GOPAL DAS Vs. RAHMAT ALI AND ANOTHER

JUDGEMENT

(1.) THIS is landlord's writ petition arising out of eviction/release proceedings initiated by initial landlord Bramha Deen, since deceased and survived by Gopal Das his son, against tenant respondent No. 1. The release application was filed on the ground of bona fide need under section 21 of U.P. Act No. 13 of 1972 and was registered as Rent Case No. 86 of 1997 on the file of Prescribed Authority/second Additional J.S.C.C. Kanpur Nagar. The Prescribed Authority through judgment and order dated 6.12.2001 allowed the release application. Against the said judgment tenant respondent No. 1 filed Rent Appeal No. 5 of 2002. XVth A.D.J. Kanpur Nagar through judgment and order dated 1.2.2003 allowed the appeal and set aside the judgment and order passed by the Prescribed Authority, hence this writ petition. Heard learned Counsel for the landlord petitioner. Inspite of sufficient service through publication no one has appeared for tenant -respondent No. 1.

(2.) PROPERTY in dispute is a house containing one room and one Varandah. When the release application was filed, family of the landlord consisted of himself, his wife, three sons out of whom two were married and one of them was having a child and three daughters out of whom one was married. Accommodation in possession of the landlord consisted of two rooms on the ground floor of about 10 feet x 12 feet and one small room of 8' x 8' which according to the landlord was being used as Pooja room. On the first floor landlord had got a big room of 10 feet x 18 feet and a store room of about 7 feet x 10 feet and kitchen of about 9 feet x 10 feet. Lower Appellate Court held that small room on the ground floor, which was described by landlord as Mandir was actually a Pooja Room or Poojaghar, which is normally used for Pooja purposes as well as for other purposes. Lower Appellate Court held the accommodation available to the landlord as quite sufficient for him. The view of the lower Appellate Court is erroneous in law. Landlord required at least 3 rooms for his sons as two of them were married. One room was required for landlord and his wife. At the time of filing of the release application two of his daughters were unmarried hence one room was required for them. During pendency of proceedings landlord died and his unmarried daughters were also married. Firstly, need is to be seen as on the date of filing of the release application. Secondly, if subsequent change in the family is to be taken note of then it would also have to be considered that during 8 years which expired since filing of the release application, grand son of the landlord must have become 9 years of age and there may be some more grand sons born. In any case, even for the family of the landlord after excluding landlord and all his daughters, accommodation available to him cannot be said to be sufficient. Even if small room on the ground floor is taken to be available to the landlord, still he bona fidely required additional accommodation. Two rooms for two married sons, one for the landlord and his wife (after death of landlord for his widow) and one room for the unmarried son of the landlord are the minimum requirement. One room is also required to be used as drawing room or for the married daughters whenever they visit. Moreover, small room on the ground floor admeasuring 8 feet x 8 feet is too small to be used as a residential room unless someone is short of accommodation and unable to arrange for proper accommodation. Apart from it, it is not uncommon to have one Pooja room. Lower Appellate Court also found the said room was used at Pooja room. However, lower Appellate Court held that the said room could be used for other purposes also. It would be too much to ask any one to use Pooja Room as bed room.

(3.) IN respect of comparative hardship Prescribed Authority has held that as tenant did not make any effort to search alternative accommodation after filing of release application, hence balance of comparative hardship was tilted against him. In this regard lower Appellate Court held that family of the tenant consisted of about 25 or 30 persons and one small room and a small Varandah was quite insufficient for their need, hence comparative hardship lay in favour of the tenant. Supreme Court in B.C. Bhutada v. G.R. Mundada : AIR 2003 SC 2713, has held that after filing of the release application tenant must make effort to search alternate accommodation otherwise question on hardship will have to be decided against him. Merely because family of the tenant is quite big, release cannot be denied if need of landlord is found to be bona fide. Prescribed Authority held that several sons of the tenants were grown up and were earning and if income of all of them was pooled, then they could have arranged for alternative accommodation.