SHANTI SWAROOP SHARMA Vs. RAJESH KUMAR SAXENA

JUDGEMENT

(1.) Heard learned counsel for the petitioner; Sri Yogesh Kumar Saxena for the plaintiff-respondent and perused the record.

(2.) The landlord-respondent filed an application for release under Sec. 21(1)(a) of the U.P. Act No.13 of 1972 for a mixed purpose in the sense that the accommodation was required to enable his unemployed son to settle in district Pilibhit for doing business of supply of medical instruments to nursing homes, etc. running in district Pilibhit. The tenant petitioner was using the accommodation for residential purpose. The release application was allowed by the Prescribed Authority but was rejected by the appellate court by placing reliance on clause (ii) of the third proviso to Sec. 21(1) of the U.P. Act No.13 of 1972 which places an embargo on release of residential building for commercial purpose. Against the appellate court's order dated 20.12011, Writ-A No.13806 of 2012 was filed by the landlord-respondent which came to be allowed by order dated 15.09.2015 on the ground that the dominant purpose of the need would have to be determined to ascertain whether release was sought for residential or commercial purpose. Accordingly, the matter was remanded to the appellate court to consider the matter afresh in the light of the observations made in the order of remand. In the order of remand it was specifically observed that the appellate court shall specifically consider the nature and extent of the accommodation required for residential need set up by the landlord, in case of shifting to District Pilibhit for establishing medical instruments business, and, simultaneously, shall consider the nature and extent of the accommodation required for opening an office and a godown for storing medical instruments. The order of remand further provided that after consideration of these aspects, the suitability of the accommodation for the need of residence and business set up by the landlord should also be considered and, in case the Appellate Authority comes to the conclusion that the Prescribed Authority has not considered all these aspects of the matter, it would record its own finding, as per the above direction, instead of remitting the matter back to the trial court. It was further provided that fresh finding on bona fide need and comparative hardship should be returned by the appellate authority without being influenced by any of the observations made in the order of remand.

(3.) Pursuant to the order dated 15.09.2015 passed in Writ-A No.13806 of 2012, the appellate court examined the matter afresh and took on record affidavits from landlord as well as tenant. On the basis of the material brought on record including the maps attached with the affidavits the court below came to the conclusion that the house in question had six rooms, which were marked by letters A, B, C, D, E and F in the map (which was made part of the impugned order); a big court yard H -16'6" x 26'8" (feet/inch); an open courtyard G; an open platform adjacent to main gate; a kitchen C-2; and a verandah C-1- 9'5" wide, besides toilet and bathroom. The court recorded a finding that a room abutting the main gate with dimensions 16.1 x 7.11 feet, looking to its situation, would meet the landlord's requirement for an office. Rest three rooms along the southern wall behind the room proposed for office would meet the requirement for residence of the son of the landlord and the courtyard H could be used for godown. The court found that nothing was brought on the record to indicate that the landlord's son was not unemployed and considering that in the present era unemployment of youth is one of the most painful problems in the country, the need of the landlord to settle his unemployed son at Pilibhit was found genuine and bona fide. On the question of comparative hardship, the court came to the conclusion that the tenant was aged 82 years and had a daughter to look after; therefore, to balance the need of the parties, it considered part release of the accommodation in dispute and, vide impugned order dated 28.11.2016, released a portion of the accommodation in favour of the landlord, which satisfied his need, and left the remaining portion with the defendant along with certain facilities which were left to be shared by both the parties.