Allahabad High Court
Smt. Rafiqunnisa And Ors. vs Abdul Waheed And Ors. on 23 August, 2006
Equivalent citations: 2007(1)AWC174
Author: Rakesh Tiwari
Bench: Rakesh Tiwari
JUDGMENT Rakesh Tiwari, J.
1. Heard counsel for the parties and perused the record.
2. This writ petition has been filed for quashing the order dated 15.3.2002, passed by Addl. District and Sessions Judge, Court No. 8, Kanpur Nagar in Rent Appeal No. 14 of 1998, Smt. Rqfiqunnisa and Ors. v. Abdul Waheed and Ors. and order dated 20.12.1997, passed by Chief Judicial Magistrate/Prescribed Authority, Kanpur Nagar in Case No. 10 of 1992, Abdul Waheed v. Smt. Rafiqunnisa and Ors..
3. At the outset, a preliminary objection has been raised by counsel for the respondents-landlord that the findings recorded by the courts below in relation to bona fide need on an application under Section 21 (1)(a) of the U.P. Urban Building (Regulation of Letting, Rent and Eviction Act), 1972 (hereinafter referred to as 'the Act') are findings of fact and they cannot be gone in to in writ Jurisdiction. He further submits that the petitioner cannot oppose the aforesaid application under Section 21 (1)(a) of the Act in view of Explanation (1) to Section 21 of the Act.
4. For the purposes of this case, Section 21(1)(a) and its Explanation (1) are relevant and are reproduced below:
21. Proceedings for release of building under occupation of tenant.--(1) The prescribed authority may, on an application of the landlord in that behalf, order the eviction of a tenant from the building under tenancy or any specified part thereof if it is satisfied that any of the following grounds exists, namely--
(a) That the building is bona fide required either in its existing form or after demolition and new construction by the landlord 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, or where the landlord is the trustee of a public charitable trust, for the objects of the trusts;
Explanation 1.--inthe case of a residential building--
(i) where the tenant or any member of his family who has been normally residing with 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;
...
5. Attention has been drawn by counsel for the respondents to paragraph 14 of the writ petition where it has been pointed out that proforma respondent No. 7, real son of the petitioner No. 1 has taken an accommodation in premises No. 131/33 Begam Purva, Kanpur in his own personal capacity and he alongwith his family members is residing in the said accommodation though it is stated by the petitioners that they have no concern with the said accommodation.
6. The following reply to paragraph 14 of the writ petition has been given in paragraph 12 of the counter-affidavit:
12. That from the Judgment of the learned District Judge in Rent Control Appeal No. 134 of 1981 filed as Annexure-9 to the writ petition, it is clear that the petitioners have got their own house No. 88/178, Shafiabad, Kanpur as well as House No. 131/21, Begumpurwa, Kanpur.
7. Counsel for the petitioner has relied upon the judgment of Hon'ble the Apex Court in Ashok Kumar and Ors. v. Sita Ram 2001 (2) ARC 1 : 2001 (3) AWC 1997 (SC), wherein it has been held that finding of fact recorded by the court below should not be in terfered with by High Court in writ jurisdiction unless there is a manifest error of law on face of record or the finding is patently perverse Explanation (1) to Section 21 (1)(a) of the Act in unequivocal terms provides that where the tenant or any member of his family who has been normally residing with 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 subsection shall be entertained.
8. It is apparent from the appellate court's judgment that the petitioners have their two houses No. 88/178, Shafiabad, Kanpur as well as house No. 131/21, Begumpurwa, Kanpur, Contention of counsel for the petitioners that the petitioners have no concern with the said accommodation of son of petitioner No. 1, at present, is of no avail and cannot be taken as defence as admittedly also, the son of petitioner No. 1 was residing with her. He has acquired an accommodation in premises No. 131/33, Begumpurwa, Kanpur Nagar, hence the petitioners-tenants are estopped from raising any objection of bona fide need of the respondents in view of Explanation (1) to Section 21 (1)(a) of the Act.
9. In this view of the matter, the preliminary objection raised by counsel for the respondents is sustainable and the writ petition is liable to be dismissed.
10. For the reasons stated above, the writ petition is dismissed with the direction that the petitioners will hand over the disputed accommodation to the landlords within ten days from today alongwith arrears of rent, if any, upto the date of vacation of the accommodation. No order as to costs.