K L MALHOTRA Vs. ADDITIONAL DISTRICT JUDGE GHAZIABAD

JUDGEMENT

(1.) THE first writ petition filed by landlord arises out of eviction/release proceedings initiated by him against tenant-respondent No. 3 Mukesh Kumar Goel on the ground of bonafide need under section 21 of UP. Act No. 13 of 1972 before Prescribed authority/civil Judge, Ghaziabad in the form of P. A. Case No. 64 of 1987. Property in dispute is residential in nature situate on ground floor containing three rooms, two verandas, kitchen, Courtyard, bath room and latrine. Out of three rooms one room is quite big 17 feet x 14 feet. Petitioner stated that he was employed in Madhya Pradesh and retired on 31. 7. 1998, thereafter he shifted to Ghaziabad and was residing on the first floor which contained only two verandas. Petitioner's family at the time of filing of the release application consisted of himself, his wife and two sons. (Petitioner's daughter had been married by then ). The Prescribed Authority allowed the release application in part through judgment and order dated 17,2. 1990. Prescribed authority held that on the first floor the two verandas in which landlord was residing were like rooms and could be converted into two rooms by making minor alteration i. e. by raising two small portions of walls with doors and windows. Prescribed Authority released only one room (10 feet by 9 feet) on the ground floor in tenancy occupation of respondent No. 3. The other option given to the landlord by Prescribed Authority was to exchange the accommodation with the tenant. Against the said judgment and order both the parties filed appeals. Landlord's appeal was registered as R. C. Appeal No,30 of 1990 and of tenant as R. C. Appeal No. 45 of 1990. Vth Additional District judge, Ghaziabad substantially dismissed both the appeals. On 3. 3. 1992 However, learned A. D. J. held that the directions given, observations made by the Prescribed Authority that either one room on the ground floor shall stand released in favour of the landlord or if landlord wanted to have the entire ground floor accommodation then he should handover possession of the first floor accommodation to the tenant after converting the verandas into rooms were not correct. The Appellate Court reversed the order of the Trial Court regarding exchange of accommodation after making alteration in the verandah on the first floor. Appellate Court directed release of one room. Before the Prescribed Authority the tenant had offered that he was ready to vacate one room on the ground floor for the landlord and in the alternative entire tenanted accommodation in case first floor accommodation was given to him in exchange after making some alteration therein by the landlord.

(2.) THROUGH the first writ petition the above orders of Prescribed Authority and appellate Court have been challenged by the landlord.

(3.) AS far as second writ petition is concerned, it has also been filed by the same landlord and arises out of release proceedings under section 16 of the Act with regard to the same property against the same tenant. R. C. and E. O. , Ghaziabad through order dated 31. 1. 1990 passed in Case No. 11 of 1987 Om Prakash v. K. L. Malhotra (which was initiated on the allotment application of Om Praka^h a third party) released the accommodation in dispute in favour of the landlord after declaring the same to be vacant. Against the said order tenant-respondent No. 3 filed R. C. Revision No. 12 of 1990. Vth Additional District Judge, Ghaziabad allowed the said revision on 3. 3. 1992 and set aside the release order. Revisional Court held that the landlord in release proceedings under section 21 of the Act had admitted Mukesh Kumar Goel as tenant hence there was no question of any vacancy (landlord in proceedings under section 16 of the Act had contended that initially Shri V. P. Goel real brother of Mukesh Kumar Goel was tenant who had shifted to his own house and had sublet the premises to his brother Mukesh Kumar Goel ). In my opinion the view taken by the Revisional Court is perfectly correct in law. In the release application under section 21 of the Act landlord-petitioner no where stated that Mukesh Kumar Goel was not the tenant or was only sub-tenant and not tenant. In the said application it was clearly mentioned that Mukesh Kumar Goel was the tenant.