RESERVED IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL WRIT PETITION NO. 25539 OF 2000-old number Writ Petition No. 3688 (M/S)/2001-new number Smt. Pushpa Karki and others…………… Petitioners. Versus District Judge Almora and others …………………. Respondents. Hon’ble M.M. Ghildiyal, J. Present writ petition has been filed against the order passed by he learned District Judge Almora dated 3.5.2000 by which he has allowed the appeal in respect of ‘Shyam Lal House’ and direction has been given to vacate the premises. Heard Sri V.K. kohli learned counsel for the petition and Sri V.K. Bist learned counsel for the respondent. The brief facts are that an application U/s 21(a) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act (13 of 1972) was filed by the owners who are widow of late Col. Sri C.B. Shah and his daughters. The release was sought on the ground that Lt. Col. C.B. Shah dies on 3rd November 1986 while in service in Kumaun Regiment at headquarter 15 Corps 56 A.P.C. After the death of her husband the family consisting of his wife and daughters became homeless and at present the land-lady is forced to reside at Nainital. The petitioners have filed written statement and have admitted that the land lords are co-owners of the premises in question but have denied that there is any need to the landlords. The learned prescribed Authority rejected the application. Aggrieved by the aforesaid order of the prescribed authority the landlord went in appeal. The Appellate court has allowed the appeal and passed the decree for eviction. Aggrieved by the order of appellate court the present writ petition has been filed by the tenant. The writ petition was filed being writ petition No. 36462/99 in the High Court of Allahabad and the itnerim order was granted by the Allahabad High Court. During the pendency of the writ petition before Uttaranchal High Court an order was passed on 19-2- 2002 to the following effect. “Heard Sri Pankaj Purohit learned counsel for the petitioner and Sri V.K. Bisht learned counsel for the respondent. Stay order granted earlier is vacated.” The parties approached to the Hon’ble supreme Court and the Hon’ble Supreme Court on 15.3.2002 stayed dispossession of the petitioners. When the matter came up for final hearing the Apex Court has passed the order to the following effect on 19.8.2002:- “Learned Counsel appearing for the parties state that the parties have entered into a compromise and the order is to be passed by the High Court on 26th August 20022. In view of the said statement, this petition does not survive for decision. The special leave petition is disposed of accordingly.” Learned counsel for the respondent has filed an affidavit on 3.4.2003. In para no. 2 of the affidavit she has submitted as under:- “That on 3.12.2002 the Hon’ble Court asked the counsel for the parties to file an affidavit about statement made before the Hon’ble Supreme Court about compromise between the parties. In this regard it is submitted that the answering respondents had never instructed their counsel to make such statement before the Supreme Court. The deponent has been informed by their counsel at Supreme Court that no such statement was made by them before the Hon’ble Supreme Court.” The writ petition after the aforesaid order was passed, was heard at a great length and both the parties have filed supplementary counter and written arguments as well as supplementary affidavits, supplementary counter affidavits, rejoinder affidavits. Learned counsel for the petitioners has challenged the order on the ground that the learned appellate court has not considered the partial release of the accommodation. He has further submitted that the other ground for challenging the order is that the learned prescribed authority had rejected the memorandum of partition which is alleged to have taken place between the family members of the respondents orally yet the learned appellate court without any basis has up set the findings of the learned prescribed authority. The learned counsel for the petitioners has submitted that the need of the respondents is not bona fide and in any case her need can be satisfied by releasing the part of the accommodation in her favour. Admittedly, the husband of the petitioner Sri C.B. Shah was a military personnel who died on 3rd of November 1986. Therefore according to the owners-landlords they are entitled for special protection under the provisions of U.P. Act No. 13 of 1972. The provision with regard to that is quoted below:- “(1)…… (2) a widow of such a soldier and such buildings was let out at any time before the retirement or death of her husband whichever, occurred earlier and such landlord needs such building for occupation by himself or the members of his family for residential purposes, Then his representation that he needs the building for residential purpose for himself or the members of his family shall be deemed sufficient for purpose of clause (a) and where such landlord owns more than one building this provision shall apply in respect of one building only.” Another development has taken place during the pendency of the case in the joint property of the owners making an oral family partition between co-owners. A memorandum of partition was prepared on 19- 12-1995 which is paper No. 58-C. By this partition house known as “Shyam Lal House” situated over plot Nos. 3187, 3188, 3189 and the corner house situated in plots 3130, 3132, 3133, and 3134 came to the share of late Col. C.B. Shah. Thus the requirement of the landlord can be looked into from the point of two fold (1) She being the widow of a soldier, her need shall be deemed to be sufficient for the purpose of clause (1) of Section 21(a) (2) further the requirement of the family of Col. C.B. shah being bona fide and genuine as the house in dispute i.e. Shyam Lal House which has come in her share by virtue of family partition, she is entitled to get release of the house accommodation for her own requirement. In the supplementary affidavit the petitioners have mentioned the following accommodation available at the disputed house. Ground floor: 6 rooms, one Verandah, 2Baths, Courtyard First Floor: A big Hall The petitioners have prayed this Court may consider the partial release of the accommodation. The supplementary affidavit was replied by filing a supplementary counter affidavit by disputing that there are 6 rooms. However in para-4 of the supplementary counter affidavit it has been stated by the landlords as under:- “The entire property of the father of the deponent late D.L. Shah, was bequeathed to the brothers of the deponent namely Late lalit C. Shah and Sri Anil Shah by way of Will. Nothing was given to the deponent by the way of this Will. On the basis of this will probate/Letter of Administration was granted by the court and accordingly entire property of the father of the deponent was mutated in the names of the brothers of the deponent. The deponent is living in the house of his brother in compelling circumstances as her house ‘Shyam Lal House’ was not vacated by the petitioners. Recently the brother of the deponent, Lalit C.Shah, with whom she was residing has also died and now her need of the accommodation in question has become more acute.” Further in para-6it has been stated- “that the deponent is a widow and her daughter and son in law after come and stay with her and look after her whenever required and would further like to stay with her. Also the younger daughter of the deponent often comes and stays with her. Looking at the family background and social status of the deponent and her family members, the deponent requires at least four rooms for herself and her daughters.” In para-7 of the supplementary affidavit the respondents have stated that- “The accommodation in question comprises four rooms which were bona fidely required by the deponent and her daughters. Since the entire house was required bona fidely by the deponent there was no need to place any plan of accommodation before the court below. Moreover this objection was never raised by the petitioners before court below and same cannot be raised at this stage.” The counsel for the respondents have father argued that the husband of the deponent late Sri C.B. Shah was Lt. Col. Had he been alive he would have at least reached the rank of Brigadier/Major general. With regard to the social status it has been stated in para-11, the same is incorporated as under:- “It is stated that while considering the requirements of personal occupation by the answering respondents the social status of the answering respondents should also be considered. The husband of the deponent, Late C.B. Shah was infantry Lt. Col in Kumaun regiment and died in 1986 at the age of 46 years while in service. Had he been alive he would have at least reached the rank of Brigadier/Major general. The father of the deponent, Late D.L. Shah was Chief Conservator of Forest, U.P. when he retired in 1956, which was the highest post in the Forest Department of a State. The brothers of the deponent were Engineer in the Hydel department and vice-president, State Bank of India, America, respectively. The father in law of the deponent Late Sajjan Lal shah retired as civil and sessions Judge, U.P. the brother in law of the deponent Late Dr. M.B. Shah was professor and head of economics department, Government P.G. College Gopeshwar.” It is a case where the respondent No. 3 is living in the house of her brother with the mercy of brothers family members. The documents of the Nagar Palika also forms part of the counter affidavit of Late Shah where the municipal documents have been filed showing that she has. no concern with the property at Nainital. Relevant documents of the Municipal board showing that Smt. Lata Shah the wife of Col. C.B. Shah has no house property at Nainital. Documents dated 13.11.97, 24.11.97 forms part of the record of the counter affidavit filed by the owner. There is also n the record that the house at Nainital has been purchased by the brothers of Smt. Lata Shah after the death of the father of the deponent. The sale deed to that effect dated 28.6.1081 forms part of the record of the supplementary affidavit-III. The learned prescribed Authority has illegally rejected the memorandum of partition as he has no jurisdiction to go into genuineness of the family partition. The Appellant Court has rightly therefore set aside the findings. The release application was filed as far as back in July 1989 and till today the proceedings are pending and no efforts have been made by the petitioners to arrange for an alternative accommodation. So far as family partition is concerned it has been held in 1992(II) ARC page 241 that the family partition cannot be disbelieved by a tenant and it does not require any registration. With regard to the social status it has been held in 1981 A.R.C. page 371 as under:- “It may be that the members of the family of the landlord may be very few but yet according to their status it may be necessary for them to have a larger accommodation to live comfortably but this by itself will not deny them a right to move an application for release.” So far as releasing the part of the accommodation looking to the social status and social requirement it is not possible to release the part of the accommodation as the four rooms are hardly sufficient to cater the requirement of the family. The family is also grown up. The daughter’s husband will be also visiting there. In K.K. Srivastava V. VI A.D.J. Allahabad 1985 (2) Page 271 it was held that married daughters, son in law and sons residing out side could not be ignored in considering the question of bonafide requirement of these persons, usually come and stay with the head of the family. No such point was raised either in the written statement before the Prescribed authority or before the appellate authority but looking to the social status of the family members it is not possible to release the part of the accommodation. It has been held in Narayan sibngh vs. Special Jduge Nainital 2000 Vol. I A.R.C. page 483- “It may be relevant to mention here that as per the case of the landlady, her need was for the entire ground floor accommodation which included the portion in the tenancy of the petitioner as well the portion in the tenancy of the petitioner as well as the portion occupied by another tenant Smt. Kukreti. Therefore, it cannot be said that her need stood exhausted on account of her getting possession of the portion vacated by Smt. Kukreti. The landlady belongs to a respectable family of a retired Naval Officer of high rank and the family members of the landlady were used to a high standard of living. The court has further held that the question whether the need is bona fide or not is to be answered on the facts of each case and no strait jacket formula for distribution of accommodation on the basis of number of family members alone can be laid down. Every landlord is entitled to a reasonably decent and comfortable living. Therefore, the need of accommodation may vary from person to person. There may be a landlord with a low social strata who may manage to live in a small accommodation without having spate drawing room, dining room, guest room, toilets etc. whereas persons of high social status and specially those who have served on high positions may find it not only difficult but impossible to cramp themselves in such an accommodation and they may require a bigger accommodation to suit their requirement.’ In Anand Swaroop Goel vs. IX Addl. District Judge ARC 1993(1) similar question came up for consideration before the High Court Allahabad. It was held as under:- “It was then submitted that the two authorities below committed manifest error as they did not proved to consider whether the need of the landlord could be satisfied by releasing only a portion of the accommodation in question instead of the entire accommodation. This is a factual matter and should have been placed by the petitioner before the two authorities below. When the petitioner did not make any assertion of this nature, inference that can be drawn is that either the accommodation in question is not capable of apportionment or the petitioner does not desire it. Even if it as were to consider the question of apportionment, I find that in view of the size of the petitioners family the entire accommodation in possession of the petitioner will be required by the landlord….” Similar view has been taken that land lady who is living with the mercy of her brother has got a genuine and bonafide need A.R.C. 1992 Vol-1 page 18 and 22. So far as the wife of the military personnel is concerned a view has been taken in 1995 A.L.J. page 1897 it has been held as under:- “There is no denial that the petitioner was an Indian Soldier as defined in Indian Soldiers (Litigation) Act, 1925 because under the Act even Air Force personnel are covered by the said Act. Hence the petitioner is entitled to the benefit of Explanation (iii). Under the said Explanation, the representation of soldier that the needs the building for his residential purpose for himself or his members of his family shall be deemed to be sufficient for the purpose of clause(1) hence the Explanation (iii) is a deeming provision which prescribes that if an Indian soldier an Indian Solider filed an application U/s 21(1) his bona fide need will be presumed to exist and he does not have to prove such need. Moreover the fourth proviso to section 21(1) states that where a case is covered by the Explanation the comparative hardship of the tenant has not to be taken into consideration. Thus a perusal of the provisions of section 21 shows that certain benefit has given to soldiers as defined under the Act and they do not have to prove either their bona fide need or that their need is greater than that of the tenant. Both these requirements are presumed to exist by legal fiction created by Explanation (iii) and the 4th proviso to Section 21, Obviously the intention of the legislature was to give a benefit to soldiers since they are defending the country at the risk of their lives.” Even assuming the partition between the family members is ignored, it is well established that there any property is required by one of the co-owner each member has interest in every inch of the common property. The observations of the Apex Court in the case of 1967 S.C. Mool Chand v. State of U.P. Page 109 is as under- “It is doubt true that under the law every co owner of undivided property is entitled to enjoy the whole of the property and is not liable to pay compensation to the other co owners who have not chosen to enjoy the property. It is also true that liability to pay compensation arises against a co owner who deliberately excludes the other co owners from the enjoyment of the property. It does not, however, follow that the liability to pay compensation arises only in such case and no other. Co owners are legally competent to come to any kind of arrangement for the enjoyment of their undivided property and are free to lay down any term concerning the enjoyment of the property. There is no principle of law which would exclude them from providing in the agreement that those of them as are in actual occupation and enjoyment of the property shall pay to the other co owners compensation. No authority was cited by the learned counsel in Support of his contention that ouster of a co owner is a sine qua non for enabling him to claim compensation from the co owner who is in occupation and enjoyment of common property. We, therefore reject the contention.” The release application was filed in the year 1989 but no efforts were taken by the tenant to search out any other accommodation and therefore both bonafide need and comparative hardship lies in favour of the landlords. In view of the above I find no merit in the writ petition and the same is dismissed. However the petitioners are allowed six months time to vacate the premises subject to the undertaking given on affidavit before the Prescribed Authority within three weeks from today. (M.M. Ghildiyal, J.) Dated: September 05, 2003 MPS