- (1.) PRADEEP Kant, J. This writ petition arises out of proceedings under Section 21 (1) (a) of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 whereby the need of the landlord has been found to be bona fideand genuine resulting in the order of release of a portion of the premises in dispute in favour of the landlord. The tenant Dr. Chaman Lal Singhal, being aggrieved by the aforesaid orders passed by the Prescribed Authority and confirmed by the Appellate Court, has preferred this writ petition under Article 226 of the Constitution of India.
(2.) ADMITTEDLY, late Shyam Sunder Tewari, father of respondent No. 3 Suresh Chand Tewari constructed the house in question. The said house devolved upon both the sons of Shyam Sunder Tewari namely, respondent No. 3 Suresh Chand Tewari and Hem Chand Tewari (elder brother ). Shyam Sunder Tewari divided the aforesaid house into two portions-eastern portion of the said house was given to the elder brother of respondent No. 3 by means of a registered Gift Deed dated 26-9-1968 and the western portion of the said house devolved by virtue of the Registered Will dated 18-5-1982 upon respondent No. 3 Suresh Chand Tewari. The two portions were renumbered and the portion which fell in the share of Hem Chand Tewari was numbered as 409 and the portion which came in the ownership of respondent No. 3 Suresh Chand Tewari bore municipal number 410. Suresh Chand Tewari moved an application for release of the accommodation in view of the need of the members of his family against the present petitioner who was residing as a tenant in the First Floor of House No. 410 situate in Mohalla Purana Qila Police Station Husainganj, Lucknow. This House No. 410 is the same very portion namely the western portion of the house constructed by Shyam Sunder Tewari which devolved upon Suresh Chand Tewari by virtue of Registered Will dated 18-5-1982. Respondent No. 3 laid his claim for additional accommodation on the ground that he was having family of five persons namely, he himself, his wife, his two grown up daughters and one son whereas he was having only two rooms along with two verandahs, kitchen, latrine, store-room, bath room and of course passage and courtyard. It was also pleaded that the petitioner, at the time of moving the application, was having only three members in his family namely, himself, wife and one son Dr. Atul Singhal whereas the accommodation under his tenancy consisted of two rooms, two verandahs, one kitchen, one store room, one latrine, one bath room and passage and open space etc. Besides this requirement of additional accommodation the respondent No. 3 also pleaded that his eldest daughter has completed the course of Shorthand and Typing and she also wanted to open a Coaching and Typing School for helping him monetarily for enhancing his income. Contest was put in by the petitioner by filing written statement in which the need of the landlord was denied and a plea was also raised that the petitioner was using the stair-case also which fell in the share of Hem Chand Tewari, elder brother of respondent No. 3 and, therefore, Hem Chand Tewari was necessary party to be impleaded as respondent and in his absence the application was not maintainable. It was, however, admitted in his written statement that the petitioner was tenant of the entire portion of House No. 410, Purana Qila, Lucknow on a monthly rent of Rs. 41. The accommodation under the tenancy of the petitioner also admittedly consisted of two rooms with one box room inside the room, two verandahs, two Kotharis with a passage in front of them, a kitchen with open space in front, bath room, latrine and the entire open roof above the first floor with a tin-shed and latrine. It has also been admitted in the written statement that these premises were let out by Shyam Sunder Tewari in the year 1955 on a monthly rent of Rs. 30. Later on the rent was enhanced to Rs. 41 per month in two phases. The claim of respondent No. 3 was also challenged on the ground that the elder brother of Respondent No. 3 was also claiming proportionate rent and according to the petitioner, the application was defective and it has been filed by respondent No. 3 alone who was admittedly the owner and landlord of the portion of the accommodation in question tenanted by the petitioner. A plea was also raised that the residential accommodation cannot be got released for commercial purposes as according to the petitioner opening of Shorthand and Typing School is a commercial activity.
(3.) THE parties tendered evidence. On behalf of respondent, Suresh Chand Tewari (Respondent No. 3) examined himself and filed an Affidavit, a copy of the registered Will dated 18-5-1982 and Affidavit of Hem Chand Tewari elder brother of respondent No. 3 while the petitioner filed a few rent receipts and certain Affidavits of his own. The Prescribed Authority, however, rejected the plea of the landlord respondent No. 3 for release of the building on the ground of opening of Shorthand and Typing School as the same was not accepted by the Prescribed Authority but the application for partial release of the accommodation was allowed after holding that the need of the landlord for an additional accommodation was bona fideand genuine looking to the number of members of his family and their requirements and the accommodation available with the landlord at that moment. The Prescribed Authority also found on comparison of hardships of the parties, that the landlord would suffer greater hardship, in case the application is rejected. While allowing the application for relese, in part, the Prescribed Authority also recorded a finding that non- impleadment of Hem Chand Tewari (elder brother) was not fatal to the institution of the proceedings and that respondent No. 3 was established to be the owner of the premises of which the petitioner was tenant namely House No. 410, Purana Qila, Lucknow.;