IN THE HIGH COURT OF UTTARAKHAND, AT NAINITAL. Writ Petition No. 349 of 2004 (M/S) Satish Kumar Aggarwal and another… Petitioners. Vs. Prescribed Authority Roorkee, District Haridwar, and others … Respondents. Sri S.K. Posti, learned counsel for the petitioners. Sri V.K. Kohli, Senior Advocate, assisted by Sri Arvind Vashist, learned counsel for the respondents. Dated: April 24, 2008 Hon’ble B.C. Kandpal, J. By way of this writ petition, under Article 227 of the Constitution of India, the petitioner has sought a writ, order or direction in the nature of certiorari quashing the judgments dated 8-3-1995 and 16-2-2004, contained in Annexure Nos. 1 and 2 to the writ petition, passed by Prescribed Authority/ Munsif Roorkee, District Haridwar, in P.A. Case No. 3/88, and the District Judge, Haridwar, in Rent Control Appeal No. 31/95, respectively. 2- The facts of the petition in nutshell are that the petitioners are the landlords and the respondent No.3 is the tenant of the disputed residential house situated at Roorkee. For the bonafide, genuine and pressing need of the petitioner No.1, application under Section 21 (1A) of the U.P. Act No. 13 of 1972, was filed for the release of the accommodation, which was numbered as P.A. Case No. 3/1988 before the Prescribed Authority/ Munsif Roorkee. Petitioner No.1 was serving in the U.P. Irrigation Department. After retirement from the service on 31.1.1993, application was amended taking the plea 2 that petitioner No.1 had retired on 31.1.1993 and he had to vacate the public premises allotted to him during the service. The respondent No.3 filed written statement as well as additional written statement after the amendment in the release application. The Prescribed Authority/ Munsif vide impugned judgment dated 8-3-1995 had rejected the application of the petitioner and there after the appeal filed before the District Judge, Haridwar, which was also dismissed vide impugned judgment dated 16.2.2004. 3- The petitioners have alleged that both the courts below have committed patent error of law by rejecting the application ignoring the provisions of Section 21 (1-A) of U.P. Act No. 13 of 1972 in view of the admitted fact that petitioner No.1 was serving in Irrigation Department and had retired from the Government service on 31.1.1993 and having retired he had to vacate the public premises allotted to him while in service. It is also alleged that after retirement from service the petitioner No.1 is living with his sister and brother under compulsion, hence the application under Section 21(1-A) of the Act must have been allowed. 4- The respondent No.3 filed counter affidavit alleging therein that the petitioner No.1 is permanently residing at 109, Meerpur Cantt. District Kanpur, U.P which is owned by his wife. The petitioner and his sons are permanently settled there and are established in their business and profession comfortably. It is also alleged that the another flat in the building in dispute was allotted to Sri Sarvesh Kumar Gupta, A.P.O. during the pendency of release proceedings. The accommodation was earlier in the tenancy of Vipin Kumar who vacated the same and thereafter the landlord 3 did not take any steps for release of the aforesaid property. The allotment order was half-heartedly challenged belatedly by filing a revision which too was dismissed and ultimately the said accommodation was allotted to Sri Sarvesh Kumar Gupta. During the pendency of release preceding the landlord executed a sale-deed in favour of Devendra Giri relating to residential property situated just in front of disputed property. It was further pleaded that a P.A. Case No. 2/88 against his tenant Ajab Singh was also filed by petitioner/landlord in which release application was allowed and thereafter the rent appeal filed by tenant was allowed by the District Judge, but subsequently in a writ petition No. 3166(M/S) of 2005 filed by petitioner/landlord, the need of the petitioner was considered to be bonafide by this Court and the writ petition was allowed. The Prescribed Authority and the appellate authority after perusing the record have found that the petitioner’s need in the instant case is not bonafide, that in view of concurrent findings of fact, the petition is liable to be dismissed. 5. The petitioners also filed rejoinder affidavit alleging therein that the three rooms were got released by the petitioner for the need of son Avdesh Kumar, but he could not shift there because of the open land in front of released accommodation, illegally grabbed by the respondent No.3, therefore, the purpose of release of accommodation in favour of son could not be materialized as Avdesh Kumar wanted to start his business of shuttering and channel gate manufacturing in that open place. The property in front of disputed property was also grabbed by some one and it was ultimately, under compelling circumstances, sold by petitioner to one Devendra Giri. The petitioner was only 4 owner of open land which was sold by him. It is also averred that the respondent No.3 has grabbed one big property of Tilak Raj Ownwala which is adjacent to the present house in dispute and numbering 172 and has constructed a house with the name of Rani Chaudhary. It was also alleged that the respondent No.3 from the date of possession till date has not paid even single penny to the petitioner. 6- I have heard the learned counsel for the parties and have gone through the record. 7- Learned counsel for the petitioner has submitted that the petitioner was employed in service and he was required to vacate official residence on cessation of his employment, hence the Courts below were not required to determine as to whether need set up in application filed under Section 21 (1-A) of the Act, is bonafide or not and the courts below have committed error of law in not allowing the application of the petitioner. 8- The learned counsel appearing on behalf of the respondent has submitted that the petitioner has other accommodation to live, therefore, the courts below have rightly rejected the application of the petitioner U/S 21 (1-A) of the Act. 9- At the outset it is pertinent to mention here that the petitioner has filed the application U/S 21(1) of the Act before the Court on 10-1-1998. According to the petitioner at that time he was posted at Pauri Garhwal. The first ground taken in the said application was that he will be posted at Roorkee in the next year, i.e. 1989, therefore, he has the need of the disputed house for 5 himself as well as his family members. The second ground mentioned in the said application was that the petitioner has to retire on 31-1-1993 and the government accommodation, provided to him will have to be vacated by him. After his retirement, amendment was made in the application to the effect that he has retired on 31.1.1993 and he has to vacate the government accommodation, hence the disputed property, of which he is landlord, be released in his favour under the provisions of Section 21 (1-A) of the Act. 10- Against the application filed by the petitioner, the tenant/respondent has filed objection and alleged that the landlord is owner in possession of a residential building in Jwalapur, Haridwar. Besides this his wife also owns a building at Meerganj, Kanpur, his all the children have settled and the petitioner has no bonafide need of the disputed property. He wanted to dispossess the tenant due to malafide and to cause great hardship to the tenant. He also alleged that his two children are studying at Roorkee and his parents are also residing with them. His mother is suffering from the ailment of cancer and living her last days of her life. 11- The trial Court has recorded a finding that under the provision of Act No.13 of 1972, the disposal of this type of application should have been made within two months, but the same has not yet been disposed of, therefore, the first ground taken in the said application pertaining to bonafide need of the petitioner and his family members on the ground of his being posted at Roorkee, has become invalid, as the petitioner now has retired on 31-1-1993. Therefore, the trial Court has decided the application under Section 21(1-A) of the Act, as to whether the disputed property can be released in 6 favour of the petitioner on the ground that he has retired on 31.3.1993 and he has to vacate the government accommodation and reside in the disputed property. 12- It is true that while disposing of the application U/S 21(1-A) of the Act, the Court is not required to determine as to whether need set up in application is bonafide or not. In such a case the likely hardship which the tenant might suffer by the grant of application for release is to be considered. 13- Now it is to be seen as to whether the petitioner after his retirement has other accommodation to reside or not. It has come on record that the properties including the disputed one, have been divided amongst the petitioner and his brothers. Partition deed paper No. 21 was filed before the trial Court and according to the said deed the properties including the disputed one, have been divided amongst the petitioner and his brothers. Here it may also be mentioned that the petitioner along with his one of the brother, Jitendra Kumar, has preferred the application before the trial Court for release. The trial Court has discussed the point in detail and has rightly come to the conclusion that if there has been partition between the brothers, then there was no need of the applicant Satish Kumar Aggarwal and his brother Jitendra Kumar to file joint application for release of the house. Further these applicants have not specified their share in the disputed property in the release application. On the other hand their assertion pertaining to the property situated at Kanpur is that they are owner of four rooms each. Therefore, there was no question of joint ownership over the disputed property as the other properties have been divided amongst these two brothers. Had the disputed 7 property been joint property then the release application should have been filed on behalf of all the brothers and not only by the applicants. The above fact also indicates that the petitioner has not come up before the trial court with clean hands for release of the house in his favour. 14- The applicant has admitted that he has a double-storied residential building at Jwalapur but has alleged that in this building tenants are living from before. But the applicant has not disclosed the names of those tenants before the trial Court and this fact clearly indicates that the applicant has another house to reside. 15- The petitioner also took the ground that he often remain ill and wanted to live at Roorkee, where better medical facilities are available. The son of the petitioner himself is a doctor and does private practice at Kanpur. Another son of the petitioner also resides at Kanpur doing job in some Medical Store and the other two sons also reside at Kanpur and run the shop in the name and style of “Aggarwal Traders”. At Kanpur petitioner’s wife has her own house and in the above circumstances the petitioner can comfortably reside at Kanpur with his family members. 16- The respondent/tenant in paragraph-8 of his counter affidavit has also mentioned that another flat in the building in which the flat in dispute is situated was allotted to Sri Sarvesh Kumar Gupta, A.P.O. during pendency of release proceedings. The accommodation was earlier in tenancy of Vipin Kumar who vacated the property and thereafter landlord did not take any steps by filing any revision against the rejection of release order passed by Prescribed Authority with regards to the disputed property. The order of allotment was half 8 heartedly challenged, belatedly, by filing a revision which too was dismissed and ultimately the said accommodation was allotted to Sri Sarvesh Gupta, thus the aforesaid fact clearly indicates that the petitioner in fact is not in need of any residential accommodation for him. Along with counter affidavit allotment order dated 28-5-1994, Annexure-IV has been filed, which shows that petitioner’s application was rejected and the petitioner did not challenge the same in higher court, hence the vacant accommodation was allotted to Sri Sarvesh Kumar Gupta, A.P.O. In reply to this paragraph 8 of the counter affidavit the petitioner in his rejoinder affidavit has given an evasive reply that the same need no reply as the petitioner sought release of accommodation occupied by Sri Vipin Kumar but the authority did not release the said accommodation in favour of petitioner. Further perusal of order dated 28-5-94 contained in Annexure-IV to the counter affidavit reveals that neither the petitioner nor his Advocate was present before the S.D.M. to contest the application inspite of sufficient information. The learned S.D.M. in this order also made a mention that after rejection of the release application of the landlord no steps were taken to file revision and the intention of the landlord is to delay the hearing. In above facts of the case, it is quite clear that the landlord has not taken effective steps to contest the rejection of his release application by filing revision before the competent court within prescribed period of limitation. 17- In addition to above, it may also be noted that the applicants/petitioner also filed release application for the house situated in first floor of the disputed property, which was allowed by the Prescribed Authority, against which Ajab Singh brother of the respondent filed appeal before the District Judge, Haridwar, which was allowed 9 vide judgment and order dated 24-9-1994 and in that judgment the learned District Judge has given clear cut finding that the applicants have no need of house in the first floor of the building. Against the said order of the District Judge, the petitioner filed Civil Writ Petition No. 3166 of 2001 (M/S) and the learned Single Judge of this Court vide judgment and dated 12-9-2005 has allowed the petition and released the house in favour of the petitioner and his son for residential purposes as is evident from Annexure –VII to the counter affidavit, filed by the respondent/tenant, which is copy of the judgment dated 12-9-2005 delivered by this Court in the aforesaid writ petition. 18- With regard to above vacated property the respondent/tenant in paragraph 20 of his counter affidavit has mentioned that the petitioner has not yet taken possession of property got vacated during proceedings filed against answering respondent’s brother. The Prescribed Authority issued warrant of possession on 15.3.2007 and yet the petitioner had not taken possession of vacated property. Copy of order dated 6-4- 2007 passed by Civil Judge (S.D.) Roorkee has been filed as Annexure-11 to the counter affidavit. Perusal of the above order, contained in Annexure-11, shows that in compliance of order dated 11-9-2005 passed by the learned Single Judge of this Court, the possession of the released house has been handed over to the landlord. 19- Learned counsel for the petitioner in support of his case, also cited before me the following case laws and contended that in view of the observations made in these cited cases, the disputed property is liable to be released in favour of the petitioner: 10 (i) United India Insurance Company Ltd. Lucknow Vs. Sri Zafar Ibrahim and others, reported in [2004 (2) ARC 380]. (ii) Shyam Sunder Lal Sharma Vs. II Additional District Judge, Haridwar and others, reported in A.R.C. 1998(2) 606. (iii) Victor Singh Chauhan Vs. District Judge, Dehradun and others, reported in A.R.C. 1997(2) 21. 20- I have gone through the above cited cases. In the case mentioned at serial No.1 the factual position was that the landlord had no other accommodation which he could occupy as of right while the facts in the instant case are that the landlord/petitioner had various opportunities to occupy the premises to live but for the reasons best known to him he did not make any effort to occupy the accommodations as I have already referred in the previous paragraphs. 21- Further the ruling mentioned at serial No.2, also does not apply to the facts and circumstances of the present case, as I have already indicated in the previous paragraphs that the landlord got several chances to occupy the accommodation to live but he did not do so. 22- The ruling noted at serial No.3 above, also does not apply here, as the facts in the cited ruling are that landlord had to occupy the alternative accommodations either on rent or as licensee while in the instant case the landlord did not occupy the released accommodations to live for the reasons best known to him. Therefore, the landlord cannot get any benefit on the basis of his own non-action for occupying the released and vacant houses owned by him. Therefore, all 11 the rulings cited by the learned counsel for the petitioner do not help him in any manner. 23- Now it is to be seen that by allowing or disallowing the release application, which of the party will be put to greater hardship. 24- Learned counsel for the petitioner has argued that the respondent/tenant has grabbed a big property of Tilak Raj Ownwala which is adjacent to the present house in dispute. It has also been submitted that the tenant has constructed a house in the property grabbed by him, therefore, the tenant has an accommodation to shift in that house and he can easily vacate the house in question. 25- The argument advanced by the learned counsel for the petitioner is of no avail, as Annexure-1 filed along with rejoinder affidavit, shows the name and address of the owner and agent, if any, “ Tilak Raj Ownwale”. In case if for the sake of the argument, it is considered that the tenant has grabbed a property, even then it cannot be said that the tenant has occupied the property of “Tilak Raj Ownwale” in a legal capacity. Therefore, it cannot be presumed that the tenant has an alternative accommodation available with him. 26- The contention of the respondent/tenant is that his son and daughter are studying in class 11th and 8th respectively at Roorkee and they reside in the tenanted house and his old parents also use to live with them. His mother is suffering from the ailment of cancer and is living her last days of life. 12 27- In view of above discussion, I also come to the conclusion that the petitioner has alternate arrangement to reside after his retirement and if the disputed house is released in favour of the petitioner, greater hardship would be caused to the respondent/tenant. I find that the Courts below have rightly rejected the release application of the petitioner and I do not find any ground to interfere in the concurrent findings arrived at by both the courts below. 28- The petition thus lacks merit and is liable to be dismissed. 29- Accordingly, the petition is dismissed. The impugned judgments and orders passed by the courts below are hereby confirmed. (B.C. Kandpal, J.) ISB 13