Bhagirath vs Smt. Gayatri Devi and Others

A.K. Yog, J.—Heard Sri Yatindra Sinha, advocate on behalf of the tenant-Petitioner and Sri Pankaj Naqvi, advocate on behalf of the landlord-Respondent Nos. 1, 2 and 5 (being the widow and sons of original deceased-landlord Jagdish Saran Agarwal). The parties have already exchanged rejoinder and counter-affidavits. Consequently, this writ petition is being heard and decided finally at the admission stage.

The accommodation in question is admittedly governed by provisions of Section 21 of the U.P. Act No. XIII of 1971! (called the ''Act''). The accommodation in question is the first floor of 12, Zulfiqarganj (Shyamganj), Bareilly, of which, admittedly, the Petitioner was tenant. The ground floor accommodation was in the tenancy of one Satya Prakash.

Jagdish Saran Agarwal, landlord, who was employed in the Excise Department, U.P. Government, filed an application, initially both under Sections 21(1)(a) and 21(1A) of the Act. The landlord claimed that his need was bona fide. He was to suffer more hardship than the tenant if his release application was rejected. The landlord further claimed eviction of the tenant on the ground that he retired from Government service on June 30, 1984 and had to live at Bareilly in a tenanted accommodation, hence the case was covered under the aforesaid Section 21(1-A) of the Act. The release application filed by the landlord was registered as P.A. Case No. 107 of 1984. It appears that the landlord also filed an application for release against another tenant on the ground floor of the accommodation of the premises and it was registered as P.A. Case No. 108 of 1984.

The Petitioner has filed a copy of judgment and order dated 10.4.1988 passed by the VIth Additional District Judge, Bareilly (Annexure-XII to the petition), which shows that the release application against Satya Prakash was allowed. Rent Control Appeal No. 27 of 1988 filed by the tenant (Satya Prakash) was allowed by means of the aforementioned judgment and order dated April 10, 1998. Sri Pankaj Naqvi, advocate, learned Counsel for the contesting Respondent informs that a writ petition was filed by the landlord in this Court and the same is pending disposal and the facts of the case culminating in the present proceedings are also it might have been stated that the prescribed authority allowed the release application (P.A. Case No. 107 of 1984) vide judgment and order dated February 2, 1993 (Annexure-VI to the petition). The prescribed authority decided the case in favour of the landlord both u/s 21(1)(a) and Section 21(1A) of the Act. The tenant being aggrieved filed Rent Control Appeal No. 31 of 1993 a copy of the memorandum of appeal is Annexure-VII to the petition. During the pendency of the appeal, Jagdish Saran Agarwal, landlord died and his legal representatives were substituted. The tenant also incorporated para 11A in the memorandum of appeal contending that sons and daughter of the deceased Jagdish Saran Agarwal (landlord) had no need of the accommodation in question as they were already living in their own built houses. The memorandum of appeal clearly indicates that the main thrust of appeal is to the effect that the case of landlord, in the fact of the instant case, did not fall u/s 21(1A) of the Act because of the landlord possessed another accommodation. The tenant, does not assail finding of the appellate court regarding ancestral property of the landlord.

Commissioner''s report paper No. 61Ga (Annexure-VIII to the petition), shows that the said Commissioner Report contains description of (House No. 291, Mohalla Gangapur, Bareilly). The said Advocate Commissioner vide report dated January 10, 1986 (with reference to Application No. 40B of para 5 (III) the Advocate Commissioner) found that the house built of old, bricks had fallen, roof and terrace were supported on beams, floor was kachcha, no plaster was there on the walls and in the sketch map at place C of the room ''A'' there is a door. The Commissioner concluded that the house was old one and in dilapidated condition.

Another Commissioner Report was obtained on 24.7.1987 (Annexure-IX to the petition). The said report indicates that the Petitioner''s counsel showed unwillingness the map prepared in respect to the accommodation in Mohalla Gangapur (Annexure-5 to the writ paper book). During pendency of the appeal, a Commissioner was again appointed and he submitted report dated 23.10.2000 (Annexure-Xl to the petition). The Commissioner submitted report regarding the houses which were in possession of two sons of the landlord, namely, Uttam Prakash and Rakesh Kumar, who were living with their own families separately and recorded that the information was gathered from Smt. Manju Agarwal wife of Uttam Prakash and Smt. Niru Agarwal wife of Rakesh Kumar Agarwal (daughter-in-laws of the landlord). This Commissioner report indicates that two houses at Patel Nagar were in possession of the two sons of the landlord who had their own families and were living separately. In respect of the other accommodation, situate at Mohalla Madhowadi, Nai Basti (Annexure-XI to the petition), the Advocate Commissioner found that Smt. Gayatri Devi wife of Late Jagdish Saran Agarwal (landlord) was found in possession.

During pendency of the appeal, the deceased-landlord restricted his release application u/s 21(1A) of the Act. Learned appellate court found that Smt. Gayatri Devi wife of Jagdish Saran Agarwal had purchased open piece of land (140 Sq. Yad.) from Hulasi and Gauri Shankar vide sale deed dated 6.3.1960 and July 24, 1961 regarding Madhowadi accommodation (282 Sq. Yd.). It is observed that after constructing the house thereon, Uttam Kumar Agarwal and Rakesh Kumar (sons of deceased -landlord-Respondent Nos. 2 and 3 in the writ petition) were in possession. It was also held that the other two sons, Sushil Kumar and Manoj Kumar, Respondent Nos. 4 and 5, were living in another house along with their mother, Smt. Gayatri Devi built in recent past. Lower appellate court observed that there was no difference in the circumstances of the case, which at the time of filing of prevailed while the appeal was pending.

The lower appellate court considered contention of both the sides and dismissed the appeal holding that the provision of Section 21(1) has been squarely applied to the fact of the case.

The learned Counsel for the Petitioner seeks to challenge the judgment and order of lower appellate court on the following grounds: accommodation in question was used for commercial purposes whereas the release of the said accommodation were sought by the landlord fur his personal residential need.

Finding recorded by court below show that the building in question was meant to be used as residential and it was not built as commercial building and hence it cannot be said to be commercial building. Even otherwise, the court below dealt with this respect and held that the release application of the landlord was maintainable.

The next submission of the learned Counsel for the Petitioner is that the landlord was in possession of one room (10 x 10 feet) on the ground floor of the premises whereas accommodation in question exists on second floor. According to the tenant, apart from one room there was latrine and common courtyard. The landlord, however, denied existence of latrine and courtyard. According to the tenant the ancestral house at Gangapur was also available.

The question whether one room accommodation on the ground floor in the premises in question and the other in the ancestral property actually existed and/or were adequate and suitable, is a question of fact.

The court below had considered the evidence and came to the conclusion that these premises could not be said to be alternative of suitable/adequate accommodation for the landlord. The court below came to the conclusion that they were in possession of about sons of landlord-who had their families and living therein.

Learned Counsel for the Petitioner submitted that the landlords had sufficient accommodation with them and hence provisions of Section 21(1)(a) of the Act were not applicable to the fact of the instant case.

The Petitioner, as mentioned above, also referred to the P.A. Case No. 108 of 1994 Jagdish Saran v. Satya Prakash. The judgment passed in the aforesaid case in appeal is under challenge in writ petition before this Court. It has no relevance for deciding the case. So far as ancestral property at Mohalla Madhobari are concerned, two courts below have recorded concurrent findings of fact and it is not open for this Court, in exercise of jurisdiction under Article 226, Constitution of India, to reappraise evidence and interfere with the judgments of the courts below.

Moreover, I do not find any error apparent on the face of record and come to a conclusion and recorded own finding.

Learned Counsel for the Petitioner, however, submitted and placed reliance on the decision in the case of Kalyan Rai Saxena v. IInd Additional District Judge, Bulandshahr and Ors. 1982 ARC 363. Para 13 of the said judgment reads:

In our opinion Section 21(1A) was enacted for providing an immediate shelter to a landlord who is left without any accommodation in consequence of having to vacate upon cessation of his employment a public building. The Legislature appears to have made this provision to meet the exigency arising out of the landlord being confronted with the serious problem of finding an accommodation for his residence after being deprived of the use of public building which was allotted to him in consequence of his employment. So that the landlord might rehabilitate himself without going through the rigorous and time consuming process envisaged u/s 21(1) the Legislature thought that such a landlord might be relieved of the obligation of having to establish that (the bona fide requires the accommodation belonging to him or that as between him and his tenant, he would suffer greater hardship. It appears that in a contingency covered by Section 21(1A) the Legislature presumed that the need of the landlord would be genuine and that his requirement must necessarily take precedence over those of the tenant.

Applying the ratio, adopted by a Division Bench in Kalyan Rai Saxena''s case (supra), the courts below committed no error in finding out whether the accommodations, pointed out by the tenant in the Instant case, were actually available adequate and suitable. The mere fact that the landlord possesses same accommodation, irrespective of its condition (i.e., whether it is habitable or not, and what is its extent) is not enough to reject the release application u/s 21(1) of the Act.

The language employed in Section 21(1A) mandates that the prescribed authority shall, on the application of a landlord in that behalf, order the eviction of a tenant from any building at any time under tenancy, if it is satisfied that the landlord of such building was in occupation of a public building for residential purpose, which he had to vacate on account of the cessation of his employment.

The ratio adopted in the case of Kalyan Rai Saxena is only to the effect that Section 21(1-A) will not be available to the landlord, even if he has to vacate on account of cessation of employment if he possesses an alternative residential accommodation. In turn, it makes it clear that such alternative accommodation must be an accommodation, which may be suitable and adequate.

The right conferred u/s 21(1A) to the landlord who is suffering because of cessation of his employment contemplated in that section, is a substantive right created by statute and such a right should be enforced by the authorities under the Act as it existed on the date of deciding release application. It could not be taken away by subsequent event as otherwise the averment now to delay release proceeding so as to create situation for the landlord to make arrangement for expending need and settled grown up sons and daughters. Cessation of employment for any reason, whatsoever, does not visit an employee sufferance of his own accommodation sufferance of various accounts.

In result, I find no manifest error apparent on the face of record, the writ petition lacks merit and is, accordingly, dismissed.

Learned Counsel for the Petitioner at this stage submitted that he be allowed to vacate the premises. He states that he has instructions from his client. He submits that the Petitioner shall give undertaking before the concerned prescribed authority for peacefully vacating and handing over the vacant possession provided that he is granted six months'' time. Learned Counsel for the contesting Respondent has no objection to the same provided the Petitioner fulfils requisite conditions and gives an undertaking for compliance of the same. Consequently, I direct that the Petitioner to retain possession of the accommodation in question-subject to the strict compliance of the following:

(1) The tenant-Petitioner files before concerned prescribed authority, on or before March 15, 2001 an application along with his affidavit giving an unconditional undertaking to comply with all the conditions mentioned hereinafter;

(2) Petitioner-tenant shall not be evicted from the accommodation in his tenancy for four months, i.e., up to July 31, 2001. Tenant-Petitioner, his representative/assignee, etc. claiming through her or otherwise, if any, shall vacate without objection and peacefully deliver vacant possession of the accommodation in question on or before July 31, 2001 to the landlord or landlord''s nominee/representative (if any, appointed and intimated by the landlord) by giving prior advance notice and notifying to the landlord by Registered A.D. post (on his last known address or as may be disclosed in advance by the landlord in writing before the concerned prescribed authority) time and date on which landlord is to take possession from the tenant.

(3) Petitioner shall on or before March 15, 2001 deposit entire amount due towards rent etc. up to date, i.e., entire arrears of the past, if any, as well as the rent for the period ending on the July 31, 2001.

(4) Petitioner and everyone claiming under him undertake not to ''change or ''damage'' or transfer/alienate/assign in any manner, the accommodation in question.

(5) In case tenant-Petitioner fails to comply with any of the conditions/or direction''s contained in this order, landlord shall be entitled to evict the tenant-Petitioner forthwith from the accommodation in question by seeking police force through concerned prescribed authority.

(6) If there is violation of the undertaking of anyone or more of the conditions contained in this order, the defaulting party shall pay Rs. 25,000 (Rupees twenty five thousand only) as damages to the other party besides rendering himself liable to be prosecuted for committing grossest contempt of the court.