Tribhuwan Singh and Others vs Ist Additional District Judge and Others

Rakesh Tiwari, J.—Heard counsel for the parties and perused the record.

This writ petition has been filed challenging the validity and correctness of the Judgment and order dated 25;4.1995 passed by respondent No. 1, 1st Additional District Judge, Jaunpur whereby he dismissed the appeal and confirmed the judgment and order dated 5.11.1986 passed by the Prescribed Authority, Jaunpur allowing an application u/s 21(1)(a) of U.P. Act No. 13 of 1972 partly.

The father of contesting respondent Nos. 4 to 7 and husband of respondent No. 3 late Ram Chandra filed an application u/s 21 of U.P. Act No. 13 of 1972 for release of the residential accommodation as well as commercial accommodation which was under the tenancy of the petitioners. The main ground of release was that the contesting respondents belonging to a business firm ''Beni Ram Devi Prasad'' and after partition of family the other brothers have got drawing room and guest room. They also require drawing room and guest room and some accommodation for their children and the business accommodation occupied by the tenants is required to settle their sons.

The petitioners filed their reply to the application moved u/s 21 of U.P. Act No. 13 of 1972 inter alia, that the landlords had no need for the tenanted accommodation of the petitioners; they have sufficient accommodation with them for their family members and that their sons being minors are not in position to carry on the business; that the petitioners have got several other accommodations which they can have for business and residence. It was also averred that the petitioners have let out a shop to Kasim after getting ejectment decree against him, which also proves that the landlords did not have any requirement of additional accommodation.

The Prescribed Authority vide order dated 5.11.1988 partly allowed the release application of the respondents for residential accommodation directing the tenants to vacate the 1st and IInd floors of the house in dispute in favour of the respondents landlord. The application of the landlords for release of commercial accommodation on the ground floor was dismissed holding that the application in this regard u/s 21 (a) of U.P. Act No. 13 of 1972 was not maintainable. The operative portion of the order dated 5.11.88 is as under:

vr% nksuks i{kksa ds }kjk izLrqr lEiw.kZ lk{;ks dk voyksdu djus ds i''pkr mijksDr fu"d"kZ ,oa uthjksa ds vk/kkj ij eSa bl fu"d"kZ ij igqaprk gwa fd izkFkhZx.k dh vko;''drk fookfnr Hkou ds izFke ry vkSj f}rh; ry ds lEcU/k esa okLrfod vkSj ln~Hkkfod gS vkSj fookfnr Hkou dk ;g Hkkx [kkyh djus ds dkj.k foi{khx.k dks fdlh fdLe dh gkMZf''ki dk lkeuk ugha djuk iM+sxk] D;ksfd fookfnr Hkou ds bl Hkkx ds vfrfjDr foi{khx.k ds dCts esa fookfnr Hkou dk Hkwry Hkh gS vkSj mlds vfrfjDr foi{khx.k ds dCts esa ,d vkSj edku eqgYyk u[kkl esa gS ftldh ekyfdu Jherh vkfo;k csxe gS A blds foijhr mijksDr fu"d"kZ ds vk/kkj ij ;g fl) gS fd izkFkhZx.k ds dCts o fjgkb''k esa tks Hkou gS A og muds fjgk;''k dh vko;''drk ls cgqr de gS A vr% fookfnr Hkou ds mijksDr izFke vkSj f}rh; ry dk Hkkx [kkyh u gksus ds dkj.k izkFkhZx.k dks vius ifjokj dh fjgkb''k gsrq vko;''drk dks iwjk dj ikuk laHko ugha izrhr gksrk gS vr% esjh jk; esa mijksDr edku foi{khx.k }kjk [kkyh u djus ds dkj.k izkFkhZx.k dks vf/kd gkMZf''ki dk lkeuk djuk iM+sxk A vr% mijksDr fu"d"kksZ ds vk/kkj ij eSa bl fu"d"kZ ij igqWaprk gWwa fd fookfnr Hkou ds izFke ry o f}rh; ry ds lEcU/k esa izkFkhZx.k dh vko;''drk mfpr vkSj ln~Hkkfod gS vkSj bls foi{khx.k }kjk [kkyh u djus ls izkFkhZx.k dks vf/kd d"V vkSj gkMZf''ki gksxh tc rd foi{khx.k }kjk bls [kkyh djus ls mUgs dksbZ gkMZf''ki ugh gksxh vkSj ;fn dksbZ gkMZf''ki foi{khx.k dks gks Hkh rks blds vk/kkj ij izkFkhZx.k dh ln~Hkkfod vko;''drk dks udkjk ugh tk ldrk gS A

vr% mijksDr fu"d"kksZ ds vk/kkj ij eSa bl fu"d"kZ ij igqWaprk gwWa fd izkFkhZx.k dh ln~Hkkfod vko;''drk fookfnr Hkou ds izFke ry vkSj f}rh; ry ls iwjh gks ldrh gS A vr% esjh jk; esa fookfnr Hkou ds Hkwry esa foi{khx.k dks csn[ky fd;k tkuk mfpr ugha izrhr gksrk gS A vr% mijksDr ifjfLFkr;ksa es esjh jk; esa izkFkZuk i= 4 x vkaf''kd :i ls Lohdkj fd;s tkus ;ksX; gS A

vkns''k

izkFkZuk i= 4 x vkaf''kd :i ls Lohdkj fd;k tkrk gS vkSj foi{khx.k dks ;g vknsf''kr fd;k tkrk gS fd os fookfnr Hkou dk izFke ry o f}rh; ry tks uD''kk dfe''uj 83 x esa izFke ry vks0 ih0&1 vkSj f}rh; ry vks0 ih0&2 ls iznf''kZr fd;k x;k gS ,d ekg ds vUnj [kkyh djds ml ij izkFkhZx.k dks dCtk ns nsa A ;fn os ,slk djus esa foQy jgrs gSa rks U;k;ky; }kjk mUgs mijksDr Hkou ls csn[ky djds ml ij izkFkhZx.k dCtk fnyk tkosxk A

fookfnr Hkou ds Hkwry ds lEcU/k esa izkFkhZx.k dh izkFkZuk fujLr dh tkrh gSA

bl okn dh ifjfLFkfr;ksa esa i{kdkj viuk&viuk [kpkZ Loa; ogu djsaxs A

�,0 ,p0 [kku� eqflQ tkSuiqj 5-11-1988

Aggrieved by the aforesaid order dated 5.11.88 of the prescribed authority the petitioners as well as the respondents filed Appeal No. 9 of 1988, Tribhuwan Singh and Ors. v. Smt. Janki Devi and Ors. and Appeal No. 10 of 1988, Smt. Janki Devi and Ors. v. Tribhuwan Singh and Ors. respectively before the appellate court which were dismissed vide order dated 25.4.1995 confirming the order of the Prescribed Authority dated 5.11.1988 which is as under:

vr% esjh jk; esa nksuksa gh vihyks esa bl Lrj ij dksbZ cy ugh gS vkSj os fujLr fd;s tkus ;ksX; gS A fdjk;snkjku ls ;g vis{kk vo''; dh tkuh pkfg, fd og lky&nks lky ds vUrjky esa vius dkjksckj ds fy, oSdfYid vkokl wa ysa A

vkns''k

fu;r izkf/kdkjh vihy la[;k 9@88 vkSj fu;r izkf/kdkjh vihy la[;k 10@88 nksuks gh fujLr dh tkrh gS vkSj fo}ku fu;r izkf/kdkjh dk fu.kZ; fnukafdr 5-11-88 ,rr}kjk iqf"V fd;k tkrk gS A fdjk;snkjku bl vkns''k ds ,d ekg ds vUnj fookfnr vkokl ds izFke o f}rh; ry dks [kkyh djds edku ekfydku dks dCtk djus nsxs vkSj fdjk;snkjku ls ;g Hkh vis{kk dh tkrh gS fd lky&nks lky ds vUnj Hkwry dk fgLlk Hkh] oSdfYid vkokl dh O;oLFkk djds [kkyh dj nsxs A i{kdkj viuk&viuk O;; Loa; ogu djsxs A bl fu.kZ; dh ,d izfr vihy la[;k 10@88 dh i=koyh esa j[kh tk;s A

fnukad % 25-4-95 g0 vLi"V �jke fd''kksj� 25-4-95 izFke vij ftyk tt] tkSuiqj A

This writ petition has been filed by the petitioners challenging the validity and correctness of the orders dated 5.11.1988 and 25.4.1995 passed by the Prescribed Authority as well as the appellate authority on the grounds that the courts below have not considered and recorded any findings regarding the conduct of the contesting respondents who have let out the shop to one Kasim during the pendency of release application and the findings of the courts below are against the record that the petitioners have an alternative accommodation.

At the time of admission the following ad interim order was passed:

Heard Sri R.R. Singh, for the petitioners. A caveat has been filed in this case by Sri M.C. Tiwari and he has received a notice of this writ petition on 29th May, 1995.

This writ petition was filed in Court No. 40 and during vacation some cases of that Court have been sent to this Court. Ordinarily this case would be taken up on 30th May, 1995 but all the cases received from Court No. 40 were ordered to be taken up on 31st May, 1995, Sri R. R. Singh stated that yesterday (30.5.1995) Sri M. C. Tiwari was present and he is aware that all the cases received from Court No. 40 will be taken up on 31st May, 1995 and yet he is absent. The case was taken up after lunch and Sri M.C. Tiwari has hot appeared so far.

It is therefore, ordered that the ejectment of the petitioners will remain stayed till 15th July, 1995.

This case may be listed on 11th July, 1995, before appropriate Bench.

It was extended by order dated 12.7.1995 till 31.8.1995 and by order dated 21.8.1995 up to 11th September, 1995. It appears from the order-sheet that the interim order has not been extended thereafter.

The counsel for the petitioners submits that during the pendency of the writ petition the contesting respondents have let out two shops, one to Sri Neeraj Kumar Singh on 28.9.1998 and another to Rashid alias Rajesh; and that not only this the petitioners have sold out one portion of House Nos. 215/5 and 215/6 in favour of one Lalji Seth which is part of house in dispute and they have brought this fact through supplementary rejoinder-affidavit filed before this Court in the present writ petition.

He also submits that the petitioners have filed SLP before the Hon''ble Supreme Court against the order of enhancement passed by this Court in which the operation of the order enhancing the rent of the disputed accommodation was stayed; and that the landlord Ram Chander died during the pendency of suit and the present respondents had not filed any application showing their need as contemplated u/s 21(7) of the U.P. Act No. 13 of 1972 which was not considered by the Prescribed Authority as well as the appellate authority.

He next submits that from the facts narrated above it is clear that the contesting respondents have got no bona fide need regarding residential or commercial accommodation and the findings recorded by the courts below are perverse. illegal and arbitrary in the circumstances, the writ petition is liable to be dismissed.

In support of above submissions, the counsel for the petitioners has relied upon the case of Gulabbai Vs. Nalin Narsi Vohra and others,

Since the matter of enhancement of rent under the interim directions of this Court is pending before the Hon''ble Apex Court in SLP (Civil) No. Nil of 2007, which has not been decided in this writ petition.

Admittedly, the courts below have given concurrent findings of facts that the need of the landlords cannot be fulfilled by release of the first and second floors of the tenanted accommodation under the tenancy of the petitioners and that the landlords do not require any further accommodation as such the commercial accommodation under the tenancy of the petitioners has not been found to meet the need of the landlords.

Admittedly also the application filed by the landlords was two folds-one for residential purpose and another for commercial purpose regarding which the courts below decided the release application u/s 21(1)(a) filed by the landlords in their favour by releasing the first and second floors of the tenanted accommodation. However, as the need of the accommodation which was being used for commercial purposes by the tenants has been declined. From the record it is apparent that the landlords have got many shops and if they want to use the same for commercial purposes they could have used those shops for commercial purposes. Not only this, the landlords have after getting the commercial accommodation released from the erstwhile tenant have again let them out for enhancement of rent which also shows that the need of the landlords for commercial purpose under the tenancy of the tenant was not genuine and bona fide.

Note may also be made that the landlords have not appeared after the case was taken up in the third revised list, i.e., for the third time in the day as it appears from the order dated 17.7.2007. For this reason also as there is no one to press the case of the landlords taken in the counter-affidavit and there is no denial of the supplementary rejoinder-affidavit filed by the tenants bringing out the fact that the respondent Udai Pratap has let out one shop to Neeraj Kumar Singh son of Sri Tribhuwan Singh on 28.9.1998 and had executed an agreement in this regard on the same day which has brought on record by S.R.A. Annexure-1 as well as further let out two more shops to Rashid alias Rajesh son of Rasid resident of Nakhash, District Jaunpur and have also sold out one portion of House Nos. 215/5 and 215/6 in favour of landlord Lalji Seth son of Vishwa Nath Seth through registered sale-deed dated 21.12.2004 copy of which has been brought on record by appending Annexure S.R.A.-II. It seems that the respondents do not require any commercial accommodation for their bona fide and genuine need and pleadings in this regard taken by them in the background do not support their case.

For the reasons stated above, since there are concurrent findings of facts by the courts below no interference is required by this Court under Article 226 of the Constitution. The petitioners may remain in possession of the commercial accommodation and will hand over peaceful and vacant possession on the first and second floors of the tenanted accommodation as directed by the courts below to the landlords within a period of one month from the date of production of a certified copy of this order.

The petition is accordingly dismissed. No order as to costs.