IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition 1787 of 2009 (M/S) Shri Mizan Singh S/o Shri Bhopal Singh ..……… Petitioner. Versus Smt. Munni Goel W/o Shri S.P. Goel ……… Respondent Mr. V.K. Kohli, the learned senior counsel assisted by Mr. H.M. Bhatia, the learned counsel for the petitioner. Mr. J.P. Joshi, the learned counsel for the respondent. Hon’ble Tarun Agarwala, J. The landlady/opposite party filed an application u/S 21 (1) (a) of the U.P. Act No. 13 of 1972 for the release of the accommodation in the occupation of the tenant on account of her personal need for her family members. The landlady contended that she had four rooms in her occupation on the first floor of the building which comprised of two bed rooms, one dining room and one drawing room apart from a kitchen and a bath room. The landlady contended that she is about 75 years old and her husband is 78 years old and, on account of old age and, being arthritic, it had become very difficult for her to climb the stairs leading to the first floor. Further, her husband was operated for prostrate and her husband had been advised not to climb the stairs after the operation. Other than that, the landlady’s son, daughter-in-law and a 15 year old grandson were also residing in the same premises and a separate room was also required for the growing need of the grandson. On the other hand, the tenant was living in the accommodation on the ground floor and, over the years, had made additions and alterations in the said accommodation and had also started a diary business. The landlady submitted that the tenant and his family members, over the years, had occupied a commercial as well as a residential 2 building in the same municipality and, therefore, there was no difficulty for the tenant to shift in his own premises. The application was resisted by the tenant who submitted that the landlady had no bonafide need nor was there any requirement for any additional accommodation. The tenant submitted that the landlady had four rooms which were adequate for herself and for her family members. On the other hand, the tenant contended that he had no other accommodation where he could shift his residence or his business and that he had been using the premises not only for his residential purpose but also for his diary business which he had been carrying on for several decades. Various evidence in the form of affidavits had been filed by the respective parties. The landlady filed evidence to show that the tenant’s wife Smt. Bano Devi owned a flat in the same vicinity by means of a sale deed dated 6th January, 2000. Another son of the tenant Surendra Singh was having his own residence. Another son Lokendra Singh had purchased a shop in the year 2001 as well as a residential portion on 29th October, 2000 and that another son Virendra Singh had purchased a residential portion on 16/11/2005. On the other hand, the tenant submitted that pursuant to the family settlement dated 6th January, 2003, the flat in the name of his wife Bano Devi was transferred to his son on 15th July, 2006 and that another son Virendra Singh who was in the army had sold his residential portion to a third party on 1st September, 2006. The tenant also gave evidence to the effect that four flats of two rooms each were let out by the landlady to different persons during the pendency of the proceedings and, in that light, submitted that the need of the landlady for the release of the accommodation in question was a farce. 3 In the light of the evidence filed by the parties, the Prescribed Authority considered the matter and rejected the application of the landlady holding that the landlady was unable to prove her bonafide need for the accommodation in question. The Prescribed Authority came to the conclusion that the four rooms, which the landlady possessed, were sufficient for herself and for her family members. On the other hand, the Prescribed Authority found that the tenant had no accommodation of his own where he could shift and that he was carrying on the business of dairy for several years which would cause undue hardship in the event he was forced to shift and found that the comparative hardship was more in favour of the tenant rather than in favour of the landlady. The landlady, being aggrieved by the aforesaid order of the prescribed authority, filed an appeal which was allowed and the accommodation in question was released. The appellate Court found that in view of the accommodation owned by the tenant in the same municipality, the tenant had no right to object to the bonafide need and comparative hardship in view of the explanation to Section 21 (1) (a) of the Act. The appellate Court further found that the accommodation in question was insufficient for the landlady and for her family members and that the additional accommodation on the ground floor was rightly required for the growing need of the family members of the landlady. The appellate Court further found that quite apart from the fact that the tenant could not object to the comparative hardship, nonetheless, the appellate court found that no effort was made by the tenant to look for another accommodation and, therefore, the benefit of Rule 16 of the Rules tilted more in favour of the landlady rather than in favour of the tenant. The tenant, 4 being aggrieved by the order of the appellate court, has filed the present writ petition. Heard Shri V.K. Kohli, the learned senior counsel assisted by Mr. H.M. Bhatia, the learned counsel for the petitioner/tenant and Mr. J.P. Joshi, the learned counsel for the respondent/landlady. The leaned senior counsel submitted that the explanation to Section 21 (1) (a) of the Act was not applicable to the building in question since it was not completely a residential building and that the accommodation in question was also being used for non- residential purposes. In support of his submission the learned counsel placed reliance upon a decision in Prabhakar Mehrotra and another Vs. District Judge, Kanpur and others, 1982 ARC 426, wherein the Court held as under :- “It is, therefore, obvious from the above that the room which was let out to the petitioners was for a non- residential purpose and there can be no denying of the fact that it was being used for a non-residential purpose and it is still being used as such. It cannot be deemed to be a residential accommodation. Merely because if forms part of a big house which may be or is a residential building will not invest the room in question, which has been let out to the petitioner, to be a residential accommodation. In my opinion, the view taken by the appellate authority in this regard must be upheld as correct. ” The learned counsel submitted that the accommodation in question was being used for residential as well as non-residential purposes and, therefore, the explanation to Section 21 (1) (a) could 5 not be made applicable since it was only confined to a residential building. The learned counsel further submitted that the fact that the landlady had let out four flats of two rooms each to other persons during the pendency of the proceedings gives a clear indication that there was no bonafide requirement of the landlady and, if she had any genuine need for an additional accommodation, she could have utilized one of those flats for her own personal need. The learned counsel further submitted that the petitioner had been carrying on his business from the premises in question for the last 37 years and that the petitioner would face greater hardship in the event he has to shift his business to another place. On the other hand, the learned counsel for the landlady submitted that admittedly the tenant had purchased residential and non-residential accommodation prior to the filing of the release application and the mere fact that the petitioner and his family members had transferred the property during the pendency of the release application, would make no difference to the applicability of the explanation to Section 21 (1) (a) which is squarely applicable to the accommodation in question which is primarily a residential accommodation. The mere fact that the petitioner is also carrying on dairy business would not make a difference in the user and the nature of the accommodation in question, which is in the occupation of the tenant. The learned counsel further submitted that the bonafide need of the landlady was apparent and that the landlady cannot be forced to split his family and live in two separate accommodations. It was urged that the landlady had a certain kind of a lifestyle in which she was residing and it would not be possible to curtail her living standard by converting the drawing room or the living room into another bed room for the additional requirement of the family members. The learned counsel further submitted that not only the tenant had acquired 6 another accommodation in the same municipality which debars him from raising the plea of comparative hardship, even otherwise, the tenant did not search for any other alternate accommodation and, consequently, the benefit of Rule 16 of the Rules could not be extended in favour of the tenant. Having heard the learned counsel for the parties, the Court has to consider whether the explanation to Section 21 (1) (a) of the Act is applicable in the present facts and circumstance of the case or not ? From a perusal of the application u/S 21 (1) (a) of the Act and the written statement of the tenant and the affidavits filed by the parties, one gets to know about the nature of the building in question. The building is located on the main road of Landour Bazar in Mussoorie. The landlady is residing in four rooms on the first floor and contends that the petitioner/tenant is occupying the ground floor for his residential purpose in which he had made additions and alterations. The tenant also admits this fact, namely, that he is using the ground floor for his residential purposes but further submits that in a portion of this accommodation, he is also using it for his non-residential purpose, namely, that the tenant is also carrying on a dairy business. The tenant in his affidavits has nowhere indicated with clarity or with precision as to which portion of the accommodation, which he is occupying, is being used exclusively for business purposes. The affidavits only indicate that the petitioner is using the accommodation for residential as well as for business purposes. Taking the entire matter into consideration, an irresistible conclusion is drawn that the building in question is a residential building which is primarily being used for residential purposes both by the landlady who is residing on the first floor and the tenant who is residing on the 7 ground floor and, in the ground floor, the tenant is also carrying on his business. This Court finds that the petitioner’s family had acquired residential and non-residential accommodation in the same municipality prior to the filing of the release application. The acquisition of various properties is admitted by the petitioner/tenant. Consequently, the explanation to Section 21 (1) (a) of the Act is squarely applicable. For facility, the said provision is extracted hereunder:- “21. Proceedings for release of building under occupation of tenant. – (1) The prescribed authority may, on an application of the land-lord in that behalf, order the eviction of a tenant from the building under tenancy or any specified part thereof if it is satisfied that any of the following grounds exists namely – (a) that the building is bona fide required either in its existing form or after demolition and new construction by the landlord for occupation by himself or any member of his family, or any person for whose benefit it is held by him, either for residential purposes or for purposes for any profession, trade or calling, or where the landlord is the trustee of a public charitable trust, for the objects of the trust;” Explanation. – In the case of a residential building:- (i) where the tenant or any member of his family [(who has been normally residing with or is wholly dependent on him)] has built or has otherwise acquired in a vacant state or has got vacated after acquisition a residential building in the same city, 8 municipality, notified area or town area, no objection by the tenant against an application under this sub- section shall be entertained; [Note. – For the purposes of this clause a person shall be deemed to have otherwise acquired a building, if he is occupying a public building for residential purposes as a tenant, allottee or licensee.] A perusal of the aforesaid provision indicates that where the tenant or any member of his family who has been normally residing with him has built or otherwise acquired in a vacant state a residential building in the same city or municipality, in that case, no objection by the tenant against the application under Section 21 (1) (a) would be entertained. In Jagdish Kumar Vs. Sri Ramesh Chandra Sharma, [2007 (1) ARC 375], the Court held that where the petitioner/tenant had acquired alternate accommodation, irrespective of the fact whether it was acquired prior to filing of the release application or thereafter had no legal right to continue in possession of the disputed accommodation in question nor could object to the bonafide need and comparative hardship in the application filed for the release of the accommodation in question. In the light of the aforesaid, the court finds that the petitioner cannot object to the bonafide need and comparative hardship in the release application filed by the landlady. Nonetheless, the landlady has to prove the bonafide need for the release of the accommodation. In the present case, admittedly, the four rooms in the accommodation of the landlady were being used by the family members. Two rooms were being used as a bedroom, one room for the landlady and one room for her son and daughter-in-law. The other two rooms were being used as a drawing room and a dining room. The landlady had a grandson 9 who was 15 year old and an additional room was required for the growing need of the grandson. The landlady was 73 years old at the time when the release application was filed. She had arthritic problem and contended that it was difficult for her to climb the stairs leading to the first floor. The requirement indicted in the release application, in my opinion, was bonafide and genuine. The lower appellate court was justified in reversing the findings of the Prescribed Authority in holding that the rooms in accommodation of the landlady was insufficient. The Supreme Court in Shamshad Ahmad and others Vs. Tilak Raj Bajaj (deceased) Through L.Rs. and others, 2009 (1) U.D., 113 held that the lifestyle which the landlords were living cannot be curtailed and the accommodation which the landlord were utilizing could not be adjusted to meet the additional need for the family members of the landlords. In the light of the aforesaid, the Prescribed Authority committed an error in holding that the four rooms which included the drawing room and the dining room was sufficient for the additional need of the landlady. The lower appellate court was justified in setting aside the finding of the Prescribed Authority. This court, after considering all aspects of the matter, finds that the need of the landlady was genuine and bonafide and the accommodation in question was liable to be released. Even though, the comparative hardship is not required to be considered nor can it be objected by the tenant in view of the explanation to Section 21 (1) (a), nonetheless, the court finds that the petitioner having acquired vacant accommodation could not object to the comparative hardship. Even though, it is alleged that the accommodation which the tenant had acquired, had now been transferred, nonetheless, no averment has been made that the 10 petitioner was unable to find an alternate accommodation. In the absence of such averment being made, the benefit available under Rule 16 of the Rules cannot be granted to the tenant, rather, the benefit tilts in favour of the landlady. In the light of the aforesaid, this Court does not find any error in the impugned order passed by the lower appellate Court. The writ petition fails and is dismissed. In the circumstances, the parties shall bear their own cost. (Tarun Agarwala, J.) Dated 21.07.2010 Shiv