LILAWATI Vs. ADDL DISTT JUDGE MUZAFFAR NAGAR AND

JUDGEMENT

(1.) THE petitioners are owners of House No. 31, Mohalla Kucdanpura, Muzaffarnagar. Petitioner No.1 is the widow of Sri Gopi Chand deceased and the petitioner No. 2 to 7 are the sons of Gopi Chand deceased. Sri Gopi Chand died in 1953 leaving his widow and five children four of whom were minors. It appears that in or about the year 1960-61 a part of the premises in question was let out to respondent No. 3 Jagdish Prasad Bandhu. An application under Section 21 of the U.P. Act XIII of 1972 was filed by the petitioners on various grounds. THE two important grounds with which we are concerned in this writ petition are that Sudhir Kumar petitioner No. 2 who was in service at Tajpur, district Bijnor had left service in May 1971 and had come back to Muzaffarnagar. He has started his own business and he wants to reside, in his own house along with his family. He had no drawing room or place to accommodate his friends and visitors. In the absence of any accommodation he could not have a separate kitchen for his mess. This was the need which was expressed on behalf of Sudhir Kumar. THE case of Vijai Kumar petitioner No. 4 was that he had completed his legal education and had started practice about 1-1/2-2 years ago. He was shortly to be married and he would require the accommodation for his personal use. Admittedly Vijay Kumar was running his office in one of the room in his possession. This application was only contested by respondent [No. 3 on the ground that the need of the Landlord was not bona fide and genuine and that the accommodation in their possession was sufficient. It was, however, admitted in the written statement that Sudhir Kumar had left service at Bijnor and had come back to Muzaffarnagar. THE allegation was that he was living with his father-in-law. It was further admitted in the written statement that Vijay Kumar was a junior Lawyer who was attending the Chamber of Sri Jia LaL Jain of Muzaffarnagar. On this ground it was pleaded that he did not require any place for his office. THE Prescribed Authority dismissed the application of the landlord vide its order dated April 2, 1973. Aggrieved thereby an appeal was filed before the Additional District Judge, Muzaffarnagar which was also dismissed on April 28, 1973. Hence the present writ petition. I have heard learned counsel for the parties and have also perused the relevant documents. THE District Judge was of the view that since one of the rooms was being utilised by Vijay Kumar as his office, it could not be said that the premises in question was being used for residential accommodation. On the other hand, his view was that a part of this premises was being used by Vijay Kumar for professional purpose and as such Section 21, Explanation (iv) was not attracted. I am not inclined to accept the narrow interpretation which has been given by the District Judge, Muzaffarnagar, to the aforesaid explanation. Admittedly the major portion of the accommodation in question is being used for residential purpose. Vijai Kumar being a young junior Lawyer who as admitted in the written statement, is attending the chambers of a senior advocate, must necessarily require small space for his personal study and for meeting his stray clients. In these circumstances, if he uses one of the rooms in his possession for this purpose, it cannot be said that he has converted the intrinsic nature of the accommodation which is ........ residential to a non-residential accommodations. Admittedly he is living there and study for his profession and also consultation given to his stray clients is a part of his living and normal routine of life. It cannot be said that on account of the existence of these conditions the premises in question is converted into a professional premises. Learned counsel for the petitioner has referred to a decision of this Court Ram Swarup and another v. Ram Niwas 1968 A.L.J. 289 This case was decided by Justice K.B. Asthana (as he then was) and the relevant observation made in this connection may be quoted: "......If what the learned counsel canyassed for were accepted then many advocate, doctors or businessmen would forfeit the tenancy in residential houses when they received their clients, patients of customers in connection with their trade, profession or business in a room earmarked for that purpose in the accommodation taken by them on rent for residential purpose." Counsel for the petitioners has also brought to my notice a Single Judge decision of the Mysore High Court in Mrs. C. Colaco v. Urban D. Silva 1970 All India Rent Control Journal 886. In that case it has been observed as follows: "A lawyer may advise his clients in a room of his house, a doctor may give consultation to his clients in a room of his house, an astrologer may give his predictions to his client in a roof of his house......provided the portions so used from only a fraction of the entire premises and does not alter the nature of the premises from residental to non-residential purpose." In my opinion the view of law as expressed above is very explicit reasonable and just. I am in complete agreement with the view expressed above. In these circumstances, my conclusion is that explanation 4 of Section 21 of Act XIII of 1972 is attracted and the petitioners should have been given the benefit thereof. Learned counsel for the respondents has also very Laboriously cited before me a number of Supreme Court cases in support of his submission that the above interpretation should not be accepted. I do not consider it necessary to deal with them all. THE principles of law as enunciated therein cannot be disputed. I am of the opinion that those rulings would not be of much assistance in deciding the issue in hand. So far as the second point is concerned Sudhir Kumar has left his service at Tejpur, district Bijnor and has come and settled at Muzaffarnagar. THE petitioner claims that he was living in a portion of the premises which was quite inadequate. THE respondents case was that he was living with his father-in-law. THE position seems to be quite clear that the petitioner has returned to Muzaffarnagar after leaving his service. He now desires to live comfortably in his own house and as such he has also applied for it. Bearing these facts in my mind. I am of the opinion that Explanation (2) to Section 21 would also be attracted. THE learned District Judge has not considered this aspect of the matter as he should have done. It is true that he has narrated the case of the parties. But instead of arriving at his findings he has made some assumptions and yet not arrived at any final decision on this issue. In my opinion, he has again erred in law in not giving benefit of Explanation 2 of Section 21 of the Act to the petitioner. Counsel for the respondent submits that in view of the second proviso to Section 21 the respondent No. 3 would be entitled to compensation because, he claims to be a medical practitioner, who is dofng practice also, apart from service in a business concern. On this ground he prays that the case be remanded to the court below for a finding on this question. Learned counsel for the petitioners has very frank in agreed to the payment of two years rent as compensation at that rate of Rs.35/- per months to respondent No. 3. In these circumstances, it is not necessary to remand the case at all. Respondent No. 3 is directed to vacate the premises within three months from today and the petitioners shall deposit the compensation of Rs.840/- before the Prescribed Authority (respondent No. 2) which can be withdrawn by respondent No. 3 on making a proper application in accordance with law. This writ petition is accordingly allowed and the impugned order passed by the Additional District Judge, Muzaffarnagar dated April 28, 1973 (Annexure E) and of the Prescribed Authority respondent No. 2 dated April 2, 1973 (Annexure D) are hereby quashed. In the circumstances of the case parties shall bear their own costs.