Begam Manzoor Hasan vs 6th Addl.District Judge, Lucknow and others

H. N. Tilhari, J.—This petition is directed against the judgment and order dated 28294 passed by Shri S. N. Shukla, VI Additional District Judge, Lucknow, in Rent Appeal No. 4 of 1990, Begam Manzor Hasan & others Vs. Dr. Akhil Mehrotra & others and Rent Appeal No. 6 of 1990 Dr. Akhil Mehrotra & others Vs. Begam Manzoor Hasan and others, whereby the Additional District judge has been pleased to dismiss Rent Appeal No. 4 of 90 on one hand and on the other hand to allow Pent Appeal No. 6 of 90, of the landlords and to modify and mend the order dated 121289 allowing the application for release moved under section 21 of U. P. Act No. XIII of 1972 which had been moved by oppositeparties 3 and 4 i.e. the landlords for release of the accommodation in dispute and releasing the accommodation in favour of the landlordopposite parties. The appellate court had granted 30 days'' time to the petitioners to hand�over the vacant possession of the accommodation in dispute to the landlords i.e. oppositepartes 3 and 4 and he directed that in case of failure to vacate and handover vacant possession within this period of 30 days it will be open to the landlordsopposite parties to take execution of that order and possession thereof. Landlord opposite parties moved appli�cation for release of Flat no. 77, Halwasiya Market, Lucknow, in their favour, which has been in occupation of the present petitioners on a monthly rental of Rs. 91. 87. According to oppositeparties 3 and 4 the landlords'' father Dr. P N. Mehrotra had been residing in a rented house at Havloc Road and since after the death of Dr. P. N. Mehrotra the applicant oppositeparties and their widowed mother i. e. sons and widow of Dr. P. N. Mehrotra used to reside in that rented house and the family consisted of nine members. According to the landlordsapplicants the accommodation in the rented house in which the landlordapplicants had been residing there was one drawing room, three small rooms, one verandah, kitchen, two bath room and two latrines and a storeroom. According to the landlords, the two doctor brothers i. e. oppositeparties 3 and 4 had been married persons having their children and their mother as well as their two brothers residing with them and According to them the accommodation which was in their occupation at Havloc Road on lease had been insufficient to suffice the requirements of the family of the two doctors. The details were mentioned to indicate why the accommo�dation in which they were residing as tenants was insufficient to suffice the requirements. It was also mentioned in the application that there used to be tense relations and bickering amongst the wives of the oppositeparties and the motherinlaw in the family. Looking to the circumstances and the diffi�culties of the family on account of paucity of the accommodation in that rented accommodation, the applicants had applied for release of their accommodation, namely, Flat no. 77, Halwasiya Market, Lucknow. Notice was given to the tenants i. e. the present petitioner, of the release application. The present petitioners filed their reply i. e. written statemeat denying the claim of the landlords. The present petitioners in their written statement before the Prescribed Authority submitted that there was no bonafide and pressing need of the landlords for the accommoda�tion in dispute. It was further asserted in the written statement that originally Mohd. Manzoor Hasan deceased was a tenant of the accommo�dation and he was occupying the present accommodation in dispute along with his wife, son, daughterinlaw, a daughter and granddaughter. The tenant further stated in the written statement that he has no alternative accommodation and in case the release application is allowed the tenants will be thrown on the street. It was also submitted in reply to the release application by the present petitioners that Mohd. Zaheeruddin, the only son of Manzoor Hasan was working as Translator in Hindstan Aeronautics Ltd. and he has not got any government accommodation with him for residence. It was further submitted in the written statement that accommodation in nearby colonies at Hindustan Aeronautics Ltd., were at high rate which was beyond the financial limits and capacity of tenantpetitioners to pay rent and in such circumstances it was submitted in the written statement that tenants will suffer greater hardship on the release application being allowed as the tenant will be thrown on the street. On behalf of the parties, affiidavits, counteraffidavits and documents were filed. After consideration of the material on record the Prescribed Authority (Rent Control) recorded the following findings :

The Prescribed Authority further observed in his order at inner page 6, i. e. page 48 of the paper book as under :

A perusal of these observations will show that the Prescribed Authority had taken the view that because of economic factor the tenant, the present petitioners may not be able to get the accommodation in the colony nearby Hindustan Aeronautics as the rental is high and there had been responsibility on the tenant to marry his sister as well, therefore, the difficulty of the tenant will be greater. At page 50 of the judgment the learned Prescribed Authority has again recorded the findings as under :

Thereafter the Prescribed Authority based its finding on the ground that the house in the nearby colony at Hindustan Aeronautics Ltd. are on high rental so he directed that the landlordopposite parties should make an accommodation available to the tenantpresent petitioners then and then only the release application may be granted and did grant the release subject to the condition that the landlordsopposite parties gets an arrangements made of alternative accommodation for the tenants. The Prescribed Authority in the order observed as under :

Thereby the Prescribed Authority directed that landlords should make their efforts to get accommodation allotted to the tenants in Hindustan Aeronautics Ltd. colony and should do the needful in the matter what�ever is necessary. Subject to this condition the Prescribed Authority i. e III Addl. Civil Judge, Lucknow allowed the release application, partly. Feeling aggrieved from that judgment and order of the Prescribed Authority both, i. e. tenant petitioners as well as landlordopposite parties 3 and 4 filed the two appeals i.e. Rent Appeal No. 4 of 1 990 and Rent Appeal No. 6 of 1990 respectively. The VI Additional District Judge, Lucknow exercising the powers of the appellate court upheld the rinding of the Prescribed Authority as regards the question of bonafide and pressing need of the landlords. The learned Additional District Judge further took the view that there is nothing on record to show with refere�nce to the comparative hardship and that it has not been shown that there is greater pressing need of the tenantpetitioner than that of the landlord opp. parties. It means that there is no greater hardship likely to be caused to the tenant petitioners by grant of release application. He observed as under :

The learned Additional District Judge further observed that it is admitted that Mohd. Zaheeruddin has been working in Hindustan Aero�nautics Ltd. as Translator. He further admitted that facilities of resi�dential accommodation are provided in the Hindustan Aeronautics Ltd. and that he is getting house allowance. He had mentioned that he has moved an application for accommodation being allotted in the Hindustan Aeronautics colony but so far he has not been able to get the acco�mmodation but no copy of the same appears to have been filed. Anyway this aspect of the matter has also been taken into consideration. The obser�vations of the learned Additional District Judge in this regard read as under :

Thus, considering the matter, the Additional District Judge allowed the landlords appeal and rejected the tenants i. e. present petitioner:*'' appeal and released the accommodation in favour of the landlordopposite parties.

Notice of this petition has been accepted on behalf of oppositeparties 3 and 4 by Shri Ravi Prakash, Advocate, who has filed caveat on behalf of the said oppositeparties and he has put in appearance on behalf of said oppositeparties. I have heard Shri S. C. Misra, learned counsel for the petitioners at great length. Learned counsel for the petitioners has submitted before me that the appellate court has not considered the comparative hardship and that finding on the comparative hardship is based on wrong assumption that the petitioner no. 2 is employed in Hindustan Aeronautics Ltd. and he has been provided with the accommodation. Shri Misra submitted that no such admission has been made in the case and the learned Additional District Judge wrongly assumed that admission has been made by petitioner no. 2 and he has further submitted that the learned Prescribed Authority in his order has really found comparative hardship of the petitioners to be greater than that of the landlords and the learned Additional District Judge in his order has observed that no other conclusion could be drawn than that what has been drawn by the Prescri�bed Authority. He referred to the observation of the learned Additional District Judge contained at inner page 7 of annexure1 at page 37 of the paper book which read as under :

As regards these observations of the learned Additional District Judge appears to have affirmed the finding of the Prescribed Authority regarding pressing and bonafide need of the landlords that the need of the landlords was pressing and bonafide and more pressing than that of the tenants. The learned Additional District Judge, as 1 have quoted above, referred to the admission of petitioner no. 2 that he is an employee in Hindustan Aeronautics Ltd. He has also mentioned that the Prescribed Authority has also found it that one of petitioners is an employee and working in Hindustan Aeronautics, The Prescribed Authority in his order has also observed as under :

These observations of the Prescribed Authority per se show that the Prescribed Authority had admitted that the petitioner no. 2 has been employed in Hindustan Aeronautics Ltd. and that facility of accommoda�tion is provided to the employees but so far no house has been allotted to him inspite of efforts being made. These observations definitely would lead to an undisputed position that it is admitted to the tenantpetitioners that facilities of accommodation are provided and are being made available to the employees of Hindustan Aeronautics Ltd., here when he so observed that facility of residential accommodation are provided to the employees of Hindustan Aeronautics Ltd., he did not commit any error as the Additional District Judge only says that facilities of residential accommodation are also provided to the Hindustan Aeronautics employees. He further says that in case residential accommodation is not provided to any employee he gets house rent allowance. I cannot read these observatios made by the Additional District Judge that the Additional District Judge has taken the view that petitioner no. 2 has been provided with the residential accommodation as contended by the learned counsel for the petitioners and, therefore, it cannot be said that the learned appellate court has in any manner misread either the admission or observation of the Prescribed Authority. On query being made from the learned counsel for the petitioners it has come that petitioner no. 2 gets monthly salary of Rs. 3.000/ per month and in case the accommodation is not provided to the employees they get house rent allowance and considering that aspect of the matter the Additional District Judge in the last paragraph of his judgment has observed that nothing had been shown from the record that comparatively that requirement of the tenants are greater than that of the landlords and greater hardship would be caused to the tenants by eviction or by grant of release application. The law on the subject has well been laid down by their Lordships of the Supreme Court in the case of Beget Begum Vs. Abdul Ahod Khan reported in (AIR 1979 SC 272) and their Lordships have observed as under :

"It is no doubt true that the tenant will have to be ousted from the house if a decree for eviction is passed, but such an event would happen whenever a decree for eviction is pasted and was fully in contemplation of the legislature when section 11 (1) (h) of the Act was introduced in the Act. This by itself would not be a valid ground for refusing the plaintiffs a decree for eviction."

Section 11 (1) (h) of J& K Houses and Shops Rent Control Act (34 of 1966) which is analogous to section 21 (1)of U. P. Act XIII of 72, reads as under :

"11 (1) (h)......where the house or shop is reasonably required by the landlord either for purposes of building or rebuilding or for his own occupation or for the occupation of any person for whose benefit the house or shop is held;

"Explanation : The Court in determining the reasonableness of re�quirement for purposes of building or rebuilding shall have regard to the comparative public benefit or disadvantage by extending or diminishing accommodation, and in determining reasonableness of requirement for occupation shall have regard to the comparative advantage or disadvantage of the landlord or the person for whose benefit the house or shop is held and of the tenant."

In that connection their Lordships of the Supreme Court further observed in paragraph 23 of that judgment as under

"If the defendants had proved that they will not be able to get any accommodation anywhere in the city where they could set up a hotel, this might have been a weighty consideration, but the evidence of all the witnesses examined by the defendants only shows that the defendants may not get alternative accommodation in that very locality where the house in dispute is situated. There is no satisfactory evidence to prove that even in other business localities there is no possi�bility of the defendants getting a house. To insist on getting an alternative accommodation of a similar nature in the same locality will be asking for the impossible."

11, Their Lordships further observed :

"That the tenants cannot be allowed to dictate to the landlord that they cannot be evicted unless they get a similar accommo�dation in the very same locality."

Here I may observe that the Prescribed Authority has acted beyond his jurisdiction when he put a condition while granting release application with a condition that the landlords would arrange for an alternative accommodation for the tenants and even has gone to the extent in suggesting that the landlords being doctors and persons of status they can try to arrange with the Hindustan Aeronautics Ltd. authorities for getting the accommmodation allotted in favour of the tenants. The observation of the Prescribed Authority to that effect and the condition imposed by the Prescribed Authority is contrary to the observations and law laid down by the Supreme Court.

In view of the above observations of their Lordships of the Supreme Court, I do not find any substance in the contention of the learned counsel for the petitioners. Before me it has not been submitted that the tenants had made any effort to find out any other accommodation keeping pace with their financial status. A person must try to find out accommoda�tion keeping pace with his means or he should have applied wiih the rent control authorities for allotment of certain accommodation. There is no doubt that grant of release application will entail consequence on the tena�nts of being ousted from the accommodation. If it be taken that the tenant would be ousted from the accommodation, is not such a consequence that the landlord''s application for release should not be allowed even if he proves bonafide need and there is''necessity to release the accommodation, it should be rejected simply on the ground that alternative accommodation is not being provided to the tenants as a condition imposed. In my opinion it will frustrate the very purpose of section 21 of the Act and that will not only frustrate the purpose of section 21 of the Act simpliciter but it will discourage the entrepreneures to invest their money in house building scheme because in that case they may not invest money. In the present case no circumstance and no evidence has been shown that the tenantpetitioners have tried to fiind out any other accommodation keeping pace with their financial means instead they themselves want that the landlords should find out accommodation for them and unless they find out the accommodation the release application should not be allowed. Here I may again observe that until the tenants show that they made genuine efforts to find out accommodation for purposes of their residence but they could not get any they cannot say that their hardship is greater simply on the ground that they will be evicted. In my opinion, the finding on the question of bonafide needl as well as on the comparative hardship has been recorded by the appellate court as well and the learned Prescribed Authority has also found that hardship of the landlords has been more pressing and has recorded a finding that :

"AVASHYAKTA KE ANUSAR DR. NIKHIL MEHROTRA KO VIVADIT MAKAN MEN JANA ATYADHIK AVASHYAK HAI"

The eviction, no doubt, brings difficulties but merely because eviction causes difficulty to a tenant cannot be said and considered that greater hardship would be caused to the tenant. In my opinion, the writ petition is concluded by pure findings of fact and as regards bonafide need and comparative hardship that is in favour of the landlord oppositeparties 3 and 4. The finding on the question of bonafide need and comparative hardship are pure findings of fact and nothing could be shown to the satisfaction of this court that the finding suffers from any error of law or jurisdiction. In this view of the matter, I find no force in this petition and it is hereby dismissed. No doubt the petitioners have to vacate the accommodation in dispute and have to search for another accommodation, the petitioners may be allowed some reasonable time to hand over vacant possession of the accommodation in dispute to the landlordopposite parties. Considering the circumstances prevailing in regard to the resi�dential accommodation, it appears proper to me that the petitioners be allowed one year''s time to hand over vacant possession to the landlordopposite parties, subject to the following conditions :

(a) that the petitioners or any of them acting on behalf of the petitioners submit an undertaking in the form of an affidavit that they shall hand over vacant pessession without any objection to the landlordopposite parties and to none else.

(b) that they continue to pay damages or rent whatsoever it may be, for use and occupation for the accommodation in dispute at the rate of Rs. 91. 87 per month as had been agreed, every quarterly in advance in this court in the first stage in advance by or before 15494 and thereafter on 15794 and likewise. The undertaking shall be furnished as mentioned above by or before May 2, 1994.

15, Thus, subject to above, the writ petition is hereby dismissed.

(Petition dismissed.)