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. 5354 of 2001 (M/S) With 514 of 2001 (M/S) R. D. Bhardwaj Vs. Smt. Saroj Jain Approved for reporting. _____________________ Not approved for reporting Date of decision Initial of Judge RESERVED IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL. WRIT PETITION NO. 514 OF 2001 (M/S) R.D.Bhardwaj …………….... Petitioner. Vs. Smt. Saroj Jain ……………….... Respondent. ……… WRIT PETITION NO. 5354 OF 2001 (M/S) Smt. Saroj Jain …………….. Petitioner. Vs. R.D.Bhardwaj and others …………….... Respondents ..… Dated of Judgment: 15.10.2004 Hon’ble Rajesh Tandon, J. By the present writ petitions, the petitioners have prayed for quashing the order-dated 29.02.2000 passed by the Prescribed Authority as well as order dated 28.02.2001 passed by the Appellate Authority. Writ Petition No.514 of 2001 is being treated as a leading case. Facts of the case Briefly stated the facts according to the case of the parties are that the application under Section 21 (1)(a) of the U.P. Act No. 13 of 1972 was filed by Smt. Saroj Jain (respondent in writ petition no.514) praying for the release of the accommodation in possession of the tenants. The Prescribed Authority has rejected the application. On appeal by the respondent, the accommodation was partly allowed. Both the parties have come up in the writ petitions. Writ petition no. 514 of 2001 is made a leading case. Bona fide need Respondent in writ petition no. 514 of 2001 has filed her release application for requirement of herself and her family members stating therein that there are eight family members viz. two major sons, self and her husband, mother-in-law and father-in-law. The details of which are given below: “;g fd izkFkhZ ds ifjokj esa fuEu lnL; gS%& ¼d½ izkfFkZuh Loa; vk;q yxHkx 42 o’kZ ¼[k½ izkfFkZuh ds ifr Jh dksey dqekj tSu] vk;q yxHkx 47 o’kZ ¼x½ izkfFkZuh dk iq= lfpu tSu vk;q yxHkx 20 o’kZ ¼?k½ izkfFkZuh dk NksVk iq= vfpu tSu vk;q yxHkx 19 o’kZ ¼M½ izkfFkZuh ds llqj Jh iqUuk ey tSu vk;q yxHkx 73 o’kZ ¼p½ izkfFkZuh dh lkl Jherh mfeZyk tSu vk;q yxHkx 70 o’kZ The respondents have stated that the total accommodation available writ her is only two bed rooms and basically the family has to take shelter in the drawing room. One rrom on the ground floor is being used for parking the scooter etc. The details of the accommodation in possession of the landlord is given below: “;g fd izkFkhZ o mlds ifjokj dks orZeku esa mDr vkoklh; LFkku miyC/k gS%& ¼d½ ,d Mªkbax :e uke yxHkx 10 QhV - 20 fQV ¼[k½ ,d “k;u d{k uki yxHkx 10 fQV - 12 fQV ¼x½ ,d “k;u d{k uke yxHkx 10 fQV - 12 fQV ¼?k½ ,d jlksbZ ¼M½ ,d Lukukxkj ¼p½ “kSpky; ¼N½ [kqyh Nr ¼t½ Hkwry ij ,d dejk uki yxHkx 10 fQV - 12 fQV fd tks lkbfdy o LdwVj [kMk djus ds fy;s rFkk ?kjsyw lkeku vkfn j[kus ds fy;s LVksj ds :i esa iz;ksx gks jgk gSA The respondents landlady has mentioned in her application that due to paucity of the accommodation it has become very difficult for the family members to cater their life as the two adult sons have to pass their life without and bed room. Relevant paragraph 13 is quoted below: “;g fd izkfFkZuh ds nksuks iq=ksa ds lksus ds fy;s dksbZ dejk miyC/k ugha gS vkSj izfr fnu jkr dks Mªkbax :e esa pkjikb;k yxkdj lksus dh O;oLFkk dh tkrh gS vkSj lcsjs mDr pkjikb;ksa dks gVk;k tkrk gSA izkFkZuk ds nksuksa iq= o;Ld gS vkSj fudV Hkfo’; esa mudk fookg gksuk gSA vkSj izkfFkZuh ds mDr nksuksa iq=ksa ds fy;s vyx vyx “k;u d{k dh vko”;drk gSA Apart from that, there is no place to entertain the guests when in point of fact the petitioner has available with him the property at 15 Dhamawala Bazar. Petitioner has filed the written statement denying the requirement of the landlord. However, with regard to the family members, it is admitted that the family is residing in the house in dispute. The petitioner has stated that the clinic is going on in the premises in dispute. Both the parties have filed their affidavits in support of their cases. On behalf of the landlord, copy of the sale-deed was filed dated 22.11.1994. On behalf of the respondent it has come on record that the husband of Smt. Saroj Jain is doing the work of accountancy and since he is doing the work in his house, there is no proper place in the house for dong the office work of the husband of the respondent. It has come on the record that the landlord has available with him following accommodation. “The residential accommodation under occupation of the applicant/landlady, was disclosed in para 9 of the release application but it was alleged by the opposite parties that the measurement of the room and their use has been described erroneously by the applicant. So while adducing her evidence, the applicant/landlady filed a scaled map disclosing the measurements of the entire premises including the disputed property (paper no.27A) and confirmed in para 9 of her affidavit (paper no.21A) that the accommodation under her occupation (comprises a drawing room 10’.4” X 20’.10”, Bed room 10’.4” X 11’ and 10’.4” X 12.9”, kitchen, bath-room, toilet and one room 9’ X 12’.9” at the ground floor which is being used as a Store and to park the vehicles. The applicant further described that the drawing room is being used for egress and ingress of the bed room, kitchen and the bath-room because their doors open in the drawing room and such a situation, has practically converted the drawing room into a lobby.” On behalf of the petitioner it was submitted that earlier notice dated 27.11.1996 as well as P.A.Case no. 86/96 dated 10.12.1996, was filed and since the same was withdrawn by the landlord and, therefore, the present application is not maintainable as the notice dated 10.12.1996 has been waived. On behalf of the respondent, the affidavits of Sri Rakesh Jain, Sri Anand Prakash Gupta and Sri Satish Gambhir were filed. It was stated that the petitioners are residing at 13 Dhamawala Bazar, Dehradun. On behalf of the petitioners, affidavits of Sri R.D.Bhardwaj, Smt.Sita Devi, Sh. Suchcha Ram, Sh. Sohan Lal, Sh. Amar Nath Jaggi, Sh. Amar Singh and Sh. R.P.Bhardwaj were filed. I have perused the entire record. The affidavit of the respondent shows that due to paucity of the accommodation it is not possible to cater the requirement of the family members. The Prescribed Authority has held as under: “orZeku esa izkfFkZuh ds ikl izFke ry ij ,d cMk Mªkfbax :e] nks “k;u d{k] “kSpky;] jlksbZ] ckFk:e vkfn gS izkfFkZuh ds vuqlkj Hkwry ij Hkh ,d dejk gSA foi{khx.k ds vuqlkj izkfFkZuh us bl dejsa ds lkFk “kkSpky; o ckFk:e dk fuekZ.k fd;k gqvk gS vkSj dkeu islst ij Nr Mkydj mldk iz;ksx dj jgh gSA izkfFkZuh ds ifjokj ds lnL;ksa dh la[;k rFkk muds orZeku o’kZ dks ns[krs gq;s fdlh izdkj Hkh tks vkokl izkfFkZuh ds ikl gS og mldh vko”;drk ls de ugh gSA” The Appellate Authority has recorded the finding to the following effect: “It is not the requirement of law that the landlord should be on street in order to get his house released. The appellant has a right to use her accommodation in the way she likes and the respondent/tenant has no right to compel for converting the use of the store cum parking place situated at the ground floor adjacent to the disputed property. Learned counsel laid emphasis that the landlord is the best Judge of his residential requirement. In support of the above contentions, learned counsel placed reliance on the pronouncement of Hon’ble Allahabad High Court reported in 1990 (2) ARC 391 Sriniwas Kulshreshth Vs. VIth A.D.J. Etah and Ors.; 1992 (2) ARC 523 “Chandra Pal Singh Parihar Vs. Vth A.D.J. Kanpur Nagar and others’, 1998 (1) ARC 385 “Mohd. Umer and another Vs. IIIrd A.D.J. Moradabad and Others and (1996) 5 SCC 353 “ Smt. Prativa Devi Vs. T.V.Krishnan…………………….” In view of the pleadings of the parties and in the light of the evidence adduced by them, it is established that the applicant’s family presently consists of self, husband and two sons, who are in their mid twenties and the accommodation under her occupation comprises a drawing room 10’.4” X 20’.10”, Bed Room 10’.4” X 11’ and 10’.4 “X 12’ X 9” kitchen, bath room, toilet and one room 9’ X 12’.9”, at the ground floor. The need of the parties has to be considered keeping in mind their status. The appellant’s husband does the accountancy job who are commonly called as “Munim”. This fact can not be overlooked that in the year 1994 when the appellant had purchased the disputed property she knew it well that it is being used by Shri Gagan Bhardwaj s was admitted by her in the petition moved earlier under section 21(1)(b) of the Act. At that time too, both her sons were about 17-18 years of age. It was not justified on the part of the appellant to assume that soon after the expiry of statutory period she would get the disputed property released on the ground of her personal need. Nevertheless, there can be no denial of the fact that the need for one bad room for the appellant and her husband and two bed rooms for both her sons, which can now be used for their studies also and after their marriage these rooms can be used by them as bed-rooms, is genuine and bonafide. It is pertinent to mention that the opposite parties have specifically asserted that the room available to appellant at the ground floor is not being used by her as a Store. She rather got the latrine and bath room constructed attached with this room and also get the common passage covered. This fact has not specifically been controverted by the appellant and the construction of attached latrine-bath room with the room at the ground floor leads to suggest that the said room is not merely being used as store or to park the vehicle. However, the appellant’s need for additional room cannot be denied and in case a room is provided to the appellant, that can be used as a guest room or as an office by her husband to meet the people who come to visit him. At this juncture, it also needs to be mentioned that the appellant’s family has a scooter as admitted to the O.Ps themselves when they say that the appellant’s husband used to park his scooter at premises no.31/35 in the same locality which was in occupation of the appellant’s father-in-law. Simultaneously, it needs to be kept in mind that the appellant has got the common passage covered at the ground floor where the scooter can be parked.” However, the appellate authority after recording the aforesaid finding, has released only one room. The finding is reproduced below: “I am of the view that the requirement of appellant- landlady can be satisfied by releasing only one room at the ground floor and even thereafter two rooms will be available to the respondents/tenants which can satisfy their needs also.” On behalf of the landlords, Smt. Saroj Jain has filed affidavit and prayed that she requires the premises for the bona fide need of the family members, the same is quoted below:- “;g fd izFke ry ij fLFkr “kk;u d{k] jlksbZ] rFkk Lukuxkj dk ,d njoktk Mªkbax :e esa [kqyrk gS vkSj “k;u d{k] jlksbZ rFkk Lukuxkj esa Mªkbax :e dk iz;ksx Mªkbax :e esa de cfYd ykch ds :i esa vf/kd gksrk gSA blds foijhr foi{kh ds izfrokn i= dh pj.k la[;k 10 dk ys[k xyr gS] tgkW rd izkfFkZuh dh Mªkbax :e ds iz;ksx ds laca/k esa LosPNk dk iz”u gs bl lEca/k esa Mªkbax:e ds fy;s ftl izdkj dk LFkku pkfg;sa bl izdkj dk LFkku izkfFkZuh dks miyC/k ugh gS] ;g Hkh xyr gSA fd izkfFkZuh }kjk bl pj.k esa fy[kk x;k dFku fdlh nqHkkZouk dks iznf”kZr djrk gksA” ;g fd Hkwry dk izkfFkZuh dks miyC/k mDr dejs ds vykok vU; dksbZ ,slk LFkku ugh gS] fd tgkW ij izkfFkZuh vius ifjokj ds lnL;ksa dh lkbfdys] LdwVj vkfn [kMs dj ldsa] vkSj Hkwry ij fLFkr dejsa esa lkbZfdys] LdwVj [kMs fd;s tkrs gS vkSj mlh esa vU; ?kjsyw lkeku] vukt vkfn tkrk vkSj Hkwry ij fLFkr dejk] LVksj ds :i esa iz;ksx esa gSA blds foijhr foi{kh ds izfrokn i= dh pj.k la0&11 dk ys[k xyr gSA ;g dguk xyr gS fd dkseu jkLrs dk dfFkr iz;ksx okfnuh }kjk fd;k tk jgk gks] mDr dkseu jkLrs ls vU; lEifRr Lokeh dks Hkh vkokxeu dk vf/kdkj izkIr gS Hkwry ij LdwVj ] lkbZfdy vkfn rFkk vU; ?kjsyw lkeku vkukt vkfn j[kus ds fy;s vU; dksbZ LFkku miyC/k u gksus ds dkj.k mDr dejs dks LVksj ds :i esa iz;ksx fd;k tk jgk gS] vkSj LVksj ds :i esa iz;ksx gksus ds dkj.k ySVjhu dk Hkh bLrseky ugh gks ik jgk gS] Hkwry ij dksbZ i`Fkd ckFk:e ugh gSA ;g dguk xyr gS fd Hkwry ij dfFkr dejk vkokl gsrw ,d iw.kZ bdkbZ ds :i esa fjDr voLFkk esa okfnuh dks miyC/k gksA ;g fd izkfFkZuh ds nksuks iq= v/;;ujr gS vkSj izkfFkZuh ds iq=ksa ds v/;;u ds fy;s dksbZ dejk miyC/k ugh gS blds foijhr foi{kh ds izfrokn i= dh pj.k la[;k &12 dk ys[k xyr gSA ;g dguk yxr gS fd izkfFkZuh ds iq=kks ds ikl jgus o v/;;u gsrw dksbZ vkSj vkokl miyC/k gks ;g Hkh mYys[kuh; gS fd izkfFkZuh dk cMk iq= Lukrd rd f”k{kk iw.kZ dj pqdk gS vkSj og fookg ;ksX; vk;q dks gks x;k gSA ;g fd izkfFkZuh ds nksuksa iq=ksa ds lksus ds fy;s dksbZ dejk miyC/k ugh gS vkSj izfr fnu jkr dks Mªkbax :e esa pkjikb;kW yxkdj lksus dh O;oLFkk dh tkrh gS vkSj lcsjs mDr pkjikb;kW dks gVk;k tkrk gSA izkfFkZuh ds nksuks iq= O;Ld gS vkSj fudV Hkfo’; esa mudk fookg Hkh gksuk gS vkSj izkfFkZuh ds mDr nksuks iq=ksa ds fy;s vyx vyx “k;ud{k dh vko”;drk gSA blds foijhr foi{kh ds izfrokn i= dh pj.k la[;k & 13 dk ys[k xyr gS mlds lEcU/k esa okLfroDrk foLrkj ls Åij of.kZr dj nh xbZ gS] blds foijhr foi{kh dk dFku xyr o nqHkkZouk iw.kZ gSA ;g dguk xyr gS fd Mªkbax :e esa pkjikbZ yxkxj lksus dh ckr eqdnesa esa jax nsus dh ps’Bkek= gksA foi{kh ds izfrokn i= dh pj.k la[;k &28 dk ys[k xy rds gS ;g dguk xyr gS fd Jh iqUukey tSu ds ikl 31@35 usrkth ekSgYyk nsgjknwu ds cSlesV esa dfFkr dksbZ txg miyC/k gks ;k dfFkr dksbZ txg Jh iqUukey tSu iz;ksx dj jgs gks ;k izkfFkZuh o mldk ifjokj LVksj ds :e esa iz;ksx djrk gksA Jh “kSypUn tSu ,oa muds iq= ds LokfeRo okyk dksbZ Hkh Hkkx Jh iqUukey tSu ;k izkfFkZuh o mlds ifjokj ds v/;klu esa ugh gSA ftl dkj.k ,sls fdlh Hkkx dk izkfFkZuh ;k mlds ifjokj }kjk LDwVj vkfn [kMs djus ;k mls LVksj ds :i esa iz;ksx djus dk dksbZ iz”u ;k volj jghgSA ;g dguk xyr gS fd izkfFkZuh ds vkosnu esa of.kZr Hkwry ij fLFkr dejk izkfFkZuh ds ifjokj ds “k;u d{k ds :i esa iz;ksx gksrk gks] vkSj LVksj ds :i esa o LdwVj] lkbZfdy vkfn [kMs djus ds fy;s iz;ksx u gksrk gksA During the course of the proceedings of the writ petition, the petitioners have filed a supplementary affidavit. Para 3 of the same reads as under: “ That in the map filed alongwith the courter affidavit, it is admitted by the respondent that the ground floor of the property bears four rooms. Two rooms out of the four are in the tenancy of the petitioner no. 2 and 3. One room which is denoted as store room is in occupation of the landlady (respondent). The fourth room alongwith covered veranda had been in tenancy of one Mukhtiar Jain who had expired about 20 years back. After the death of Mukhtiar Jain his son Rajesh had continued as the tenant till 01.02.2003. He had committed suicide and there is no heir or legal representative of Mukhtiar Jain who would enter in the shoes as tenant. The other heirs namely Rakesh is residing in Delhi, the daughter Smt. Pushpa w/o Bhushan is residing in Ghaziabad, Smt. Anita w/o Kamal is residing in Shamli, Distt, Muzaffarnagar and lastly Smt. Rita w/o Manoj is residing in Dehradun. The wife of Mukhtair Jain had died about five to six years back.” The respondent has replied the said affidavit and has stated as under: “ That the contents of paragraph no. 3 of the supplementary affidavit are wrong and are denied, in reply thereof, it is stated here that in ground floor, one store room, which is in possession of deponent, two rooms and a covered verandah, which is in occupation of petitioner and one room stated in paragraph under reply measuring 9’ X 10 , which is not in possession of the petitioners. The petitioners wrongly stated in paragraph under reply that the said room is with covered verandah, in fact, there is no covered verandah with the said room. The said is measuring 9’ X 10’ without any window and with a small gallery, which is still in possession of legal heir of Mukhtyar Jain. It is wrong to say that there is no legal herir of Mukhtyar Jain, who would enter in the accommodation. It is also stated that till date the possession of accommodation, stated in paragraph under reply, has not been delivered to the petitioners. It is further pertinent to bring on records that the effect of the tenant in the accommodation, stated in paragraph under reply, have not been removed of the legal heir of Mukhtyar Jain.” In view of the above, no accommodation has come in possession of respndent. No such averments have been made in the rejoinder affidavit, which was filed to the following effect: “ That the contents of paragraph 4 of the supplementary counter affidavit are denied and those of paragraph 3 of the supplementary affidavit are reaffirmed. It is specifically stated by the deponent in his supplementary affidavit that the heir or legal representative of Mukhtiar Jain has already expired and since 1.2.2003 no one of the family of Mukhtiar Jain is living in the alleged room and no other heir whosoever is alive is interested in living in the alleged room. It is pertinent to mention that it is a collusive exercise between the landlady and heirs of Mukhtiar Jain that the room has been purposely kept under lock. It is in order to give colour in the present case that the landlady is not taking the possession of the alleged room and it is an ulterior motive behind it that once the petitioner is ousted then the possession of the alleged room. It is further stated that no action whatsoever has been taken by the landlady to seek possession of the alleged room which is vacant for almost one and half year. It is under these circumstances that the Hon’ble court may be pleased to consider the subsequent event which has taken place as the need of the landlady is fulfilled as observed in order/judgment of the lower appellate.” Regarding the bonafide requirement of the landlord, it has been held in 1992 ARC (2) 523 – Chnadrapal Singh parihar VBs. Vth Addl. District Judge, Kanpur as below: “ In Smt. Satya Misra and others Vs. IInd Additional District Judge, and others, 1978 UPRCC Supplement 738, K.C. Agarwala, J. (as he then was) while interpreting the expressin ‘for occupatin by himself” held as under: “ The expression’s ‘for occupation by himself” does not mean that the landlord should live in isolation. If the State of health of a landlord or his age is such that he cannot live alone and would need the company or assistance of any other person, then the need of such other persons whose assistance, he needs would also be converted by this phrase. Similarly, if the landlord, is invalid an accommodation required for a helper may also be considered as the need of the landlord………..A distinction has, therefore, to be maintained between two classes of cases where a landlord does not need an assistance of a man but still he wants to keep someone with him, in such a case the need for occupation would not be that of the landlord but of that other person. But, where, as here, the landlord keeps his daughter and her son-in-law to look after his business and for his help, it will have to be held that the requirement of these persons to have an accommodation to live with landlord is bona fide need of the landlord himself.” In Mishri Lal Vs. Special Judge/Additional Judge, Gorakhpur and others, 1988 (2) ARC 430, while interpreting the expression “ for occupation by himself” used in clause (a) of sub-section (1) of Section 21 of the U.P.Act nO. 13 of 1972, R.K.Gulati, J has observed as under: “It has consistently been held that the said phrase cannot be construed verynarrowly to mean that the landlrd should live isolation or by himself only. In other words, the expression within its ambit includes the personal requirement of a landlord. It may include landlord’s servant, some other person or person who look after him and taken care and whose company and assistance is or has become necessary though technically they may not be members of his family and defined in the Act. Thus the needs for such others, whose assistance is required to the landlord, although they may not include in the term’ family’ in this Act, is the own need of the landlord.” In Thakur Deen Vs. Hero Devi, 1984 ALJ 787 : 1984 (2) ARC 117, B.N.Sapru, J. observed as under: “ A son is undoubtedly a member of the family of the landlady. The crucial words are “for occupatin by himself or any member of his family”; The words ‘occupation’ in the context in which it is placed in section 21(1) (a) means occupation by the landlord or the members of his family along with those persons who would be normally reside with him. It does not mean that a landlord must need the accommodation for his occupation alone in the sense that he cannot bring with him any other person who would normally live with him.” xxx xxx xxx In the circumstances, in this view of the law, it cannot be held that the authorities below committed any manifest error of law in holding that the landlady’s need included the need of the sons and the daughters-in-law to be accommodated in the building in question.” 15. In Rani Chaturvedi Vs. Shiv Narain and others 1979 ARC 479, S.D. Agarwala, J. While applying the proposition laid down in the case of Smt. Satya Misra (supra), held as under: “Section 21 (1)(a) of the Act gives right to the landlord to apply for release of a building under occupation of the tenant if the landlord requires the building for occupation by himself or any members of the family. The landlord can apply for ‘occupation by himself or any member of his family. The landlord can apply for ‘occupation by himself or ‘for occupation’ by any member of his family’. In case an application is made for occupation by any member of his family, then alone the member of family ‘will be only such a person who comes within the definition of the word ‘family’ as provided by section 3(g) of the Act. If, however, the landlord requires the building for occupation by himself, then the question of applicability of the definition of the word ‘family’ as used in section 3(g) does not arise. The Court has to examine the own need of the landlord