HIGH COURT OF UTTARANCHAL AT NAINITAL (Court’s order whether the case is or not approved for reporting.) (Chapter VIII Rule 32 (2)(b) Description of the Case. W.P.No. 991 of 2003.m.s Mahendra Singh Bedi Vs Additional District Judge Fast Track Court IV Haridwar And others Approved for reporting. ______________________ Not approved for reporting Date of decision 29.9.2004 Initial of Judge Reserved IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL Writ Petition No. 991 of 2003 (M/S) Mahendra Singh Bedi ………. Petitioner Versus Additional District Judge/ Fast Track Court IV Haridwar and others ………... Respondents …………. Mr. Arvind Vashistha, learned counsel for the petitioner Mr. B.S.Adhikari, learned counsel for the respondents. Hon.Rajesh Tandon , J. By the present writ petition, the petitioner has prayed for a writ of certiorari quashing the order passed by the Prescribed Authority dated 28.02.2001 as well as Appellate Authority in Rent Control Appeal No. 26 of 2001 dated 21.8.2003. Factual Matrics of the Case Briefly stated, an application was filed the landlord Mali Ram Pande under section 21 (1) (a) of the U.P. Act No. XIII of 1972 for release of the house situated at Lalkurti, Sub-Division Roorkee, district Haridwar, of which the petitioner is tenant @ Rs.20/- per month. Originally Sardar Jaswant Singh Bedi was the tenant of the premises, who expired on 10.05.1997 leaving behind his son Mahendra Singh Bedi, another son Tirath Singh Bedi and third son Ratan Singh Bedi. The two sons, namely, Tirath Singh Bedi and Ratan Singh Bedi have been impleaded as respondent nos.4 and 5 and Mahendra Singh Bedi alone has filed the present writ petition. Accordingly to the landlord- respondent no.3, the family of the landlord consists of the following members: (i) self (ii) B.N.Pande, son (iii) J.N.Pande, son (iv) V.N.Pande,son (v) Smt. Asha Manor, daughter (vi) Km. Geeta Pande, daughter (vii) Wife of B.N.Pande (viii) Three major sons of B.N.Pande, namely, Romil Pande, Rahul Pande and Sharad Pande (ix) Wife of second son J.N.Pande, (x) Two daughters of J.N.Pande, namely, Km. Shald and Km. Shagun (xi) Son of J.N.Pande,namely, Ankit Pande (xii) Wife of third son V.N.Pande (xiii) Two sons of V.N.Pande, namely, Ankush Pande and Anuj Pande. According to the application under section 21 (1)(a) of the Act No. 13 of 1972, the landlord has submitted that Sri B.N.Pande after retirement from the Indian Army has come to Delhi and is residing alongwith his family members. Sons of B.N.Pande are also residing alongwith the landlord. The family of J.N.Pande also comes and resides with the landlord. Sri B.N.Pande at present is accommodating with Sri J.N.Pande, but due to paucity of accommodation with J.N.Pande, it is not possible to cater the requirement of the family members. The daughter of landlord Km. Geeta is disabled. Two sons of Sri B.N.Pande are also studying in St. Xavier School. The landlord has stated in his application in para 6 that in house no. 106/107 situated at Lalkurti, there are only four rooms and it is not possible to cater the need of family members in four rooms and only in one room Sri V.N.Pande and his wife are accommodated, one room is being used as drawing room, one room is meant for Km. Geeta and one room is meant for landlord. However, the grand-sons, namely, Ankuish and Anuj have no room for studying. Even the guests of B.N.Pande have no place to sit and looking the requirement of the family members, the need of the landlord is bona fide and comparative hardship also lies in his favour. The landlord has further stated that all the three sons of Sardar Jaswant Singh are well placed and Mahendra Singh Bedi has been provided accommodation from the department at house no. 15 MES colony, Lalkurti, Roorkee and he is residing there alongwith family members. The other son Tirath Singh Bedi had got his own house at house no. 562 Sanik Colony, Roorkee. He himself constructed the same. The third son Ratan Singh Bedi is also having his house at 614, Sainik Colony, Roorkee, which he has constructed 8 years back, where he is residing alongwith family members. Apart form the aforesaid house available to the petitioner, there is yet another premises being house no. 63 situated at Lalkurti, which has been locked by the petitioner and the petitioner has also got one vacant plot in front of Seventh Day School. The landlord has stated that after the dearth of Jaswatn Singh, petitioner and his sons never occupied the premises and they are residing in their respective premises, which are owned by them. The landlord has stated that the premises is being bona fide required by him. The petitioner has contested the application and has stated that the disputed house consists of two rooms of 10’ X 14’ and 8’ X 14’ and Mahendra Singh is residing in the premises. In paragraph 20 of the writ petition, it has been stated that in 15 MES colony, tow rooms are available, which are not sufficient for the family members. Paragraph 20 of the written statement is quoted below; 20. ;g fd oknh dk ;g dguk fd izfroknh eqftc ds ikl edku la[;k 15 ,e-bZ-,l- dkyksuh esa miyC/k gksus ds dkj.k izfroknh dsk iz”uxr vkokl dh vko’;drk ugh gS drbZ rkSj ij xyr gS bl vkokl esa dsoy nks dejs gSa rFkk izfroknh o mlds ifjokj rFkk mlds csjkstxkj csVs o mlds ifjokj ds fy, ukdkQh gS og fookfnr edku esa gh jgrk gS blds vykok izfroknh 31 tuojh 1999 dks lsok ds fuo`r gks jgk gS vkSj mls ;g vkokl [kkyh djuk gksxkA blfy, oknh dk ;g dguk fd izfroknh ds ikl mi;qDr iz;kIr LFkku fuokl gsrq gS] drbZ rkSj ij xyr gSA So far as the availability of the house as mentioned in the application under section 21 (1)(a) is concerned, it has been stated in reply to para 9 of the petition that he has got the house. So far as the Ratan Singh Bedi is concerned, it is stated that he has also got a house. Both the paragraphs are quoted below: ;g fd okn i= dk iSjk 9 esa izfroknh rhjFkflga dk edku lSfud dkyksuh esa gksuk Lohdkj gS] okdh Lohsdkj ugh gSA ;g fd okn i= ds iSjk u0 10 esa jruflag osnh dk edku lSfud dkyksuh :M+dh esa gksuk Lohdkj gS okdh Lohdkj ugh gSA An additional written statement has also been filed by the petitioner and in paragraph 8 and 9, it has been stated that his wife had constructed a house, and the petitioner has not good relations with her and the same is not covered under Act No. 13 of 1972. The landlord Mali Ram Pande has filed an affidavit and stated that all the three sons have constructed their house. The details are given in paragraph 10,11 and 12 of the affidavit: ;g fd eSa o gYQ c;ku djrk gwW fd ljnkj tloUr flag ds rhuks iq= tks fd okn esa foi{khx.k gS esa ls foi{kh la0 1 tks fd ,e-bZ0 ,l0 :Mdh esa ukSdjh djrk gS] dks foHkkx dh vksj ls edku u0 15 ,e0bZ0,l0 dkyksuh ykydqrhZ :Mdh esa edku miyC/k gS rFkk vius ifjokj ds lkFk edku u0 15 ,e0,Z0,l0 esa gh fuokl dj jgk gSA ;g fd eS ogyQ Ck;ku djrk gWw fd LoxhZ; ljnkj tloUr flag osnh ds nwljs iq= rhjFk flag osnh dk lSfud dkyksuh :Mdh esa viuk edku u0 562 gS tks mlus yxHkx 12 o’kZ iwoZ rkehj dj fy;k Fkk vkSj RkHkh ls mlesa fuokl dj jgk gSA eSa ogyQ c;ku djrk gwW fd ljnkj tloUr flg osnh ds rhljs iq= jru flg osnh dk Hkh lSfud dkyksuh :Mdh esa edku Uk0 614 gS ftls mlus yxHkx 8 o"kZ iwoZ rkfej fd;k Fkk vkSj jru flag Lo;a vkSj ifjokj ds lkFk vius rkehjlqnk edku esa fjgk;l dj jgsa gS In paragraph 16 of the affidavit, it has been stated that the wife of Mahendra Singh has also constructed a house at Dandera, Manglore, Link Road, Roorkee within three kilometers of Nagar Palika and as such he had no right to contest the application. Para 16 of the affidavit is being quoted below: ;g fd ogyQ o;ku djrk gwW fd foi{kh ,e0bS0 ,l0 dh lsokvksa ls lsokfuo`r gks pqdk gS vkSj mlus viuh iRuh ds uke MuMsjk exYkkSj fyx jksM ij :Mdh Ukxj ikfydk lhek ds 3 fdeh ds vUnj fufeZr dj fy;k gS ftlesa og viuh vkolh; vko’;drk, iwjh dj gjk gS vkSj fookfnr Hkou ds lEcU/k esa mls fdlh izdkj dh dksbZ vko’;drk ugh gSA Mahendra Singh Bedi, the petitioner has also filed his affidavit and has not disputed the availability of the house at 15 MES colony, Roorkee. The Prescribed Authority has allowed the application after considering the affidavits filed by the landlord as well as tenant on the question of bona fide need as well as comparative hardship. The Prescribed Authority has also come to the conclusion that the petitioner has constructed the house within 3 Kms. As will appear from the affidavit paper no. 27 and 29 i. e. affidavit of landlord and Ashok Kumar, paper no. 30 affidavit of B.N.Pande, rejoinder affidavit paper no. 52, the map submitted by the landlord paper no. 27 and the map by which the house has been constructed by the wife of the petitioner at 27/16, Photograph 27/17 and paper no. 28/18 to 27/20 sale-deed dated 8.2.1999, by which wife of the petitioner has purchased the property. On behalf of the petitioner, affidavit was filed that the relations of the petitioner are not good with his wife and the same has been constructed from the financial help of his sister Kulwant, but no evidence has been filed to that effect. The Prescribed Authority has referred two the sale-deeds. The Prescribed Authority has recorded the following observations so far as the property owned by the wife of the petitioner is concerned: Lo;a foi{kh la0 1 dh iRuh }kjk liFk i= esa foi{kh la0 1 ls] 10 o’kksZ ls vyx jguk crk;k gS blds vfrfjDr ;g mYys[kuh; gs fd fodz; foys[k 27@18 yxk;r 27@20 ftlds rgr Jherh gjpj.k dkSj ds }kjk oSukek ls xzke MuMsjk esa Hkwfedz; fd;k tkuk crk;k gS mlesa Jherh gjpj.k dkSj }kjk viuk fuokl LFkku 15 ,e0bZ0,l0 dkyksuh ykydqrhZ dk bUnjkt fd;k x;k gSA fofnr gks fd mDr o;ukek fnuakd 8-2-99 dk gS rFkk izLrqr okn fnuakd 8-10-98 dks lafLFkr fd;k gS A ;g Lo;a gh cMk fof=r yxrk gS tc fd ifr iRuh ds lecU/k vpNs gks rks Hkh og vius ifr ds fuokl djus ds LFkku dks cSukek vfHkys[k esa n’kkZrh gks tcfd Loa gjpj.k dkSj }kjk vius ifr ls 10 c"kskZ ls vyx jguk 47 liFk i= esa crk;k gS A ;gkW ;g Hkh mYys[kuh; gS fd Jherh gjpj.k dkSj }kjk ,d vU; IykV c"kZ 1992 esa dz; fd;k tkuk crk;k gS tks i=okyh ij 52@28 vfHkys[k ds :Ik esa ekStwn gS mlesa Hkh Jherh gjpj.kkdkSj }kjk vius fuokl dk irk 15 ,e0bZ0,l0 dkyksuh gh ntZ djk;k x;k Gs mDr nLrkosth lk{; bl rF; dh vkSj /;ku vkdZf"kr djrk gS fd Jherh gjpj.k dkSj vkSj foi{kh la0 1 lkFk lkFk gh fuokl djrs gSa vyx vyx ugh A blds vfrfjDr foi{kh ds }kjk fdlh vk/kkj ij vius ifjokj ds lnL; gksuk ugh ekuk gS] ;g Li"V ugh gS D;ksa fd ?kkjk 3 m0iz0 vjcu fcfYMx vf/k0 1972 ds rgr ifjokj dh ifjHkk"kk esa iRuh dk gksuk ekuk x;k gS tgkW rd ;g iz’u fd Jherh vjpj.k dkSj ds }kjk fufeZr vkokl tks fd xzke MUMsjk esa fLFkr gS :Mdh uxjikfydk lhek ds 3 fdeh dh lhek esa fLFkr gS dks fl) djus dk nkf;Ro foi{kh ua0 1 ij gSa A On the basis of the evidence on record, the Prescribed Authority has recorded a finding that the landlord required the premises for his use and occupation. So far as the comparative hardship is concerned, the same was also decided in favour of the landlord. The petitioner went in appeal and the Appellate Authority has dismissed the appeal by holding that the landlord requires the premises as he has got only four rooms with him, when in a point of fact the family member consists of Mali Ram Pande (respondent no. 3), his three sons, namely, B.N.Pande, J.N.Pande, V.N.Pande, his daughters,namely ,Smt. Asha Manor, Km. Geeta Pande, his daughter-in-law (wife of B.N.Pande), his grand- sons, namely, Romil Pande, Rahul Pande and Sharad Pande (three major sons of B.N.Pande), his daughter-in-law (wife of second son J.N.Pande), his grand- daughters Km. Shald and Km. Shagun (daughters of J.N.Pande), his grand- son Ankit Pande (son of J.N.Pande), his dauther-in- law (wife of V.N Pande), his grand-sons Ankush Pande and Anuj Pande (sons of V.N.Pande). So far as the comparative hardship is concerned, a finding has been recorded that the tenant had already constructed his house in the name of his wife within the Municipal limits of Nagar Palika and, therefore, he has no and in view of the fact that tenant has already constructed his house own and in view of the explanation to section 21(1)(a) of Act No. XIII of 1972, he is also debarred from raising the objection. The Prescribed Authority, however, has considered comparative hardship as well, the finding having been confirmed by the Appellate Court by observing that the petitioner has constructed his own house in the name of his wife, therefore, need as well as hardship lies in favour of the landlord. Both the Courts below have considered the bona fide need of the landlord and since the requirement has already been confirmed by the Appellate Court, the petitioner loses his right to object the release of the accommodation as he himself has constructed his own house. Applicability of Explanation Apart from the aforesaid, the explanation to section 21(1)(a) debars the tenant from contesting thd case on merit, in the event he had constructed his own house. Explanation to 21 (1) of the Act provides as under: Explanation: In thecase of a residential building- (i) Where the tenant or nay member of his family who has been normally residing with him or is wholly dependent on him has built or has otherwise acquired in a vacant state or has got vacated after acquisition a resdidential building in the same city, municipality, notified area or town area, no objection by tenant against an application under this subsection 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] (ii) omitted (iii) where the landlord of any building is- (1) a serving or retired Indian Soldier as defined in the Indian Soldiers (Litigation) Act, 1925 (IV of 1925), and such building was let out at nay time before his retirement, or (2) a widow of such a soldier and such building 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 buiding for residential purposes for himself or the members of his family shall be deemed sufficient for the purpose of clause (a) and where such landlord owns more than one building his provision shall apply in respect of one building only].” In the present case, although the Court’s below have considered the requirement of the landlord and both the Courts below have recorded a finding that the landlord requires the premises for use and occupation, the Prescribed Authority has also recorded a finding of fact with regard to the bona fide need and comparative hardship. The Appellate Authority after considering the bona fide need has recorded a finding that the petitioner has no right to take a defence as he had already constructed a house. In the case of Shanti Devi Vs. Ist Upper District Judge, Haridwar reported in 2000(2) Allahabad Rent Cases, 386 which has been confirmed by the Apex Court, it has been held as under: “Admittedly Sheel Chand was a tenant. He died during the pendency of the case leaving behind him Smt. Shanti Devi, his widow and two sons, Pramod Kumar and Rakesh Kumar. Pramod Kumar, son of the petitioner no.1 was allotted EWS flat and his family is residing therein. Respondent no.1 took the views that as one of the family members of the deceased tenant has acquired an accommodation in the same city, explanation referred to above is applicable in this case. Learned counsel for the petitioner contended that the explanation referred to above will be applicable only when two conditions are satisfied, namely, (1) that the member of the family who has acquired the accommodatin was residing with the tenant and (2) was wholly dependent upon him but both these conditions have not been satisfied. He has placed reliance upon the decision Kalpanath Pande Vs. XIth Additional District Judge, Lucknow and others, 1993 (2) A.R.C. 67 and Yogendra Nath Jain Vs. IIIrd Additional District Judge, Meerut and others, 1998 (1) A.R.C. 444. Pramod Kumar was admittedly living with his father but it is alleged that he became independent since the year 1970 and thereafter he was not residing with his father and he was not dependent upon him at the time when he acquired the land. It is not necessary to examine the controversy as regards to the applicability of the explanation under the facts and circumstances of the present case as the Appellate Authority has examined the hardship, which the parties may suffer on account of the application being allowed or rejected by it. The petitioner no.2 is an earning member of the family. The application was filed in the year 1992 and almost 8 years have passed, they have not shown that they made any sincere effort to find out any alternative accommodation. Petitioner no.1 is alleged to be living with his son. The application was filed against four sets of tenants. The two tenants have already vacated and the third tenant has not filed any writ petition in this Court. The disputed accommodation cannot be raised unless the disputed accommodation is also released in favour of the respondent no.2 and in these circumstances, the respondent no.1 was justified in holding that the respondent no.2 would suffer a greater hardship in case the application is rejected.” Relevant case law on the Bona fide Need So far as the bonafide need of the landlord is concerned, both the Courts below have recorded concurrent finding of fact. In Atma S.Berar Vs. Mukhtiar Singh (2003)2 Supreme Court Cases 3, after relying upon the judgment of the Prativa Devi Vs. T.V.Krishnan (1996) 5 SCC 353, Ram Dass Vs. Ishwar Chander (1998) 3 SCC 131, Shiv Sarup Gupta Vs. Dr. Mahesh Chnad Gupta (1999) 6 SCC 222, it has been held by the Apex court that the landlord is the best judge of his residential requirement. He has complete freedom in the matter. The observations of the apex Court are quoted below: “We need only remind ourselves of the observatioins made by a three Judge Bench of this Court ion Prativa Devi case (SCC p.355, para 2): “ The landlord is the best judge of his residential requirement. He has a complete freedom in the matter. It is no concern of the Courts to dictate to the landlord how, and in what manner, he should live or to prescribe for him a residential standard of their own.” The High Court need not be solicitous and ventue in suggesting what would be more appropriate for the landlord to do. That was the lookout of the appellant and not of the High Court. The gratuitous advice given by the High Court was uncalled for…..There is no law which deprives the landlord of the beneficial enjoyment of his property.” In Joginder Pal Vs. Naval Kishore Behal 2002 Supreme Court and Full Bench, Rent Cases page 388, the apex Court after relying upon the judgment of Mst. Bega Behum and others Vs. Abdul Ahad Khan (1979)1 SCC 273 and Shiv Shiv Sarup Vs. Dr. Mahesh Chand Gupta, 1999 SCFBRC 330 in para 8, 9, 10, 16 and 17 held as under: “8. The need for reasonable interpretation of Rent Control Legislation was emphasized by the Court in Mst. Bega Begum and others Vs. Abul “Ahad Khan (dead by Lrs. And others, (1979) 1 SCC 279: 1986 SCFBRC 346. Speaking in the context of reasonable requirement of landlord as a ground for eviction the Court guarded against any artificial extension entailing stretching or straining of language so as to make it impossible or extremely difficult for the landlord to get a decree for eviction. The Court warned that such a course would defeat the very purpos3e of the Act which affords the facility of eviction of the tenant to the landlord on certain specified gourds. In Kewal Singh Vs. Lajwanti, (1980) 1 SCC 290, this Court has observed while the rent control legislation has given a number of facilities to the tenants it should not be construed so as to destroy the limited relief which it seeks to give to the landlord also. For instance one eviction which is contained in almost the Rent Control Act in the contrary is the question of landlord’s bona fide personal necessity. The concept of bona fide necessity should be meaningfully construed to make the relief granted to the landlord real and practical. Recently in Shiv Sarup Vs Dr. Mahesh Chand Gupta, 1999 SCFBRC 330: (1999) 6 SCC 222, the Court has held that the concept of bona fide need or genuine requirement needs a practical approach instructed by realities of life. An approach either too liberal or too conservative or pedantic must be guarded against. 9. The Rent Control Legislations are heavily loaded in favour of the tenants treating them as weaker sections of the society requiring legislative protection against exploitation and unscrupulous devices of greedy landlords. The Legislative intent has to be respected by Courts, while interpreting the laws. But it is being uncharitable to Legislature if they are attributed with an intention that they lean only in favour of the tenants and while being fair to the tenants go to the extent of being unfair to the landlords. The Legislature is fair to the tenants as to the landlords- both. The Courts have to adopt a reasonable and balanced approach while interpreting Rent Control Legislations starting with an assumption that equal treatment has been meted out to both the sections of the society. In spite of the overall balance tilting in favour of the tenants, while interpreting such of the provisions as take care of the interests of the landlord the Court should not hesitate in leaning in favour of the landlords. Such provisions are engrafted in rent control legislations to take care of those situations where the landlord too are weak and feeble and feel humble.” 10. Both the learned counsel for the parties submitted that so far as the expression ‘his own use’ as occurring in Section 13(3)(ii)(a) is concerned, no occasion has hitherto before arisen enabling this Court making an authoriatative interpretation and pronouncement. The nearest available is Mst. Bega Begum and others (supra) which has been referred to by the High Court in its impugned judgment and was relied on by Shir Sudhir Chandra, the learned Senior Counsel for the landlord-respondent. Section 11(1)(h) of J & K Houses and Shops Rent Control Act, 1966 provides for the tenant being evicted if the landlord requires the house for his own occupation. The Court held that the provision is meant for the benefit of the landlord and therefore it must be so construed as to advance the object of the Act. The words “own occupation” contemplate the actual possession of the landlord whether for his own residence or for his business. Furthermore, the provision is wide enough to include the necessity of not only the landlord but also of the persons who are living