IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition 354 of 2001 (M/S) Shri Krishan Lal alias Balam Singh S/o Shri Chhedi Ram ..……… Petitioner. Versus IIIrd Additional District Judge, Dehradun and others ……… Respondents Mr. Siddhartha Singh, the learned counsel for the petitioner. Mr. V.K. Kohli, the learned Senior Counsel assisted by Mr. Tribhuwan Pandey, the learned counsel for the respondents. Hon’ble Tarun Agarwala, J. The present writ petition has been filed against the orders of the Prescribed Authority as well as of the Appellate Authority releasing the premises in question, u/S 21 (1) (a) of the U.P. Act No. 13 of 1972. The factual matrix of the case, shorn of necessary details, is illustrated in the application u/S 21 of the Act filed by the landlord/opposite party which states that initially the landlord had let out a piece of land to the tenant for timber purposes but, gradually, he started a diary business and made some constructions. The landlord opposite party requested the petitioner/tenant to vacate the premises and, instead of vacating the premises, he filed a suit for temporary injunction alleging that not only a piece of land was let out to him but also a portion of the building and that he cannot be evicted forcefully except in accordance with law. The tenant submitted in that suit that U.P. Act No. 13 of 1972 was applicable since a portion of that building was also let out to him. This suit was decreed and, it was held that the petitioner was a tenant of the house alongwith the land. This position was accepted by both the parties and the decree became binding not only on the tenant but also upon the landlord. Armed with this decree, the landlord filed an application for release of the premises in the year 1983 contending that he is the owner and landlord and that the petitioner is a month to month tenant in a 2 portion of a house consisting of two rooms and a temporarily improvised kitchen in the premises in question, at the monthly rent of Rs. 65/- p.m. in addition to house tax and water tax. The landlord contended that he was living with his elder brother who had asked him to make his own arrangement and that the landlord is still unemployed and is unable to get married because of paucity of adequate accommodation for him and for the family after he gets married. On this ground, the landlord contended that the need was bonafide and genuine and if the premises was not released, he would suffer irreparable loss. The release application was resisted by the petitioner/tenant and all possible grounds were taken, namely, that there was no bonafide need and that the landlord does not require any accommodation for his personal need and that he has other premises where he could reside and, that, in any case, being a bachelor, he had no requirement for the entire premises, in question. Upon the exchange of the affidavits, the Prescribed Authority, after considering the material evidence that was brought on the record, partly allowed the release application and released a portion of the premises, in question, and directed that the remaining portion would be retained by the tenant on which the tenant could make his own constructions where he could reside and carry on his diary business. The tenant as well as the landlord preferred separate appeal which was decided together. The Appellate Court allowed the appeal of the landlord and released the entire accommodation in favour of the landlord. The tenant’s appeal was, consequently, rejected. The tenant, being aggrieved by the orders of the 3 Prescribed Authority as well as of the Appellate Court, has now preferred the present writ petition. 27 long years have elapsed since the date of filing of the release application. Before this Court, further resistance was made by the petitioner/tenant contesting bitterly and contending that the release application should be dismissed and the impugned orders should be set aside. I have heard Shri Siddartha Singh, the learned counsel for the petitioner and Shri V.K. Kohli, the learned Senior Counsel duly assisted by Mr. Tribhuwan Pandey, the learned counsel for the landlord/opposite party. The learned counsel for the petitioner submitted that the finding of bonafide need of the landlord was perverse and based on surmises and conjectures. The learned counsel submitted that there was no requirement for the landlord for the premises in question, and the evidence so filed only indicated a desire and on such desire, the presumption of bonafide need cannot be considered. The learned counsel for the petitioner submitted that in the light of the judgment of the Supreme Court in the case of Deena Nath Vs. Pooran Lal, [2002 (48) ALR 259], no bonafide need existed and the application should have been rejected. The Supreme Court in the aforesaid judgment held as under:- “In this connection, we may refer to the decision of this Court in the case of Shiv Sarup Gupta Vs. Dr. Mahesh Chand Gupta, (1999) 6 SCC 222, in which it was held, inter alia, that : The term bona fide or genuinely refers to a state of mind. Requirement is not a mere desire. The degree of intensity contemplated by ‘requires’ is much higher than in mere desire. The phrase ‘required bona fide’ is suggestive of legislative intent that a mere desire which is the outcome of a whim or fancy is not taken note of by the rent control 4 legislation. A requirement in the sense of felt need which is an outcome of a sincere, honest desire, in contra-distinction with a mere pretence or pretext to evict a tenant, on the part of the landlord claiming to occupy the premises for himself or for any member of the family would entitle him to seek ejectment of the tenant.” The learned counsel submitted that the legislative intent in enacting the provision of Section 21 of the Act was to avoid any arbitrary or whimsical action of a landlord to evict his tenant. The learned counsel submitted that from a perusal of Section 21 of the Act, the statutory mandate was that there must be a requirement by the landlord which means that it was not a mere whim or a fanciful desire but that the requirement was bonafide which must be “in praesenti” and must be manifested in actual need which would evince the court that it was not a mere fanciful or whimsical desire. The learned counsel submitted that, in the present case, from the evidence filed by the landlord, it was clear that the need was whimsical and based on presumption and was not a bonafide requirement. The learned counsel further submitted that the landlord was a bachelor and, looking into the extent of accommodation and the areas, in question, partial release of the property was justified as held by the Prescribed Authority and that the lower appellate court committed a manifest error in releasing the entire accommodation in gross violation of Rule 16 of the Rules. In support his submission, the learned counsel placed reliance upon the decisions of Kamta Das Verma and others Vs. VIIth Additional District Judge, Allahabad and others, 2000 (1) ARC 332 and Swaraj Kumar (Sri) Vs. Arvind Kumar, [2005 (2) ARC 243]. The learned counsel further made a submission that during the pendency of the proceedings before the lower appellate court, another tenant of the landlord, namely, Habbib vacated the another 5 premises and handed over the vacant possession to the landlord and, in view of this subsequent event, the need of the landlord gets fulfilled and, consequently, on this score, the need of the landlord having been fulfilled, the release application was liable to be rejected. The learned counsel submitted that this subsequent event was not considered by the lower appellate court. The learned counsel submitted that the subsequent events which goes to the root of the matter should be considered in a given case and, in support of his submission, the learned counsel placed reliance upon the decisions of Kedar Nath Agrawal (Dead) and Another Vs. Dhanraji Devi (Dead) by Lrs. And Another, (2004) 8 SCC 76, Ram Kumar Barnwal Vs. Ram Lakhan (Dead), (2007) 5 SCC 660, Prabha Arora & Anr. Vs. Brij Mohan Anand & Ors., [2007 (3) ARC 875] and Shiv Sarup Gupta Vs. Dr. Mahesh Chand Gupta (1999) 6 SCC 222. In the end, the learned counsel submitted that the release application u/S 21 (1) (a) of the Act was not maintainable since no building was let out to the petitioner. Consequently, u/S 29-A of the Act, the petitioner could only be evicted on any one of the grounds mentioned u/S 20 of the said Act. The learned counsel submitted that in view of the provision of Section 29-A, no release application u/S 21 (1) (a) of the Act, on the ground of personal need, was available to the landlord. In support of his contention, the learned counsel placed reliance upon a decision of the Allahabad High Court in the case of Pratap Narain Vs. Vth Addl. District Judge, Allahabad and others 1998 (2) AWC 1451. On the other hand, Shri V.K. Kohli, the learned senior counsel for the landlord/respondents submitted that from the evidence that was brought on record, the need of the landlord was 6 bonafide and was accordingly proved. The Prescribed Authority, itself, found that the need was genuine and bonafide and that it was not based on any whims and desires and that there was an actual requirement for the landlord since he was living with his elder brother who had asked him to vacate the premises. The learned counsel submitted that the lower appellate court was justified in releasing the entire premises since it was found that the premises released by the Prescribed Authority was that portion which the petitioner was using to house his cattle which was not fit for residential purpose for the landlord. The learned counsel further submitted that on this ground itself partial release of the premises was not possible. The learned counsel submitted that partial release, in any case, was not applicable in view of the fact that the lower appellate court has given a categorical finding that the petitioner had purchased another plot in which he could easily shift into and start his dairy business as well as use it also for residential purposes. The learned counsel, in the end, submitted that the premises released was only one room which was not sufficient for the petitioner’s need and, in any case, the tenant cannot force the landlord to move in a room which he does not like and, that the prerogative is of the landlord to choose whichever premises he likes for his personal need. In the end, the learned senior counsel submitted that the application u/S 21 of the Act was maintainable and that the provision of 29-A of the Act was not applicable since there was a decree which was binding on petitioner/tenant wherein the decree stipulated that not only the land was let out but also a portion of the building was let out and that the Act No.13 of 1972 was applicable on the said building. The learned counsel further submitted that the question of applicability of Section 29-A of the Act vis-à-vis, non maintainability of the application u/S 21 (1) (a) of the Act was never raised nor argued either before Prescribed Authority or 7 before the Appellate Court, and therefore, such issue cannot be raised or contested for the first time in the writ petition. Having heard the learned counsel for the parties at some length, the Court finds that both the Courts below have given a concurrent finding on the bonafide need of the landlord for requirement of the premises for his personal need. This finding is based on appreciation of evidence and, being a finding of fact, cannot be interfered with in a writ jurisdiction. The bonafide requirement as stated by the Supreme Court is based on the element of need and the genuineness of the application of the landlord for the release of the shop has to be decided on this element of need and not on the basis of a desire or on presumption. In the present case, the Court finds that both the courts below have held that the need of the landlord was bonafide and genuine and that he had no other place to reside. This Court is satisfied that the findings arrived at was based on appreciation of evidence which is neither perverse nor requires any interference in the writ petition. In so far as the partial release of the premises is concerned, the Prescribed Authority released a portion of the premises in which the tenant was carrying out his dairy business where his cattle was being housed. The appellate court while considering the release of the premises held that this portion could not meet the requirement and the need of the landlord quite apart from the fact that the said portion was not fit for residential purpose. In my opinion, the Prescribed Authority committed a manifest error in releasing a portion which was unfit for human inhabitation. When the need is found to be genuine, then the premises should be released. The hardship which is to be considered under Rule 16 of the Act will only come into picture when the tenant professes that he made a vigorous search for an alternate accommodation which 8 he was unable to find and, in that light, comparative hardship would be considered and only then the question of partial release of the premises could arise. But where no such averment has been made nor any effort to locate an alternate accommodation has been made, the comparative hardship tilts in favour of the landlord rather in favour of the tenant. 27 years have been elapsed since the institution of the suit u/S 21 of the Act. No effort has been made by the petitioner with regard to the alternate accommodation. Consequently, the discretion under section 16 of the Act in favour of the petitioner is lost and the balance tilts in favour of the landlord. Consequently, on this short ground, the contention of the learned counsel for the petitioner that partial release of the premises should be adopted is patently erroneous, quite apart from the fact that the Court finds that the reasoning adopted by the appellate court in releasing the entire premises was perfectly justified in the facts and circumstance of the given case. On the question of maintainability of the application u/S 21 (1) (a) of the Act vis-à-vis section 29-A, the Court finds that this issue was not raised by the tenant as a ground either before the Prescribed Authority nor was raised as a ground of appeal before the lower appellate court. This Court, consequently, is of the opinion that such questions cannot be raised for the first time in a writ jurisdiction. The contention of the learned counsel for the petitioner that it is a pure question of law which can be raised in a writ jurisdiction, is erroneous. The question whether the tenant had let out a piece of land or had let out a building alongwith a piece of land is a pure question of fact which can only be proved by way of evidence and, based on such evidence, the maintainability of Section 21 (1) (a) of the Act and the applicability of Section 29-A would come into picture. Consequently, on this ground, the contention of the learned counsel for the petitioner cannot be 9 considered. However, to settle the matter at rest, the Court has perused the application u/S 21 and the affidavit in support of the said application. In paragraph 2 of the application, the landlord contends that the petitioner is a month to month tenant in a portion of a house consisting of two rooms and an improvised room. In paragraph 3 of the application, it has been stated that a piece of land was initially given in which the tenant made construction and, thereafter, upon demand, instead of vacating the premises, the petitioner filed a suit alleging that a building alongwith land was let out and that the suit was decreed indicating that the petitioner was let out the building alongwith the land. Similar averments were made in the affidavits supporting the said application. The petitioner in his written statement admits in paragraph 2 that the premises, in question, was let out for business as well as for residential purposes. In paragraph 3, the petitioner admits about his filing of the suit and the decree passed therein. In the affidavit filed by the petitioner supporting his written statement, the petitioner/tenant contends in paragraph 3 of the said affidavit that the vacant land was never let out to him on account of which the petitioner filed a suit for declaration alleging that U.P. Act No. 13 of 1973 applied to the premises under the tenancy to the petitioner. From the entire reading of the pleadings of the parties, the intention of the parties can be gathered. The consistent stand of the petitioner/tenant before the courts below was that not only the land was let out to him but also a portion of the building for his residential purposes and since the landlord was threatening to vacate him forcibly, the suit for permanent injunction was filed for declaration and that U.P. Act No. 13 of 1972 was applicable. This suit was decreed and it was held that the petitioner is a tenant of a portion of the building as well as of the land and that U.P. Act No. 13 of 1972 was applicable on the premises. In view of this decree, 10 which is binding on both the parties, the petitioner cannot turn around at this stage and submit that only a piece of land was let out to him and that no building was let out to him. Consequently, the Court finds that the application u/S 21 (1) (a) was maintainable. In view of the aforesaid, the submissions of the learned counsel for the petitioner on merit does not hold any water. No other point was raised. In view of the aforesaid, the writ petition fails and is dismissed. This Court finds that for 27 long years, the petitioner had denied the release of the premises in favour of the landlord, consequently, while dismissing the writ petition, the Court imposes a cost of Rs. 25,000/- which shall also be recovered from the petitioner/tenant. (Tarun Agarwala, J.) Dated 15.07.2010 Shiv