BAL KISHAN Vs. IVTH A D J ETAWAH

JUDGEMENT

(1.) THIS writ petition has been filed by tenant which arises out of release proceedings under Section 21 of U.P. Act No. 13 of 1972. Release application filed by landlady/respondent No. 3 numbered as P.A. Case No. 31 of 1988 was allowed by IVth Additional C.J.M./ Prescribed Authority, Etawah through judgment and order dated 27.5.1993, Annexure -1 to the writ petition. Tenant/petitioner's appeal being P.A. Appeal No. 17 of 1993 was dismissed by IVth Additional District Judge, Etawah through judgment and order dated 2.5.1996. Landlady pleaded that she purchased the house in dispute on 13.5.1985 from its previous landlord, that petitioner was tenant in the house in dispute since before its purchase, that the tenant illegally started using one room of the house in dispute for business purpose. It was further pleaded by the landlady that she along with her family resided in a tenanted house belonging to a trust. Tenant petitioner pleaded that the house in which landlady was residing belongs to the trust of which husband of the landlady was sarvarakar and he had a right to reside in the house in dispute. The tenant further pleaded that he was using one room in the house in dispute for business purposes for a very long time with the consent of the pervious landlady. The tenant/ petitioner stated in one of his affidavit that husband of the landlady had got a plot of land in the same city where he had constructed some building but had left the same incomplete in order to take advantage in the instant case. There was some dispute with regard to the locality in which the said property is situated. In some affidavits filed by the tenant and by his witnesses it was mentioned that the property of landlady or her husband was situate in Ambedkar Nagar. However, the fact is that there is immovable property belonging to the husband of the landlady situate in mohalla Lohiya Nagar. Advocate Commissioner appointed by the Court inspected the property and found that it contained boundary wall, gate and a room without roof and doors. The Commissioner further reported that in the said property there was no toilet or bathroom or facility of water. The report of the Commissioner is Paper No. 41Ga.

(2.) BOTH the courts below found the need of the landlady bona fide. Finding of comparative hardship was also recorded in favour of the landlady.

(3.) AS far as house belonging to the trust in which landlady is residing is concerned, it cannot negative the bona fide need of the landlady to reside in her own house purchased by her. Even a sarvarakar cannot claim unfettered right of residence in the trust property. The said right depends upon the will of the trustees, hence the mere fact that landlady along with her husband and: other family members resided in the trust house could not be a ground to reject the claim of the landlady that she bona -fidely required the house in dispute which she purchased for her residence. As far as the property of Lohiya Nagar is concerned, the Commissioner found the same to be not in -habitable, hence the same cannot be considered to be alternative accommodation available to the landlady.