AMAR BIR SINGH Vs. DISTRICT JUDGE DEHRADUN

JUDGEMENT

(1.) THIS landlords' petition under Article 226 of the Constitution arises out of proceedings under Section 21 of U. P. Act, 1972 (hereinafter referred to as 'the Act) in which the petitioners' application for release has been dismissed by the prescribed Authority and the appellate authority. The two petitioners who are brothers got the disputed property under a gift from their grandmother. The contesting respondents have been tenants in this property since 1949 or so when they came to Dehradun as displaced persons from West Pakistan and have been running a motor workshop in it. The petitioners were both in Europe, one brother working in West Germany and the other apparently as a student. Their father was doctor in the Army and after his retirement from the rank of Brigadier in 1974 has been living in his own house 13 Chander Road, Dehradun. The application under Section 21 of the Act was moved by the petitio ners who were in Europe through an attorney on the ground that their doctor father required the premises for starting a polyclinic and nursing home. The Prescribed Authority held (1) that the father was not a member of the petitioners' family under the definition of 'family' in Section 3 (g) of the Act and his need could not be considered for release under Section 21 of the Act, (2) that there was no bona fide requirement of the disputed premises for starting a polyclinic and nursing home which could well be started in 13 Chander Road, Dehradun, (3) that the test of comparative hardship was also in favour of the respondents, and (4) that the application was defective for not impleading Wazir Chand Ahuja, the head of the respondents family. In appeal the District' Judge per judgment dated 30-4-1977 confirmed the finding of the Prescribed Authority on point No. (1) and noted that on account of this finding he did not have to consider the other points. He, however, went on to observe that having heard counsel for the parties and gone through the judgment of the Prescribed Authority "I entirely agree with the assessment of the latter. That would be another ground for dismissing this appeal," Point No. (4) above was not touched by him and has also not been refused to in arguments in this petition. The first point urged on bhealf of the petitioners is that the finding on point No. (I) was illegal. It was submitted that there was a presumption under the personal law that the father and the sons were members of joint Hindu family and if this was the status the father has to be treated a member of the petitioners' family within the meaning of Section 3 (g). It is not possible to accept this contention. By Section 3 (g) the Legislature has prescribed a specific limited connotation for the word 'family' under the Act. So far as the parents of the landlord are concerned under this defini tion only "such parents,.....as may have Been normally residing with him" are covered by the definition. Joint ness of status under the Hindu Law cannot be equated with normal residence together for the two may not co-exist. There may be joint ness without residence together and vice-versa. Therefore, whether the parents form part of the family has to be determined by examining whether they have been normally residing with the landlord son or sons. Where during the relevant period both the sons had been abroad, one virtually settled in West Germany and the other stated to have been studying in Europe, it is not possible to say that when the father on retirement returned to 13-Chander Road, Dehradun he began normally residing with the petitio ners. The fact that one of the petitioners has since the decision of the appeal by the District Judge returned to India and commenced his export business here makes no difference so far as the period relevant to the finding is concerned. There is another aspect of the matter. The father in the present case is living in his own house. If the sons live in the same house and there is residence together even then it will not be a case of the father nor mally residing with the sons but of the sons normally residing with the father. The ownership of the house makes all the difference. If it is the father's house the sons would ordinarily be living as his licensees. On the other hand, if it is the sons' house the father would be treated to be living with the sons. Certain other considerations may also be relevant specially where the house happens to be an ancestral or joint property. What is clear is that on the facts this is not a case where during the period of pro ceedings under Section 21 the father could be regarded as a person normally residing with the sons on account of joint ness of status or because of the fact that the Indian address of the sons was also 13-Chander Road, Dehradun. The next contention was about the import of the words "bona fide required .... by the landlord for occupation by himself or any member of his family, or any person for whose benefit it is held by him .. .." in Sec tion 21 of the Act. It was urged that 'occupation by himself did not exclude occupation for a person who was strictly not a member of the family as per definition under Section 3 (g) and from this point of view irrespective of whether the parents were members of the family as defined or not the occupation by parents should be regarded as occupation by son-landlords because the parents need becomes the need of the landlords owing to the ties of blood and affection. There is no difficulty in agreeing that the words 'required for occupation by himself" cannot be restricted to the requirement of the landlord personally and occupation by them alone so as to exclude the need of and occupation by any one else who may not be a member of the family as defined in Section 3 (g). In appropriate cases 'required .... for occupation by himself" would cover the need for occupation by relations, friends, associates and employees whose occupation could be regarded as occupation need of the landlord himself. The provisions of Section 21 cannot be interpreted so as to discount the ties of affection, friendship or kinship. It will, however, be a question of fact in each case whether the landlord is so identified or concerned with the need of such other persons that he can call the requirement for occupation by them to be his own requirement. The cases of appropriate dependents other than family members may legitimately fall in this category. In the present case, however, it is not possible to take this view with regard to the father who has retired from a senior position in the Army and has been living in his own bungalow in Dehradun. Thus even from this point of view the finding of the appellate authority cannot be regarded as illegal. There was a feeble attempt to urge that the father in this case is covered by the phrase "person for whose benefit it is held". THIS contention is without force. Only cases where the property is held in the nature of trust for the benefit of others would be covered by this phrase. There is no evidence whatsoever to show that such was the case here or that the property had been ear marked for the purpose of father's polyclinic and nursing home on retirement from the very beginning. Thus the finding of the lower appellate Court on point No. (1) does not suffer from any infirmity and the rejection of the petitioner's application by the authorities below does not call for any interference. In view of this finding it is not necessary to consider whether he judgment of the appellate authority affirming the findings of the Prescribed Authority on the question of bona fide requirement and comparative hardship can be assailed for failure to record reasons.