Allahabad High Court
Fakruddin Khan (Decd) Through L.Rs. vs Xth Addl. District Judge, Kanpur And ... on 9 March, 1998
Equivalent citations: 1998(2)AWC1176
JUDGMENT S.R. Singh, J.
1. Both these petitions are knit together by reason of their stemming from common orders passed by the prescribed authority and the appellate authority in proceedings under Sections 21 (1) (a) and 21 (1A), of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (In short the U. P. Act No. 13 of 1972) in respect of House No. 3/236, Vishnupuri, Kanpur, and they were heard together.
2. Petitioner. F. U. Khan died during the pendency of the writ petition on 30.9.97 and his widow Salma Khan and son Salman Khan were ordered to be brought on record vide order dated 18.2.1998 passed on the substitution application filed by them. F. U. Khan was in occupation as a tenant of three rooms, store, garage, latrine, bathroom and a verandah, whereas the petitioner Shree Kant Tripathi is in occupation of two rooms, one Verandah, one kitchen and one bathroom besides a porch. Application for ejectment of the tenants aforestated and release of the accommodation in question was filed under Section 21 (1) (a) read with Section 21 (1A) of the U. P. Act No. 13 of 1972, by R. K. Chaturvedi, Hlrdey Kumar Chaturvedl, Anand Kumar Chaturvedi. Kamod Kumar Chaturvedi, sons of Damodar Das Chaturvedi. Smt. Beena Chaturvedi, widow of Harish Chandra and daughter of late Sri Darnodar Das Chaturvedi and Smt. Shobha Kumari wife of R. K. Chaturvedi, impleading Sri U. R. Chaturvedi, son of Sri Damodar Das Chaturvedi, as proforma--Opp. Party No. 3.
3. The release of accommodations in question was sought on the ground of bona fide need of K. K. Chaturvedi and Smt. Shobha Kumari, inter alia, with the allegation that Sri R. K. Chaturvedi. was superannuated from the service as Chief Engineer in the Irrigation Department, U. P. and during his service, he was provided with official residence at the places wherever he was posted and after his retirement he had to vacate the official residence and make temporary provision of staying with his brothers and sisters in the same house, though the accommodation available with them was neither-suitable nor sufficient enough to meet his requirements and he would suffer greater hardship if the accommodation in question was not released in his favour. The release was accordingly sought both under sub-section (1) (a) and sub-section (1A) of Section 21 of the Act. The tenements in question according to opposite party Nos. 3 to 8 were let out to the petitioners by late Damodar Das Chaturvedi who, was the L.L. of the house owned by Smt. Shobha Kumari and after his death his sons and daughters became landlords along with Smt. Shobha Kumari.
4. The release application was contested by the tenants-petitioners inter alia on the ground that the house in question was owned by Smt. Shobha Kumart. wife of R. K. Chaturvedi and that the application for release was not maintainable at the instance of the other applicants. As to the need of R. K. Chaturvedi and his family, it was alleged that his family composed of himself, and his wife only and their son and daughter-in-law had been living elsewhere being in service and that his daughter's sons were not living with him ; the need of the co-applicants, it was further pleaded ought not to be taken into consideration since they were neither the co-owners nor co-landlords of the house in question which according to the petitioners, exclusively belonged to Smt. Shobha Kumari. It was further pleaded that the need set up in the release application was mala Jide and in the event of release application being allowed, their hardship would outweigh the hardship likely to be suffered by the applicant R. K. Chaturvedi.
5. It may be recalled that clause (a) of sub-section (1) of Section 21 provides that the prescribed authority 'may', on an application of the landlord, order the eviction of a tenant from the building under tenancy or any specified part thereof if it is satisfied that the building is bona fide required either in its existing form or after demolition and a new construction for occupation by himself or any member of his family or any person for whose benefit it is held by him. either for residential purposes or for purposes of any profession, trade or calling and sub-section (1A) of Section 21 provides that the tenant 'shall' be evicted on an application made by the landlord if the prescribed authority is satisfied that the landlord of such building was in occupation of a building for residential purposes which he had to vacate on account of cessation of his employment.
6. Upon a consideration of the facts and circumstances of the case and materials on record, the prescribed authority allowed the release application in favour of the opposite parties--R. K. Chaturvedi and his wife Smt. Shobha Kumari, holding that the need was bona fide and they would suffer greater hardship as compared to the tenants in the event of release application being rejected and that the house in question was a Joint Hindu Family property acquired in the name of Smt. Shobha Kumari, wife of R. K. Chaturvedi. The tenants filed separate appeals, both of which were heard together and dismissed by the appellate court vide judgment and order dated 27.7.96, justifying release both under clause (a) sub-section (1) and sub-section (1A) of Section 21 of the Act, Aggrieved, the tenants/petitioners have filed the writ petitions aforestated.
7. The thrust of the submissions made by the learned counsel for the petitioner was that the prescribed authority and the appellate authority both erred in law in invoking the provisions of sub-section (1 A) of Section 21 of the Act by erroneously holding that the house in question belonged to Joint Hindu Family and. proceeded the submission, the erroneous conclusion so arrived at. also Impaired the entire approach to the question as to whether the need of the landlady Smt. Shobha Kumari and her husband R. K. Chaturvedi, was bona fide. The learned counsel vehemently urged that the brothers and sisters of R, K. Chaturvedi, being not the co-owners/co-landlords of the house in question, the accommodations in their occupation, should be treated to be accommodation in possession of the landlady. Smt. Shobha Kumari for purposes of determining whether her need was bonajide. On a careful examination of the pleadings of the parties and materials on record. I find that the prescribed authority and the appellate authority have erroneously held that the house in question belonged to Joint Hindu Family of which Damodar Das Chaturvedl was the Karta. True, the accommodations in question, were tenanted to the petitioners by late Damodar Das Chaturvedi and the petitioners throughout accepted him as the landlord of the accommodations In question but from the pleadings of the respondents, it appears that it was not their case that late Damodar Das Chaturvedi was the landlord perceptibly being owner of the house in question. It brooks no dispute that in the municipal record, the ownership of the house in question is recorded in the name of Smt. Shobha Kumari, wife of R. K. Chaturvedi and the sale deed too bore her name.
8. According to paragraph 1 of the release application, late Damodar Das Chaturvedi was the landlord and he had "inducted the opposite parties as tenants in two separate portions detailed at the foot of the petition. The heirs of late Sri Damodar Das Chaturvedi are stated to have become landlords along with Smt. Shobha Kumari after the death of Damodar Das Chaturvedi. Paragraph 4 of the release application contains a clear averment that Smt. Shobha Kumari is the owner of the house in suit and sons of late Sri Damodar Das Chaturvedl. after his death, became landlords being his heirs. The petitions have come out with the specific case that the house in dispute is owned by Smt. Shobha Kumari. wife of R. K. Chaturvedi, and that the sale deed of the house in question stands In her name. In paragraph 3 of his affidavit filed before the prescribed authority, the respondent. R. K. Chaturvedi stated : "admittedly, the property Is in the name of petitioner No. 6. All the averments to the contrary are false and denied. It is also reiterated that late Damodar Das Chaturvedi had invested considerable funds in the purchase of the property in question. The petitioner Nos. 1 to 5 and proforma opposite party No. 3 have never claimed to be the owner of the property. The Nagar Mahapalika records do not contain the name of the landlord but of the owner and as such the name of Smt. Shobha Kumari, wife of deponent is recorded therein." Again in paragraph 6 of the said affidavit, it has been stated : "It has nowhere been alleged that the petitioners 1 to 5 and proforma opposite party No. 3 are the owners of the property in question." In paragraph 4A of the release application, it was stated that the building in question was constructed in the year 1966-67 and about Rs. 60,000 were Invested in the construction of the said building out of which Rs. 20,000 were contributed by late Damodar Das Chaturvedi from his own earned funds as the Manager and Karta of the Joint Hindu Family and in para 4B it was pleaded that Smt. Shobha Kumari "is obliged to pay to petitioners 1 to 5 and opposite party No. 3, the said sum of Rs. 20.000 along with interest at the market rate which will work out to Rs. 3 lacs approximately up-to-date of release petition." In paragraph 4C of the release application. It has been stated that late Damodar Das and Smt. Shobha Kumari" allowed the said building to be used and occupied by petitioners 2 to 5 and opposite party No. 3 and since then they are continuously and peacefully using the same even in such position as licensees. "From these averments, it is amply clear that it was not the case of the contesting opposite parties that the house in question was the Joint Hindu Family property. It may be that the family consisting of late Damodar Das Chaturvedl and his sons constituted a Joint Hindu Family but from the above facts, the house in question seems to have been held to be a Joint Hindu Family property on misconstruction of the case set up in the release application and, therefore, the finding in that respect cannot be sustained. This being the position, the provisions of sub-section (1A) of Section 21 of the Act would not be attracted and I am of the view that the authorities under the Act have wrongly taken aid of the said provisions on the basis of erroneous finding that R. K. Chaturvedi was the co-owner of the house along with his brothers and wife Smt. Shobha Kumari. It could not be repudiated that subsection (1A) of Section 21 of the Act would be attracted to a case where the landlord himself and not a member of his family had been in occupation of a public building for residential purposes which he had to vacate on account of cessation of his employment. The term "landlord" in Section 21 (1A) of the Act connotes landlord in the sense of being the owner of the building. The view I am taking, finds reinforcement from the Supreme Court decision in M. M. Quasim v. Manohar Lal AIR 1981 SC 1113.
9. In the instant case. Smt. Shobha Kumari and not her husband R. K. Chaturvedi being the owner-landlady of the house in question, the provisions of sub-section (1A) could not be invoked since she was not in occupation of a public building which she had to vacate on cessation of her employment. The fact that the husband of the landlady was in occupation of a public building which he had to vacate on cessation of employment, would not attract Section 21 (1A) notwithstanding the fact that he is a member of the landlady's 'family' within the periphery of the word as defined in Section 3 (g) of the Act.' But the fact that brothers and sisters of R. K. Chaturvedi had been living in a portion of the house in question since the lifetime of their father late Damodar Das Chaturvedi, has not been called in question and, therefore, even though the brothers and sister of R. K. Chaturvedi were not the members of the landlady's family, that would make no odds in so far as 'bona fide' need of the landlady and her husband, R. K. Chaturvedi is concerned. In order to vouchsafe that the accommodation in question was bona fide required by them for their personal residential use. as visualised in clause (a) of sub-section (1) of Section 21, it would not be necessary for them to evict the non-co-owner sons and daughter of Damodar Das Chaturvedi. In Firoz Behanji Dara v. Chandra Kant N. Patel, (1974) 1 SCC 661, it has been held that the fact that the landlord had another tenement given out on leave or licence basis cannot be a ground for denying him the remedy against tenant for eviction on the ground of bona fide personal requirement for it is only a vacant accommodation available with the landlord/landlady that is taken into account while considering his/her bona fide need for personal use. An accommodation which is not available to him/her in vacant state, is not to be reckoned into consideration while determining his/her bona fide need under Section 21 (1) (a) of the Act.
10. Concededly, R. K. Chaturvedl has retired and neither he nor his wife. the landlady had any other vacant accommodation at their disposal. In Laxmi Chand v. 3rd Addl. District and Sessions Judge, Mathura and Others. 1981 ARC 471, it was clearly held by a learned single Judge of this Court that bona fide need of landlord should be weighed up keeping in view only actual vacant accommodation owned by him and not on the basis of imaginary vacancy, Le., the accommodation already in occupation of licensee/unauthorised occupants/ tenants. Same view has been echoed in Laxman Prasad v. IXth Addl. District Judge, Allahabad, 1990 (2) ARC 344. Considering these decisions, it cannot be deduced that the authorities under the Act have acted illegally in not taking into account the accommodation in occupation of the brothers and sister of R. K. Chaturvedi (opp. parties No. 5 to 8) holding that the respondent landlady Smt. Shobha Kumari and her husband R. K. Chaturvedl bona fide required the accommodation in question for their personal residential use within the meaning of Section 21 (1) (a) of the Act. Finding as respect to 'bona fide' need is based on proper-self-direction to relevant factors including status of the family of the landlady, and the finding being based on appraisal of materials on record. is not open to challenge under Article 226/227 of the Constitution for legal principles relevant to Section. 21 (1) (a) have been well kept in mind by the authorities under the Act and they have converged to a definite conclusion, on an objective determination and proper appreciation of evidence in the light of surrounding circumstances, that the landlady and her husband 'bona fide' required the accommodations in question for their own residential purposes. The submission that in arriving at the said conclusion, the authorities under the Act have weighed up the need of the brothers and sister of R. K. Chaturvedi who are not the members of the landlady's "family" within the meaning of Section 3 (g) of the Act, is misconceived and therefore, cannot be countenanced. The Courts cannot infringe upon the freedom of the landlady in the matter of her choice as to eviction between the tenants on one hand and brothers and sister of her husband who have been living in a portion of the house in question, since the lifetime of late Damodar Das Chaturvedi, who is said to have made monetary contribution in the purchase and construction of the house to the extent of one-third and the landlady rightly felt to be under an obligation not to evict them "unless she pays the said amounts to them "as averred in para 4B of the release application. In Prativa Devi v. Krishnan, (1996) 5 SCC 353, it has been held as under:
"The landlord is the best judge of his residential requirements. He has 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.....There is no law which deprives the landlord of the beneficial enjoyment of his property."
11. In view of the above discussion, I am of the considered view that albeit sub-section (1A) of Section 21 of the Act is not attracted to the facts of the present case, yet the concurrent orders of eviction passed by the authorities under Section 21 (1) (a) are unexceptionable.
12. Finding on the question of comparative hardship was not assailed during the course of argument and I find from the impugned order that the authorities under the Act have, on objective determination and proper-appreciation of the facts and circumstances of the case including the availability of accommodation with the parties, rightly clinched the issue In favour of the landlady.
13. In the result, the petitions fail and are dismissed with cost on parties. Interim orders stand discharged.