HIGH COURT OF UTTARANCHAL AT NAINITAL Writ Petition No. 619 (M/S) of 2002 Mohan Singh Rautela Son of Late Khim Singh Rautela, Resident of Khazanchi Mohalla Almora …… Petitioner Versus (1) District Judge Almora (2) Rajesh Kumar Sah Son of Late Jawahar Lal Sah, Resident of Nivedita Kutir Almora (3) Girish Chandra Sah Son of Late Jawahar Lal Sah, Resident of Nivedita Kutir Almora (4) Smit. Janki Devi Wife Of Late Jawahar Lal Sah Resident of Nividita Kutir Almora (5) Smt. Vijaya Laxmi Sah Wife of Sri Madan Lal Sah Resident of Khazanchi Mohalla Almora (6) Smt. Shashi Prabhu Rout Wife of Sri N.C.Rout C/o 56 A.P.O. (7) Smt. Suman Sah Wife of Sri Vimal Kumar Sah, Resident Of Rajani Gandha Bhotia Parao Haldwani …… Respondents Dated:1.10.2003 Hon’ble Rajesh Tandon, J. By the aforesaid writ petition the petitioner has challenged the order passed by the District Judge Almorah arising out of the appeal filed by the landlord Sri Rajesh Kumar Shah and others. The learned District Judge has allowed the appeal and as such the application U/s 21(1)(a) of U.P. Act No. 13 of 1972 stands allowed for releasing the accommodation in favour of the landlord. Brief facts giving rise to the present writ petition are that an application was filed by Sri Jawahar Lal Shah S/o Late Sri Dhanni Lal shah in respect of the premises situate at Khazanchi Mohalla Almora . It was stated by the landlord that two rooms of IInd storied house and two rooms of third story house of the, kitchen, store room and in the second adjacent house has one room including latrine and on the second story there is one room thus total six rooms are in possession of the petitioner.The details have been given in para 2 of the application . The same are described below:- fd buesa ls ,d edku tks cktkj dh rQZ gS mlds nks efUtys ds nks dejs rFkk rhljh efUty ds nks dejs e; fdpu]LVksj :e vkSj nwljk edku tks ihNs xyh dh vksj gS mlds lcls uhps dh efUty esa ,d dejk e; ySVjhu ]ckFk:e rFkk blh edku ds nks efUtys esa ,d dejk] cjkenk bl izdkj nksuks eduksa esa 6 dejs ],d LVksj :e] cjkenk] vkWxu ]ySVjhu ]ckFk:e foi{kh ds dCts esa crkSj fdjk;snkj pyk vkrk gSA cktkj dh rQZ okys edku ds nks efUtysa esa dsoy ,d NksVk lk dejk tks LVksj :e gS og izkFkhZ ds dCts esa gSA blds vykok vkSj dksbZ Hkkx mDr nksuksa edkuksa dk ikVhZ ds dCts esa ugha gSA It was stated by the landlord in his application U/s 21(a) of U.P. Act 13/72 to the effect that when the building was given on rent to the petitioner tenant, the family of the landlord was not grown up and now gradually the family has grown up and therefore accommodation is required for the family of the landlord.. It was stated that the two sons of the landlord have been married and want to reside separately. They are also intending to do independent business and as such the petitioner requires the premises bonafide. The landlord Sri.Jawarhar Lal has stated that he is residing in Oklay House and the same is far away from the city and due to paucity of accommodation the family members are suffering great hardship as neither they are able to reside comfortably nor they are able carry on do business independently. It was stated that there has been a complete change in the circumstances of the tenant petitioner right from 1966, as the he has purchased a property known as “Shiv Bhawan” and he has obtained the possession after getting it vacated from the tenants. He has available with him another building near Bus Station Almora and further there is a sweet shop belonging to the tenant petitioner in the city of Almora. The application U/s 21 of Act No. 13 of 1972 was got amended after the death of Sri Jawahar Lal . During the life time of Sri Jawahar Lal he executed a Will on 1.1.89 and by virtue of the will Sri Rajesh Kumar Shah was given the entire disputed properly and Sri Girish Shah was given entire Oklay house. The amendment was allowed and the petitioner has amended is application by adding paragraphs 7 (b) and (c) in the application U/s 21 of the Act. The petitioner has filed a written statement and has contested the application U/s 21(1)(a) of the Act. It was stated that the petitioner has sufficient accommodation and need is genuine. Prescribed Authority has rejected the application. Aggrieved by the aforesaid orders, the landlord have preferred an appeal before the District Judge, the same has been allowed hence the present writ petition has been filed by the petitioner. I have Heard Sri. V..K.Bisht for the petitioner tenant and Sri.Harsh Vardhan Shah for the landlord respondents at great length. Both the parties have already exchanged their pleadings Both the parties have stated that the ‘Writ Petition may be decided finally. Findigs of Bonafide requirements of the landlord The landlord as will appear for his application has filed the application for release under Section 21(1)(a) of U.P. Act of 1972 on the ground that after letting of their accommodation to the petitioner. the family of the landlord has grown up and thereafter accommodation is required for the family of the landlord. Two sons of the landlord have been married and quite to reside that their family members independently. The original landlord has expired during the pendency of the case. In pursuance of the will of the landlord the family in dispute has come to the share of Rajesh Kumar Shah . Sri R. K Shah has set up his requirement by amending the application to the following effect. The requirement of Sri Rajesh Kumar Shah as shown in the amended application is quoted below:- fd jkts”k lkg j{kk foHkkx ds Mh-vkj-Mh-vks- laLFkku esa dk;Zjr gSa rFkk vDlj ukSdjh ds flyflys easa ckMZj {ks=ksa esa jgrk gSA jkts”k lkg dk fookg gks pqdk gS mlds ifjokj ds fuEu lnL; gS %& iq= vfiZr ]mez 11Ok’kZ tks fd d{kk 6 esa v/;;u jr gS rFkk iq=h vfnfr mez 8 o’kZ tks fd d{kk 4 esa v/;;jr gSA iRuh rFkk jkts”k lkg dh ekW tkudh nsoh Hkh jkts”k lkg ds lkFk jgrh gSA fd pqWfd vYeksMk esa mldks fuokl miyC/k ugha gS rFkk lEiw.kZ **vksdsys gkml ** esa fxjh”k lkg Lo;a vius ifjokj ds lkFk jgrk gS rFkk viuk gksVy O;olk; bl Hkou esa djrk gSA rFkk tgkW rd **vksdys gkml ** esa jkts”k lkg ds firk }kjk fn;s x;s lkxj islksa dk iz”ku gS mlesa dqN vkmV gkml VwV x;s gS rFkk ckfd;ksa esa lQkbZ deZpkjh bR;kfn jgrs gSA rFkk ;s vkmV gkMl fdlh Hkh izdkj jkts”k lkg dh lkekftd fLFkfr ds vuq:Ik jgus ;ksX; ugha gS vkSj u gh buesa fctyh] ikuh o “kkSpky; bR;kfn dh lqfo/kk gh gSA blfy;s jkts”k lkg us vius ifjokj dks gY}kuh esa vius dfd;k “olqj ds ?kj ij j[kk gqvk gS rFkk vius cPpksa dks etcwjh esa gY}kuh ds fo?ky;ksa esa gh v/;;u djok jgk gSAD;ksafd ml dk HkkbZ fxjh”k yky lkg mls vius lkFk j[kus dks drbZ rS;kj ugh gS blfy;s jkts”k lkg dks viuh fjgkbl ds fy;s fookfnr Hkou dh vR;ar vko”;drk gS fd tokogj yky lkg dh e`R;q ds mijkUr mudh olh;r ds vuqlkj lEifRr;ksa dks nkf[ky [kkfjt Hkh jkts”k lkg o fxjh”k ds uke rnuqlkj uxj ikfydk esa gks pqdk gSA fd blds foijhr foi{kh }kjk vius Hkou dks.kdZ gksVy esa **xzkeh.k cSad ** dks dkQh txg fdjk;s ij nh gS ftlesa cSad ds eSustj dh fjgk;r gsrq Hkh txg nh xbZ gS rFkk lkFk gh foi{kh }kjk **f”ko Hkou ** uked Hkou dks vkokl gsrq fufeZr djus ds fy;s u-ik- vYeksMk esa ekufp= Hkh izLrqr fd;k gSA vr% ;g Li’V gS fd foi{kh mlds ifjokj ds fjgkbl ds fy;s foi{kh ds ikl vius nks Hkou tcfd izkFkhZ jkts”k lkg ds ikl fookfnr lEifRr ds vfrfjDr u-ik- vYeksMk dh lhek ds varxZr vius o vius ifjokj ds fjgkbl ds fy;s dksbZ LFkku miyC/k ugha gSA The tenant petitioner has also admitted that he has purchased ‘Shiv Bhawan’:- fd izkFkZuk i= d izLrj la[;k 5 esa foi{kh }kjk f”ko Hkou [kjhnuk Lohdkj gS]ijUrq ;g Lohdkj ugh gS fd bl bekjr esa cMs& cMs dkQh dejs gS rFkk dkQh cMk dEikmUM gS f”ko Hkou esa jgus ;ksX; dsoy 3 dejs gS A vkSj “kS’k vxy&cxy ds dejs cgqr NksVs&NksVs gSaA Infact the building of hotel was also admitted. The same is quoted below:- fd izkFkZuk i= ds izLrj la[;k 6 esa cl LVs”ku ds lehi foi{kh dk ,d gksVy ds fy;s bekjr dk fuekZ.k fd;k tkuk Lohdkj gS]tks dsoy gksVy ds iz;kstu ds fy;s cukbZ tk jgh gS vkSj vHkh fuekZ.k/khu gSA foi{kh dh feBkbZ dh ,d nqdku gksuk Lohdkj gS]”ksa’k izLrj ftl izdkj fy[kk x;k gS] Lohdkj ugh gSaA Further admission have been made by the petitioner regarding vacant portions obtained by the tenant petitioner in paragraph 16 and 17 of the written statement:- fd foi{kh us yxHkx 15 o’kZ iwoZ f”ko Hkou [kjhnk Fkk] ftlesa m?kksx foHkkx dk nQrj Fkk vkSj og vkoklh; Fkk] ;g edku foi{kh us viuh O;olk; o dk;kZy; ds fy;s [kjhnk Fkk ftlesa nks dejksa esa foi{kh dk nQrj rFkk “ks’k dejksa esa xksnke FkkA ;g Hkou ekyjksM ls feyk gqvk gksus ds dkj.k fcink Fkh AijUrqa tc foi{kh dks Lo;a fuokl ds fy;s LFkukHko gqvk rks mldks foo”k gksdj viuk xksnke dqN dejksa ls gVkuk iMk vkSj vius rhu iq=ks ,d ikS=],d iq= o/kq o ukSdj ds fy;s f”ko Hkou esa LFkku cukuk iMk ]nks dejksa esa vHkh Hkh foi{kh dk nQrj gSA fd feBkbZ dh nqdku]o dksukdZ gksVy tks vHkh fuekZ.k/khu gS]ifjokj ds vkokl ds ;ksX; ugha gS] D;ksfd og frtkjr ds iz;kstu ds gSAfeBkbZ dh nqdku O;olk; gsrq fdjk;s ij yh xbZ gSA The landlord petitioners have filed the documents of Nagar Palika52x@52x@5 . Copy of the assessment reported copy of the will etc . Apart from that at the side of the landlord Sri Girish Chandra Shah and Ravindra Lal Shah have filed their affidavit’s showing the need of the Landlord in order to accommodate the growing family. The petitioner has filed the copy of the compromise deed dated 44x ] 44x affidavit and filed the affidavit’s of Mohan Singh Raukela ,Anand Singh Raukela ,Jagmohan shah. During the pendency of the case a commissioner was appointed who has given his report. The details of the availability of the accommodation with the tenant is given below:- **loZizFke ekyjksM ij fLFkr Hkou ftl ij gksVy dksukdZ dk cksMZ yxk gS] dk eqvk;uk fd;kA bl gksVy esa cSlaesaV okys Hkkx esa ekyjksM dh rjQ ls uSuhrky vYeksMk {ks=h; xzkeh.k cSad dk dk;kZy; gSA blesa 2 dejs gS] ftudh yEckbZ pkSMkbZ dze”k 17 fQV 6bap X 13fQV X 6bap ¼izFke dejs½ o 37 fQV X 13fQV nwljs dejs dh gSA mDr Hkou dk ;g Hkkx cSad ds O;olkf;d bLrseky gsrq gSAeqvk;us esa ik;k] fd cSad ds izcU/kd dk vkokl mDr dks.kkdZ gksVy esa ugha gSA ekSds ij orZeku cSad izcU/kd Jh vk”kqrks’k tks”kh us Hkh crk;k fd mDRk gksVy esa mudk ;k muds iwoZorhZ fdlh Hkh izcU/kd dk dHkh Hkh vkokl ugha jgkA ftl ckor ,d fyf[kr i= Hkh mUgksaus eq>s fn;k] tks fuEu gSA blds Ik”pkr pkS/kkuikVk fLFkr ftyk iqLrdky; ds lkeus cu js nqeaftyk Hkou fuekZ.k/khu Hkou dk eqvk;uk fd;k o ekSdk uD”kk rS;kj fd;k] mDr Hkou vHkh fuekZ.k gh izfdz;k esa gS] mDr Hkou dk Hkwry dkYkWe o cheksa ij cu jgk gS]dkyWe o cheks dh yEckbZ X pkSMkbZ uD”kk ekSds ij nf”kZr dh xbZ gS--------------------Q”kZ ij 5chesa iMh gSA ftudh yEckbZ X pkSMkbZ eksVkbZ 17** 4** 12** gSA Hkwry ds mDRk {ks= , esa dqy 16 dkyWe gS ]mudh yEckbZ pkSMkbZ 9** 18** gSA Hkwry ls ihNs dh vksj dqN dejs v/kZ fufeZr voLFkk esa gSA njokts f[kMfd;k ij pkS[kVsa yxh gSA Q”kZ ugha iMk gSaA izFke ry esa cus jgs dejksa dk uD”kk ekSdk layXu gSA mDRk izFke ry Hkh vHkh fuekZ.k/khu gSA oa Q”kZ ij IykLVj bR;kfn ugha gqvk gSA njoktks of[kMfd;ksa ij dsoy pkS[kVsa yxh gSaA So far as the bonafide requirements of the landlord is concerned .Rajesh Kujmar Shah has proved from his affidavit that his wife and children have no accommodation to stay and they are residing in his sasural. Since Rajesh Kumar Shah remains outside in the Indian Army, there is no place to live for his family members. The family of Sri Rajesh Kumar consists of following members:- Arpit son 11 years Daughter – Aditi -8years Wife of Rajendra Kumar Shah Smt. Janki Devi There is a clear admission in para – 7(b) of the amended application that his brotheris not willing to keep the family of Rajesh shah.The same is quoted below:- fd jkts”k lkg j{kk foHkkx ds Mh-vkj-Mh-vks- laLFkku esa dk;Zjr gSa rFkk vDlj ukSdjh ds flyflys esa ckMZj {ks=ksa esa jgrk gSaA jkts”k lkg dk fookg gks pqdk gS mlds ifjokj ds fuEu lnL; gS %& iq= vfiZr ]mez 11o’kZ tks fd d{kk 6 esa v/;;u jr gS rFkk iq=h vfnfr mez 8o’kZ tks fd d{kk 4 esa v/;;jr gSA iRuh rFkk jkts”k lkg dh ekW tkudh nsoh Hkh jkts”k lkg ds lkFk jgrh gSA blfy;s jkts”k lkg us vius ifjokj dks gY}kuh esa vius dfd;k “olqj ds ?kj ij j[kk gqvk gS rFkk vius cPpksa dks etcwjh esa gY}kuh ds fo?kky;ksa esa gh v/;;u djok jgk gSAD;ksfd ml dk HkkbZ fxjh”k yky lkg mls vius lkFk j[kus dks drbZ rS;kj ugha gS blfy;s jkts”k lkg dks viuh fjgkbl ds fy;s fookfnr Hkou dh vR;ar vko”;drk gS fd tokgj yky lkg dh e`R;q ds mijkUr mudh olh;r ds vuqlkj lEifRr;ksa dks nkf[ky [kkfjt Hkh jkts”k lkg o fxfj”k ds uke rnuqlkj uxj ikfydk esa gks pqdk gSA vr% ;g Li’V gS fd foi{kh mlds ifjokj ds fjgkbl ds fy;s foi{kh ds ikl vius nks Hkou tcfd izkFkhZ jkts”k lkg ds ikl fookfnr lEifRr ds vfrfjDr u-ik- vYeksMk dh lhek ds varxZr vius o vius ifjokj ds fjgkbl ds fy;s dksbZ LFkku miyC/k ugh gSA The findings of the appellate authority with regard to bonafide need are as under:- tokgj yky lkg ds ikl fookfnr edku tks foi{kh dh fdjk;snkjh esa gS vkSj ,d vksdys gkml gS ftuds fy;s eqy olh;r nkf[ky dh xbZ gSA Tokgj yky lkg dh e`R;q gks pqdh gSA olh;r ds vuqlkj vksdys gkml fxfj”k pUnz lkg dks feyk gS vkSj fookfnr edku jkts”k dqekj lkg dks feys gSA bu nksuksa edkuksa ds vykok vU; dksbZ edku bl le; jkts”k dqekj lkg ;k fxfj”k pUnz lkg ds ikl ugh gSA orZeku esa fookfnr edku dk rUgk ekfyd jkts”k dqekj lkg vkSj vksdys gkml dk rUgk ekfyd fxfj”k pUnz lkg gSA So far as bonafide need is concerned , the Appellants authority has recorded in favour of the landlord, their being ample evidence on the record to prove bonafide need of the landlord, the findings therefore recorded by the appellate authority therefore needs no interference. Findings on Comparative Hardship So far as comparative hardship is concerned, admittedly the petitioner tenant is affluent person and has got several properties at Almora. As will appear from the following admission made in his written statement. The appellate authority has also recorded a finding that tin these circumstances explanation is applicable to the facts of the case as the tenant has constructed his own house. Explanation to section (1) (a) is quoted below. “Where the tenant or any 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 residential building in the same city, municipality, notified area or town area , no objection by the tenant against an application under this sub-section shall be entertained.” “Where the tenant or any 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 residential building in the same city, municipality, notified area or town area, no objection by the tenant against an application under this sub-section shall be entertained. For the purpose of this clause a person shall be deemed to have otherwise acquired a building, if he is occupying a public building for residential purpose as a tenant, allottee or licensee.” However,apart from the explanation there is sufficient evidence on the record that the need of the landlord Rajesh Kumar Shah is bonafide. Comparitive hardship also lies in his favour as after the death of his father, no other property is available to him in pursuance of the will of his father and further the names have also been recorded in the Nagar Palika record. Thus bonafide need and comparative hardship both lies in favour of the landlord Rajesh Kumar Shah. Rule 16 (1) ( C ) provides that where the tenant has available with him the accommodation .The claim of the landlord shall be constructed liberally .It reads as under:- “Where the tenant has, apart from the building under tenancy, other adequate accommodation . Whether owned by him or held as tenant of any public premises, having regard to the number of members of his family and their respective ages and his social status the landlord’s claims for additional requirement shall be construed liberally.” It is a case where the landlord will suffer greater hardship than the tenant. The tenant is a affluent person .He has available with him following properties and such the comparative hardship does not lie in favour of the tenant. (1) There is a building known as Konark Bhawan. (2) There is a building where constructions are complete for resideintial purposes. However,apart from the explanation there is sufficient evidence on the record that the need of the landlord Rajesh Kumar Shah is bonafide. Comparitive hardship also in his favour of Rejesh Kumar Shah as after the death of his father, no other property is available to him in pursuance of the will of his father and further the names have also been recorded in the Nagar Palika record. Thus bonafide need and comparative hardship both lines in favour of the landlord Rajesh Kumar Shah. Relevant case law on bonafide need and comparative hardship Relying upon the findings of Apex Court in Mst Bega Begum and others V. Abdul Ahmad Khan 1986 SCFBRC Rent cases p-346 ,it has been held in 1992 (1) ARC page-18 that the need of the landlord cannot be said to be arbitrary if he has no legal right to live on account of family dispute. The observations are quoted below:- “To establish the bonafide need, it has to be seen that the respondent No. 2was living in the rented accommodation along with her brother-in-law. It cannot be doubted that the tenancy was in favour of Sri. G.R. Anand who got the telephone and water connections istalled in his name, was paying the rent to the landlady and has also got valid ration card.The possession of respondent No.2 was with the permission of the tenant, may ba as a family member but as the respondent No.2 was not possessing any legal right to remain in possession ,it may be that on account of some family dispute, the relations might have become strained which may hve necessitated the eviction from the premises 64-A. Lyton Road and for that reason the need of release of the disputed accommodation. The findings of the Appellate Court for the bonafide need of respondent No.2 cannot be treated to be arbitrary or based on extraneous considerations or more desire. The learned District Judge has noted various decisions on the word ‘bonafide’ and has also mentioned the case of Mst. Bega Begam and others V.Abdul Ahmad Khan, 1986 SCFBRC 346. In the said decision, it has been hold as under: “The expression reasonable requirement” undoubtedly postulates that there must be an element of need as opposed to a mere desire or wish. The distinction between desire and need should doubtless be kept in mind but not so to make even the genuine need as nothing but a desire. The connotation of the term ‘need’ or ‘requirement’ should not be artificially extended nor its language so unduly stretched or strained so as to make it impossible or extremely difficult for the landlord to get a decree for eviction. Such a course would defeat the very purpose of the Act which affords the facility of eviction of the tenant to the landlord on certain specified grounds.” Similar, view was taken in (1996) 6 SCC p-373 where the Apex Court has held that the tenant has no right to object to the partition made amongst family members . The findings are quoted below:- “If, however, all the co-owners or the co-lessors agree among themselves and split by partition the demised property by metes and bounds and come to have definite, positive and identifiable shares in that property, they become separate individual owners of each severed portion and can deal with that portion as also the tenant thereof as individual owner/ lessor. The right of joint lessors contemplated by Section 109 comes to be possessed by each of them separately and independently. There is no right in the tenant to prevent the joint owners or co-lessors from partitioning the tenanted accommodation among themselves.” The apex Court Mrs. Meenal Eknath Kshirsagar V. M/s Traders and Agencies and Anr. J.T 1996 (6) S.C, P-468 has held that. Where the landlord has not available with him any other premises, he is the best judge for release of the accommodation for residential purposes. The observations of the Apex Court are quoted below:- “The fact that the appellant is the owner of the suit premises and that has does not own any other premises is the City of Bombay is not in dispute. She does not possess, even as a tenant, any premises in Bombay. No doubt, she would be entitled to stay in the premises of which her husband had parted with possession of such premises and the same were occupied by her husband’s brother, it cannot be said the said premises were available to her and by not referring to those facts she had come to the court with unclean hands and that by itself was sufficient to disentitle her from getting a decree of eviction. If the appellant believed that the ‘Olympus’ flat of which her husband was a tenant was not available for occupation as the same was vacated by her husband many years back and was occupied by Sridhar and his family and that it was not possible or convenient for her and her family to go and stay there, it was not absolutely necessary for her to refer to those facts in her plaint. “The evidence produced by the applicant did disclose that the firm had required Eknath to vacate the same and it was not right for the Appellate Bench and the High Court to brush aside that evidence on the ground that it was “internal correspondence of the company”. Eknath could not have occupied the said flat as a matter of right and in view of the arrangement between the firm and Mr. Kalra as disclosed by the evidence on record it cannot be said, in the context of judging the bonafide requirement of the appellant , that the said flat was available to her and her husband for occupation even after 1984 . Even if it is believed that Eknath had not really vacated the said flat in 1984 and continued to be in possession, it cannot be said that the possessions of the said flat was such as would disentitle the appellant to get a decree of eviction . Being a licensee Eknath’s possession of that flat was precarious and, therefore, could not have been considered as suitable alternative accommodation.” As pointed out by this court it is for the landlord to decide how and