Allahabad High Court
Radhey Shyam Shukla vs Viith Additional District Judge And ... on 3 August, 2004
Equivalent citations: 2005(1)ARC37
JUDGMENT S.U. Khan, J.
1. This is landlord's writ petition arising out of arising out of eviction/release proceedings initiated by him against the tenant respondent No. 2 on the ground of bona fide need under Section 21 of U.P. Act No. 13 of 1972, in the form of Rent Case No. 157 of 1992 on the file of P.A./ACMM (VIII), Kanpur Nagar.
2. During the pendency of writ petition landlord Radhey Shyam Shukla died and his son Vinod Kumar Shukla has been substituted at his place.
3. The landlord in release application pleaded that he required the premises in dispute for two of his grand sons who intended to open Computer Training Center in premises in dispute. It was further pleaded that daughter-in-law of the landlord to open Coaching Center for which also accommodation in dispute was required. It was further pleaded that the eldest grand son of the landlord was to be married and one room was required for his bedroom also. Residential need for landlord and other member of his family was also pleaded. It was further stated that the tenant respondent No. 2, in the tenanted accommodation, which is situate on the ground floor, was carrying on the medical practice and that tenant had his own house in Ashok Nagar, Kanpur and he had a clinic in his residential house also at Ashok Nagar, Kanpur.
4. The trial Court/Prescribed Authority by judgment and order dated 15.11.1994 allowed the release application. Against the said judgment and order tenant respondent No. 2 filed an appeal under Section 22 of the U.P. Act No. 13 of 1972. The appeal was registered as Rent Appeal No. 129 of 1994. VII, Additional District Judge, Kanpur Nagar through judgment and order dated 7.4.1995 allowed the appeal, set aside, the judgment and order of the Prescribed Authority and dismissed the release application of the landlord.
5. The first floor error which was committed by the Lower Appellate Court was that it held that in the release application the need set up was only and only for commercial purposes and not for residential or residential-com-commercial purposes. Copy of release application is Annexure-1 to the writ petition. In Paras 7, 8, 9, 10 of the said release application, the need for residential purposes was also set up.
6. The Appellate Court held that grand son is not included in the definition of the family of landlord; hence, Rule 16 (2) (d) of the Rules framed under the Act was not attracted. Rule 16 (2) (d) is quoted below:
16 (2) (d).--"where a son or unmarried or widowed or divorced or judicially separated daughter or daughter of a male lineal descendant of the landlord has, after the building was originally let out completed his or her technical education and is not employed in Government service, and wants to engage in self-employment, his or her need shall be given due consideration."
7. The Lower Appellate Court took a very strange view by holding that if commercial need set up grand son of landlord was of such nature, which did not require technical competence, then tenanted property could be released. However, according to Lower Appellate Court if need set up for the grandson, required technical competence then tenanted property could not be released even though grandson of the landlord possessed technical qualification as it would be against Rule 16 (2) (d). I completely fail to appreciate this approach. Firstly, if need of grandson can be considered then Rule 16 (2) (d) will squarely be attracted. Secondly, Rule 16 (2) (d) is mandatory and not prohibitory in nature. By no stretch of interpretation, it can be said that if the case is not covered by the said sub-Rule then building cannot be released for commercial purposes. Even otherwise according to the said sub-Rule technical education of son etc. makes it mandatory for the Prescribed Authority to release the commercial accommodation. The said sub-Rule does not say anything regarding technical education of the landlord himself. It cannot be said that if landlord himself has acquired technical education then he cannot seek release for the reason that under the said sub-Rule technical education of landlord himself is not mentioned. Under Rule 16 (2) it is provided that "While considering an application for release under clause (a) to Sub-section (2) of Section 21 in respect of a building let out for the purpose of any business. Prescribed Authority shall also have regard to such facts as the following."
8. The use of the word also makes it quite clear that contingencies provided under Clauses (a) to (d) of Rule 16 (2) are not the only factors to be taken into consideration while deciding the question of release of commercial accommodation on the ground of bona fide need under Section 21 of the Act.
9. The Lower Appellate Court also held that the grandsons and daughter-in-law of the landlord did not file any affidavit to the effect that they wanted to start the business of computer training and coaching center hence their need could not be held to be bona fide. This view of the Lower Appellate Court was quite erroneous in law. It is nowhere required that a person for whose need building is sought to be released should also file his affidavit. In this regard reference may be made to Mohd. Idrish Mekrani v. District Judge, Gorakhpur and Ors., 1996 (1) ARC 463. Learned Counsel for the tenant respondent has cited an authority of Uttaranchal High Court reported in 2003 (1) ARC 678. The said authority is completely distinguishable. In the said case, the need set up was for establishing Chamber for Advocate daughter. During the pendency of the case the said daughter was selected in judicial service. In that context the Court held that unless the said daughter filed affidavit that she did not intend to join service it could not be held that her need survived.
10. Regarding comparative hardship the Lower Appellate Court held that neither it was proved that tenant was carrying on his medical practice from his residential house in Ashok Nagar, Kanpur also nor it was proved that the said house was suitable for medical practice. In the release application, in Para 12, it was stated that the residential house of the tenant at Ashok Nagar, Kanpur consisted of eight rooms i.e. four rooms on ground floor and four rooms on first floor. The tenant in Para 15 of the written statement stated that on each floor he had three rooms and one storeroom. Numbers of family members were not given by the tenant. He only stated that he was residing in his house at Ashok Nagar, Kanpur with his two sons and their families. The case of the tenant was that from the accommodation in dispute he was carrying on medical practice and one of his sons who was also a doctor had joined him in the practice carried out from the premises in dispute. The tenant also stated and Lower Appellate Court accepted that he had a good practice from the accommodation in dispute.
11. Doctor's clinic and Advocate's chamber enjoy special status. These may be established either in a part of residential accommodation or in exclusive commercial buildings. The tenant can therefore, very well run his medical practice from his own residential house unless there is no accommodation available for the same. Paucity of accommodation has neither been pleaded nor proved by the tenant. The tenant stated that he was having good practice for a very long time from the premises in dispute. It means that he must have earned lot of money. Probably he constructed his own house out of the income earned from medical practice carried out by the tenant from the accommodation in dispute. In such situation it was his duty to purchase suitable accommodation for his medical practice after filing of the release application. Nothing has been brought on record to show that after filing of the release application efforts were made by the tenant even for taking on rent some alternative accommodation. It has been held by the Supreme Court in the authority in Badrinarayan Chunilal Bhutada v. Govindram Ramgopal Mundada, 2003 SCFBRC 167, that after filing of the release application the tenant must make genuine efforts to purchase or to take on rent other accommodation otherwise question of hardship will have to be decided against him. The allegation made by the tenant that in Ashok Nagar, Kanpur where he was having his residential accommodation, there were already several doctors and his medical practice was not likely to flourish there, even if accepted, is not so vital that it may reverse the balance of hardship.
12. Accordingly, I find that the findings of bona fide need and comparative hardship recorded against the landlord petitioner by lower Appellate Court are erroneous in law and liable to be quashed.
13. Consequently writ petition is allowed. Impugned judgment and order passed by the Lower Appellate Court is set-aside and judgment and order passed by Prescribed Authority is restored.
14. Tenant respondent is granted six months' time to vacate provided that within one month from today he files an undertaking before the Prescribed Authority to the effect that on or before expiry of the aforesaid period of six months, he will willingly vacate and handover possession of the property in dispute to the landlord petitioner failing which tenant respondent must be evicted from the premises in dispute through process of Court in execution proceedings under Section 23 of the Act after one month.