Haji Abdul Razzaque @ Haji Munshi vs IVth A.D.J.& Ors.

O. P. Srivastava, J.—This writ petition is directed against the judgment and order dated May, 28 of 1986, whereby learned IVth Addl. District Judge, Varanasi allowed the appeal, dismissing the application for release of the premises in tenancy of respondent No. 2.

Brief facts relevant for disposal of this writ petition may be stated as follows;

Petitioner Haji Abdul Razzaque alias Haji Munshi, alleging himself to be landlord of the premises No. 159B, situate in Sadar Bazar, Varanasi, had made application under Section 21 (i) (a) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as �Act�) for release of accommodation in the tenancy of the respondent on the ground that said accommodation was needed for his son, Abdul Mannan, who was practicing as lawyer and had family consisting of three daughters, son and wife. Daughter and soninlaw were also alleged to be living with Abdul Mannan. The application was contested by the respondent on the ground that it was not genuine and also on the comparative hardship. The learned Prescribed Authority upon consideration of the material before him, directed the release of the premises with the direction regarding payment of some compensation. However, on appeal preferred by the tenant respondent the learned Appellate Court, on the ground of bona fide need and comparative hardship, found case in favour of tenantrespondent and held that since the petitionerlandlord was only one of the two landlords, the application by him alone was not maintainable. It has further been held by the learned Appellate Court that the premises sought to be released was being admittedly used for business purpose and, therefore, same could not be got released consequently, appeal was allowed.

I have heard the learned Counsel for the parties and have gone through the judgment of learned Appellate Court.

As regards the observation of learned Appellate Court that application by one of the coowner alone for release was not maintainable as per Rule 15 (2) framed under the Act, there is judgment of Full Bench of this Court given in Gopal Dass and another v. 1st Additional District Judge, Varanasi and others, 1987(13) ALR 275, wherein, it has been held that even one coowner is competent to sign such application, it has further been held that requirement of Rule 15 (2) that an application for release of premises should be signed by all owners is invalid for the reason that even one landlord can be considered as landlord within the meaning of Section 3 (j) of the Act. Thus, in view of the definition of the landlord given under the Act, Rule 15 (2) framed under the Act, being subordinate legislation has been held to be invalid. Thus, the finding of the learned Appellate Court that application itself was not maintainable having been signed only by one landlord is not sustainable.

Coming to the question of bona fide need and comparative hardship, I find from the judgment that 34 storey house purchased by respondent about eight years before taking of premises on tenancy at the time of sale was in occupation of the tenantrespondent but the same was got released as mentioned at page 2 of the judgment. The learned Appellate Court has totally ignored to consider this aspect specially in view of the explanation to Section 21 of the Act. Besides this, although, the learned Appellate Court had taken into account the fact mentioned in paper 47 Ka that landlord had 20 other houses but has not made any observation as to their availability i.e., whether they are in occupation of some one as tenants etc. to are vacant or it is in condition that it can be occupied. Without considering above factor, as regards the other building belonging to the landlord and tenant, the learned Appellate Court observed that landlord''s need was not bona fide and that there was no hardship, is not tenable. As per judgment of learned Appellate Court itself six rooms are in the house in which Abdul Mannan, is residing and is practicing as lawyer and for whom the premises in tenancy of the respondent is needed. Out of these six rooms, two rooms are in occupation of ''Balbedi Kendra''. Thus, only four rooms, are in possession of Abdul Mannan. Learned Appellate Court in the light of judgment in 1984, L.R.J. pages 574575 has observed that a practicing advocate needs at least three rooms. Thus, out of four rooms, Abdul Mannan needs three rooms for his office purpose. Abdul Mannan''s family consisted of one son, three daughters and wife besides the married daughter and soninlaw of the landlord whose need cannot be considered for the purpose of release.

Learned Counsel for the petitioner has rightly argued that the premises in occupation for business purpose can be got released for residential purpose in view of the proviso to Section 21 of the Act. I agree to this submission and the observation of learned Appellate Court otherwise is wrong.

Thus, in view of what has been mentioned hereinabove, it is apparent that learned Appellate Court had given judgment without properly examining the material on record. Since, original record is not available, therefore, there is no option except to remand the case.

The petition is, therefore, allowed. The judgment and order of learned Appellate Court dated May 28, 1986 is hereby set aside. The matter is sent back to learned Appellate Court with the direction that he shall decide the appeal afresh. In the light of the observations made in the body of the judgment within two months, after affording opportunity to the parties'' Counsel to make their submission, from the date a certified copy of this judgment is produced.

Let a copy of this judgment be sent to the District Judge, Varanasi within 48 hours and also be supplied to the parties'' Counsel in case they apply for same and pay the requisite charges.