DHARAMPAL SINGH Vs. FOURTH ADDL DISTRICT JUDGE MEERUT

JUDGEMENT

(1.) This petition by a tenant is directed against an order passed by the learned IV Additional District Judge, Meerut dated November 29, 1978 allowing the appeal filed by the landlady (respondent No. 2) and directing the eviction of the petitioner from a residential accommodation under Section 21 (1) (a) of U. P. Act No. XIII of 1972. The petition arises in these circumstances. The respondent No 2 is admittedly the owner and landlady of a ground floor accommodation situate in the city of Meerut of which the petitioner is the tenant. The said landlady filed an application under Section 21 (1) (a) of the aforesaid Act claiming the eviction of the petitioner on the ground that she was residing with her husband and the members of her family with considerable difficulty in a portion of the ground floor of house No. 172. She bonafide required the accommodation in dispute for the residence of herself and the members of her family. It was asserted that the tenant had a small family and he did not require such a big accommodation. It was further alleged that the hardship likely to be suffered by the landlady by the rejection of the application would be much greater than may be suffered by the tenant in the event of the application being allowed. The above application was resisted by the tenant on the allegation that the landlady already had sufficient accommodation available with her and that she did not bonafide require the accommodation in dispute. The Prescribed Authority rejected the application of the landlady holding that her need was not genuine and that in any case, the tenant would suffer greater hardship than the landlady. On appeal by the landlady, the learned District Judge disagreed with the Prescribed Authority and hold that the landlady bomtfide required the accommo dation in dispute, having regard to the number of members of her family, their requirements and the accommodation available with them. The appellate Court then considered the issue of relative hardship and held that the hardship of the tenant, if any, could be overcome by the landlady surrendering the first floor accommodation in the same building which had been vacated by the landlady's previous tenant, Beni Ram, and was in her occupation. On these findings, the appeal of the landlady was allowed and the accommodation in dispute was directed to be released in favour of the landlady provided she surrenders the first floor accommodation of the house bearing No. 19 which was vacated by Beni Ram. After the above order was passed, the landlady moved an application dated 16-12-1978 before the appellate court signifying her assent to surrender the portion in favour of the petitioner vacated by Beni Ram and praying that direction be issued for the eviction of the petitioner from the accommodation in dispute. An objection was filed against this application by the petitioner, who asserted that the landlady had not signified her assent with regard to the surrender of the portion, vacated by Beni Ram, and further that the landlady had demolished some portions and made certain alterations in the accommoda tion vacated by Beni Ram and that, therefore, the appeal of the landlady was liable to be dismissed in terms of the order passed by the learned District Judge disposing of the appeal. This application of the landlady was disposed of by the learned District Judge by an order dated 23-12-1978 (vide Annexure-1 to ths rejoinder-affidavit of the petitioner filed in this Court), by saying that the dispute raised by the parties could not be legally decided by the appellate Court at that stage, presumably on the view that the controversy sought to be raised could properly be decided only in execution preceedings. Thereafter, the petitioner filed the present petition in this Court for quashing the order dated November 29, 1978 (Annexure-15 to the writ petition) as well as for a writ of mandamus directing the respondents not to interfere with the petitioner's possession over the accommodation in dispute. Counsel for the petitioner first submitted that the landlady's application for the release of the accommodation bearing No. 21 was incompetent in law and that consequently, the learned District Judge had no jurisdiction to direct the petitioner's eviction from the said accommodation. The submission was, relying on the averments made in paragraph 5 of the application under Section 21 (Annexure-11 to the writ petition), that, inasmuch as, the landlady herself was not treating the petitioner as the tenant of the'baithak (bearing No. 21), she could not seek eviction of petitioner from that Baithak under Section 21. There are no merits in this argument. In the first place, this ground was not urged before either of the two Courts below. Secondly, while it is true that according to the landlady, the petitioner had illegally trespassed over the 'baithak' even though the same was not part of the accommodation allotted to the petitioner, so far as the petitioner himself was concerned, he was assert ing right that the 'baithak' was part of the accommodation allotted to him and he was a tenant thereof. Indeed, in assertion of this claim, the landlady had filed a suit for the ejectment of the tenant from the 'baithak' but that suit failed. It appears that it is for this reason that no dispute was raised before the Courts below as regards the fact that the petitioner was the tenant of the 'baithak' also. Both the Courts below have proceeded on the assumption that the petitioner was the tenant of the 'baithak' also. The application of the landlady under Section 21 was for the entire accommodation on the ground floor, including ihe 'baithak'. The learned District Judge was, therefore, competent to allow the application of the landlady for the accommodation bearing No. 21, also accepting the own case of the petitioner that he was a tenant of that accommodation as well. It was next urged in support of the petition that the lower appellate Court had no jurisdiction, while dealing with an application under Section 21, to make a direction which amounts to allotment of accommodation No. 19 on the first floor of the building in question in favour of the petitioner. Counsel submitted that the learned District Judge could either allow the application or dismiss it only in regard to the accommodation forming the subject matter of the application under Section 21. He could not, it was argued, pass any order in regard to an accommodation which was not the subject matter of the said application. The argument is misconceived. The learned District Judge first recorded a finding to the effect that the landlady's need for the accommoda tion in dispute was bonafide and pressing. He then observed that there was no material available on the record to show that the tenant had no other accommodation available to him. It was thereafter, that the learned District Judge proceeded to consider the availability of the acccommodation on the first floor of the building bearing No. 19 and he came to the conclusion that if this accommodation on the first floor was made available to the tenant, he would suffer no hardship at all. If the landlady was willing to part with certain accommodation in her occupation in favour of the tenant in considera tion of the latter vacating the accommodation in dispute. I see no legal impediment in the way of the learned District Judge making that offer of the landlady a part of his order with a view to making that offer binding and enforceable at law even in proceedings under Section 21 U. P. Act No 13 of 1972. Under rule 16 (1) (f) the Prescribed Authority is empowered and enjoined to take into consideration alternative accommodation offered by the landlord to the tenant of that legislative intent. I find no illegality in the authority or the Court making the order of release conditional upon that offer being effected. Furthermore, the condition making the order of release conditional upon the landlady's surrendering accommodation No. 19 in favour of the petitioner is entirely in favour of and advantageous to the tenant, and is, besides, clearly severable from the remaining part of the order directing the release of the accommodation in favour of the landlady. Under these circumstances, the tenant ought not be held entitled to complain against that part of the order by which the landlady has been directed to surrender accommodation no. 19. I, therefore, find no substance in the second point urged by counsel for the petitioner, in any view of the matter. Learned counsel for the petitioner lastly submitted that inasmuch as the landlady had not complied with the condition incorporated in the order dated 29th November, 1978 disposing of her appeal she was not entitled to have the petitioner evicted from the accommodation in dispute. Counsel invited my attention to the various averments made in the writ petition and the Annexures thereof in which it has been claimed that subsequent to the passing of the impugned order, the landlady caused certain alterations and demolitions to be made in accommodation No. 19, resulting in the diminution of accommodation No. 19 and that being so, it was asserted, the landlady forfeited her right to ask for the eviction of the tenant. Counsel for the respondent invited my attention to the averments made on behalf of the landlady in the Courts below as well as in this Court denying the above allegations of the tenant. Whether the land lady offered to surrender the accommodation which was vacated by Beni Ram or whether the landlady had tampered with the said accommodation reducing the extent of the accommodation vacated by Beni Rain is a highly disputed question of fact which it is not possible for this Court to decide on the material brought on the record of this petition. A similar controversy of fact was sought to be raised before the learned District Judge also. But he declined to resolve that controversy on the narrow ground that he was not competent to decide that dispute presumably on the ground that he had become functus officio and that the dispute could be decided at the stage of execution of the order passed by him The view taken by the learned District judge that he was not competent to decide the controversy raised by the parties he having parted with the appeal appears to be correct. The appellate Court has been invested with no such powers under the Statute. The dispute sought to be raised by the petitioner could, however, be properly adjudicated by the authority which is charged with the duty of enforcing orders passed under Section 21. That authority, in my view, is and must be held entitled to go into the question whether the offer made by the landlady by her application dated 16-12-1978 was in regard to the very accommodation which was left by the previous tenant Beni Ram. It is clear that if the offer of surrender was in conformity with the order passed by the Learned District Judge on 29-11-1978, the landlady would be entitled to get possession over the accommodation in dispute. If, however, it is found that the landlady did not make that offer, that is, the accommodation offered by the landlady was not the same, in truth and substance, as that occupiedby Beni Pam, then obviously the appeal of the landlady would be deeruded to have been dismissed in terms of the order passed by the learned District Judge disposing of the appeal. In any case, as mentioned above, this contro versy cannot appropriately be decided in this petition. The said controversy is left open to be determined by the authority competent to do so. In the end, the petitioner's counsel also made an attempt to challenge the finding of the learned District Judge on the question whether the landlady bonafide requires the accommodation in dispute. Whether the landlady bonafide requires the accommodation in dispute is essentially a question of fact. It has been determined by the learned District Judge on relevant and proper considerations. On the facts found by the learned District Judge, his conclu sion that the landlady bonafide requires the accommodation in dispute appears to be entirely unexceptionable. Learned Counsel was unable to point out any error of law in that finding. Nor was he able to demonstrate that the finding recorded by the learned District Judge was otherwise unsustainable by the evidence on the record. The finding of the learned District Judge on this question, calls for no interference. It is affirmed. The above discussion disposes of all the points urged by counsel for che petitioner. In the result, subject to the observations made above, this petition fails and is dismissed. There will be no orders as to costs. .