originally filed, was that his divorced sister had also started living in the ancestral house. The landlord cannot be compelled to remain in possession of the portion of ancestral house in which, after partition, he has been left with no independent right. His need for the premises in dispute has rightly been held to be bonafide and pressing by the courts below. It is true that the Prescribed Authority has primarily placed reliance upon the judgment rendered by this Court in Writ Petition No.26857 of 2000, but as noted above, the appellate court has dealt with the matter quite independently, apart from placing reliance on the said judgment as well. Since it is not in dispute before this Court that the release application filed by the brother of the respondent-landlord was contested by the tenant in that case on identical pleas and even extent of accommodation in flat no.10 is the same as in flat no.9 (in dispute in the instant case), therefore, this Court finds no illegality in case the courts below have also placed reliance on the earlier judgment of this Court while recording finding of bonafide need, in the instant case in favour of the respondent-landlord.

In Pratibha Devi Vs. T.V. Krishnan, 1996 (5) SCC 353, the Supreme Court held that the landlord is the best judge of his requirement and the courts have no concern to dictate to the landlord as to how and in what manner he should live. Again in Raghvendra Kumar Vs. Prem Machinery and Co., 2000 (1) SCC 679, the Supreme Court has held that it is the choice of the landlord to choose place for his business which is most suitable for him. The courts cannot compel him to do business from a place not of his choice.

In Sarla Ahuja Vs. United India Insurance Company Ltd., (1998) 8 SCC 119, the Supreme Court has held that while deciding the question of bonafide need of the landlord, it is not for the court to find out as to how else he can adjust himself without getting possession of the tenanted premises. The relevant observations are as follows:-

"The crux of the ground envisaged in clause (e) of Section 14(1) of the Act is that the requirement of the landlord for occupation of the tenanted premises must be bona fide. When a landlord asserts that he requires his building for his own occupation the Rent Controller shall not proceed on the presumption that the requirement is not bona fide. When other conditions of the clause are satisfied and when the landlord shows a prima facie case it is open to the Rent Controller to draw a presumption that the requirement of the landlord in bona fide. It is often said by courts that it is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without getting possession of the tenanted premises. While deciding the question of bona fides of the requirement of the landlord it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted himself."

Coming to the next submission that Rule 16 (1) (d) has not been considered by the courts below in proper perspective, it is noteworthy that the disputed premises comprises of five rooms, apart from a bathroom, latrine and kitchen. It is not disputed before this Court that the design of flat no.9 (in dispute in the instant petition) is identical to that of flat no.10 in respect whereof release was sought by brother of the respondent-landlord. In that case also, the tenant took the plea before this Court that need of the landlord could be fulfilled by release of part of the flat. This Court examined the said plea in context of Rule 16 (1) (d) in great detail and thereafter observed as follows:-

"....The petitioner by a supplementary affidavit has offered to vacate a portion of the tenanted premises so that it can be occupied by the landlord for his residence. Such offer as given by the tenant petitioner has not been accepted by the respondent landlord mainly on the ground that the portion which is offered tobe vacated by the petitioner does not consist of basic amenities of toilet, bath room, kitchen etc. As such according to the respondent the offer made by the petitioner cannot be considered in view of the insufficiency of accommodation and absence of basic facilities in such portion. The submission of the learned counsel for the petitioner to the effect that further evidence is required on the issue of part release, can not be accepted by this court. The parties have placed their affidavits along with the sketch map of the premises in question. The maps show the extent of accommodation under tenancy. It consists of 5 rooms, two stores, kitchen, bathroom, latrine, closed verandah, open courtyard and a lawn. The stores, kitchen, bathroom and latrine are located in a straight line towards the north of the open courtyard. Access to the same from the rooms offered by the tenant to the landlord is not possible. Therefore, the offer if accepted by the landlord would deprive him of the basic facilities of kitchen, bathroom and toilet. The requirement of clause (d) of rule 16(1) is that the tenants needs would be met adequately by leaving with him a part of the tenanted portion and the landlords needs would be served by releasing the other part. In the present case the offer of part release by the tenant indicates that his needs would be adequately met but whether the needs of the landlord be served by the part release is to be seen. First and foremost any accommodation requires to have at least the basic facilities of toilet. Such is not available in case the tenanted portion is released in part. One or the other of the parties shall be left without the said facility. Hence if the need of the landlord is not served and the need of the tenant is not adequately met, part release of the tenanted portion cannot be ordered. This court is, therefore, of the view that no case has been made out by the petitioner for part release of the accommodation."

Counsel for the petitioners is not in a position to show that how the reasoning given by this Court in the said judgment would not apply to the facts of the instant case. The appellate court, while considering the plea relating to part release, has also come to the conclusion that in absence of basic amenities like latrine and bathroom in the other portion, it would not be possible to partition the same. The stand taken by the tenant that he would undertake constructions of the basic amenities in case the disputed premises is partitioned, has also not been found to be sustainable in law, inasmuch as the issue of part release is to be considered in the context of existing accommodation in the tenanted premises. The landlord cannot be compelled to accept the offer of tenant relating to part release dependent upon making the other part fit for residential use by undertaking additional constructions, albeit at the cost of the tenant.

In consequence, this Court finds no illegality in the impugned orders to warrant interference in exercise of power under Article 226 of the Constitution. The petition lacks merit and is dismissed.

However, the petitioners shall be entitled to remain in possession of the tenanted premises for a period of six months from today, as agreed to by learned counsel for the parties, provided the petitioners furnish an undertaking before the Prescribed Authority within three weeks from today that they will hand over vacant possession of the disputed premises to the respondent-landlord on or before expiry of six months and also pay Rs.60,000/- in lump-sum as rent/damages for use and occupation of the demised premises for the said period of six months. In case of default, it shall be open to the respondent-landlord to execute the release order forthwith.

(Manoj Kumar Gupta, J)

Order Date :- 29.3.2019

SL