Allahabad High Court
Shri K.L. Malhotra Son Of Late Shri ... vs The V Additional District Judge, The ... on 11 December, 2007
Equivalent citations: 2008(1)AWC934
JUDGMENT S.U. Khan, J.
1. The first writ petition filed by landlord arises out of eviction/release proceedings initiated by him against tenant-respondent No. 3 Mukesh Kumar Goel on the ground of bonafide need under 21 of U.P. Act No. 13 of 1972 before Prescribed authority/Civil Judge, Ghaziabad in the form of P.A. Case No. 64 of 1987. Property in dispute is residential in nature situate on ground floor containing three rooms, two verandas, kitchen, court yard, bath room and latrine. Out of three rooms one room is quite big 17 feet x 14 feet. Petitioner stated that he was employed in Madhya Pradesh and retired on 31.7.198, thereafter he shifted to Ghaziabad and was residing on the first floor which contained only two verandas. Petitioner's family at the time of filing of the release application consisted of himself, his wife and two sons. (Petitioner's daughter had been married by then).The Prescribed authority allowed the release application in part through judgment and order dated 17.2.1990. Prescribed authority held that on the first floor the two verandas in which landlord was residing were like rooms and could be converted into two rooms by making minor alteration i.e. by raising two small portions of walls with doors and windows. Prescribed authority released only one room (10 feet by 9 feet) on the ground floor in tenancy occupation of respondent No. 3. The other option given to the landlord by Prescribed Authority was to exchange the accommodation with the tenant. Against the said judgment and order both the parties filed appeals. Landlord's appeal was registered as R.C. Appeal No. 30 of 1990 and of tenant as R.C. Appeal No. 45 of 1990. Vth Additional District Judge, Ghaziabad substantially dismissed both the appeals. On 3.3.1992 However, learned A.D.J., held that the directions given, observations made by the Prescribed authority that either one room on the ground floor shall stand released in favour of the landlord or if landlord wanted to have the entire ground floor accommodation then he should handover possession of the first floor accommodation to the tenant after converting the verandas into rooms were not correct. The appellate court reversed the order of the trial court regarding exchange of accommodation after making alteration in the verandah on the first floor. Appellate Court directed release of one room. Before the Prescribed authority the tenant had offered that he was ready to vacate one room on the ground floor for the landlord and in the alternative entire tenanted accommodation in case first floor accommodation was given to him in exchange after making some alteration therein by the landlord.
2. Through the first writ petition the above orders of Prescribed authority and appellate court have been challenged by the landlord.
As far as second writ petition is concerned, it has also been filed by the same landlord and arises out of release proceedings under Section 16 of the Act with regard to the same property against the same tenant. R.C. & E.O., Ghaziabad through order dated 31.1.1990 passed in case No. 11 of 1987 - Om Prakash v. K.L. Malhotra (which was initiated on the allotment application of Om Prakash a third party) released the accommodation in dispute in favour of the landlord after declaring the same to be vacant. Against the said order tenant respondent No. 3 filed R.C. Revision No. 12 of 1990. Vth Additional District Judge, Ghaziabad allowed the said revision on 3.3.1992 and set aside the release order. Revisional court held that the landlord in release proceedings under Section 21 of the Act had admitted Mukesh Kumar Goel as tenant hence there was no question of any vacancy. (landlord in proceedings under Section 16 of the Act had contended that initially Shri V.P. Goel real brother of Mukesh Kumar Goel was tenant who had shifted to his own house and had sub-let the premises to his brother Mukesh Kumar Goel). In my opinion the view taken by the revisional court is perfectly correct in law. In the release application under Section 21 of the Act landlord-petitioner no where stated that Mukesh Kumar Goel was not the tenant or was only sub-tenant and not tenant. In the said application it was clearly mentioned that Mukesh Kumar Goel was the tenant.
Accordingly, second writ petition deserves to be and is (sic) dismissed.
3. As far as first writ petition arising out of proceedings under Section 21 of the Act is concerned, in my opinion Prescribed authority wrongly directed in the alternative that landlord should exchange the accommodation in his possession for the accommodation in dispute. Under Rule 16(1)(f) it is provided that where the landlord offers to the tenant alternative accommodation then landlords claim for release shall be consrued liberally. However, there is no provision under the Act or the rules under which tenant or the court can compel the landlord to offer alternative accommodation to the tenant.
4. If for want of proper accommodation landlord is residing in verandas after making some changes therein then his need for proper residential accommodation stands proved. Make shift residence is no ground to reject release application for proper accommodation.
5. Hon'ble Supreme Court in C. Prasad v. U.K. Verma A.I.R. 2002 S.C. 108 has held that the availability of a less suitable shop or commercial accommodation can not be a ground to reject the release application for a more suitable accommodation.
6. In the following authorities the Supreme Court has held that landlord is completely free to choose the place where he wants to do business or reside:
1. Sarla Ahuja v. United India Insurance Co. Ltd.
2. S.N. Kapoor v. B.L. Khatri
3. Raghavendra Kumar v. Firm Prem Machinery & Co. A.I.R. 2001 S.C. 534
4. R.K. Govil v. Maqsoodan .
7. A three room accommodation alongwith kitchen, two verandas, court yard, bath room and latrine out of which one room is quite big i.e. 17 feet x 14 feet in Ghaziabad is in tenancy occupation of respondent No. 3 for only Rs. 225/- per month. Ghaziabad is included in National Capital Region and has become almost part of Delhi. Current rent of the accommodation in dispute must be more than 50 times of the existing rent. Tenant by paying this highly inadequate rent must have saved a lot of money which he would have otherwise been required to pay as reasonable rent. Money saved is money earned. The tenant should therefore be able to purchase another accommodation or take on good rent another accommodation. The tenant should have therefore made more sincere efforts to purchase or take on good rent some other accommodation, which he did not do. The question of hardship has therefore to be decided against him. Landlord retired 20 years before hence at present he must be nearing 80 years of age. Two verandas on the first floor and only one room on the ground floor can not be said to be sufficient, for a family of old husband and wife and two sons (daughter of the landlord is already married).
8. Accordingly, I am of the opinion that on the findings recorded by the courts below the need of the landlord for the entire tenanted accommodation is fully proved. Balance of comparative hardship also lay in his favour.
9. Accordingly, first writ petition is allowed. Both the impugned judgments and orders in so far as they are against the landlord are set aside and release application filed by the landlord-petitioner under Section 21 of the Act is allowed in toto.
10. Tenant-respondent No. 3 is granted six months time to vacate provided that:
1. Within one month from today tenant-files an undertaking before the Prescribed Authority to the effect that on or before the expiry of aforesaid period of six months he will willingly vacate and handover possession of the property in dispute to the landlord-petitioner.
2. For this period of six months, which has been granted to the tenant-respondent No. 3 to vacate, he is required to pay Rs. 12,000/-(at the rate of Rs. 2,000/- per month) as rent/damages for use and occupation. This amount shall also be deposited within one month before the Prescribed Authority and shall immediately be paid to the landlord-petitioner.
11. In case of default in compliance of any of these conditions tenants-respondent shall be evicted through process of Court after one month. It is further directed that in case undertaking is not filed or Rs. 12,000/- are not deposited within one month then tenant-respondent shall be liable to pay damages at the rate of Rs. 5,000/- per month since after one month till the date of actual vacation.
12. Similarly, if after filing the aforesaid undertaking and depositing Rs. 12,000/- the accommodation in dispute is not vacated on the expiry of six months then damages for use and occupation shall be payable at the rate of Rs. 5,000/- per month since after six months till actual vacation. It is needless to add that this direction is in addition to the right of the landlord to file contempt petition for violation of undertaking and initiate execution proceedings under Section 23 of the Act.