OM PRAKASH VISHNOYEE Vs. IXTH A D J

JUDGEMENT

(1.) This writ petition under Article 226 of the Constitution of India by the petitioner-tenant challenge the order passed by the prescribed authority under the provisions of the U.P. Act No. 13 of 1972 (In short 'the Act') dated 23rd January, 1999 and the order passed by the appellate authority under 'the Act' dated 5th November, 2003, copies whereof are annexed as Annexure Nos. '3' and '4', respectively to the writ petition.

(2.) The brief facts of the present case are that respondent Smt. Shantl Devi is the landlord of the accommodation in question and the petitioner is tenant of duchhatti (mezzanine). The landlord has purchased the accommodation in question by registered sale deed in the year 1974 for residential purpose. The landlord filed an application under Section 21(1)(a) of 'the Act' on the ground that landlord had purchased the accommodation in question by registered sale deed in the year 1974 for the residence of landlord and her family. It is further asserted that the petitioner is tenant of duchhatti (mezzanine) on a monthly rent of Rs. 75 and the family of landlord consist of landlord herself aged about 65 years, son Om Babu Vishnoyee aged about 40 years, his wife Smt. Anita aged about 34 years, another son Umesh Kumar Vishnoyee aged about 30 years, his wife Smt. Archana aged about 25 years and five grandchildren aged about 15, 11, 5, 5, 2, respectively. All the aforesaid members of family of the landlord are residing alongwith the landlord in the accommodation in question. It is further stated that there are only three rooms in possession of the landlord, alongwith three stores, two baramdahs, kitchen and courtyard, which considering the total number of members of family of the landlord is inadequate as the two sons, namely Om Babu and Umesh Kumar of the landlord are married and that the family of Om Babu consist of himself, his wife, one son and two daughters and the family of next son Umesh Kumar consist of himself, his wife, one son and one daughter, thus there were four school going children. The eldest grandson of the landlady is student of Class-XI and another is student of Class VII and two children are student of class nursery (at the time when application under Section 21(1)(a) of 'the Act' was filed in 1998). Apart from above, the landlady has five married daughters who also visit of and on. Thus, the landlady requires at least two rooms accommodation for visiting daughters and son-in-laws and their family. That both married sons are living in three rooms and stores which are at present available to the landlady with their family thus there is hardly any place for landlady herself to live and there is no place where she can fix her place of worship. It was therefore prayed by the landlady that the accommodation in question may be released in favour of the landlady. Before filing the application under Section 21(1)(a) of 'the Act', the landlady has also served a notice of six months dated 18th August, 1997, which has already been served on the tenant seeking therein that she would be filing application under Section 21(1)(a) of 'the Act' for release of the accommodation in question, it was therefore submitted on behalf of the landlady that the need of the landlady is bona fide and more pressing.

(3.) As against this, the petitioner-tenant filed his objection denying the allegations made by the landlady in her application under Section 21(1)(a) of 'the Act' and stated that the tenant is in possession of duchhatti and baramdah and height of Duchhatti is 6 fit. The tenant has denied the allegation of the landlady that she has bonafide requirement or that the pressing need, which may warrant release of the accommodation in question in favour of the landlady. The tenant also stated that the landlady has another house in Patkapur locality of same city, which has been let out by the landlady and the house situated at Patkapur is a spacious house in which landlady can shift in case she requires additional accommodation. The family of tenant consist of himself, wife and four sons. Out of four sons, one is physically handicapped. During the pendency of the proceedings, objection has been raised by the petitioner-tenant that another accommodation was available to the landlady when one of the tenant, namely, Jai Narayan has vacated the accommodation, which was in his possession and the vacancy whereof has been declared by the Rent Control and Eviction Officer by the order dated 24th May, 2000, and even assuming that there was any need of the landlady, the same stood satisfied when the aforesaid accommodation, which was in possession of Jai Narayan was declared vacant and ultimately released in favour of the landlady. The landlady denied the allegations made in the affidavit in which it is stated that Jai Narayan has vacated the accommodation somewhere in the month of May, 2000, when the same was declared vacant and it was in fact by the landlady before filing of the application and it was in order to avoid any technical objection that the aforesaid fact was informed to the Rent Control and Eviction Officer by the landlady and thereupon the vacancy was declared by the order dated 24th May, 2000 and the accommodation was ultimately released in favour of the landlady. The landlady further submitted that the accommodation, which was in possession of Jai Narayan has been described by the landlady in her application under Section 21(1)(a) of 'the Act' to be in her possession, that is why the landlady is in possession of three rooms etc., thus it is incorrect to say that the landlady has got possession of any additional accommodation during the pendency of appeal before the appellate authority, as stated above.