- (1.) B. K. Singh, J. The petitioner who is admittedly a tenant of opposite party No. 3 of a petition of house No. 45, Lala Prabhu Dayal Road, Cantonment, Lucknow on ground floor has preferred this writ petition challenging the order dated 16-4-1994, passed by the Prescribed Authority under U. P. Act 13 of 1972, whereby he allowed the release application in respect of accommodation in dispute in petitioner's tenancy as well as against the judgment and order dated 30 May, 1996, passed by the VIIIth Additional District Judge, Lucknow, by which petitioner's appeal against the order passed by the Prescribed Authority has been rejected.
(2.) A few relevant facts necessary for the disposal of the writ petition may be stated. That Shri Hari Saran Agarwal, opposite party No. 3, filed an application for release of the accommodation under Section 21 (1) (a) of Act 13 of 1972, The allegation in the application was that his son Shri Dilip Kumar Agarwal has passed LL. B. Examination in 1974 and has entered into legal profession. He has no Chamber of his own. His family resides on the first floor of House No. 45, Sadar Bazar, Cantt. Lucknow. There is no spare accommodation with the applicant, opposite party No. 3 wherein his son Shri Dilip Kumar Agarwal could open his Chamber/office. The premises in tenancy of the petitioner is most suitable for Office/chamber. Shri Dilip Kumar Agarwal has also been elected as a Member of the Lucknow Cantonment Board recently and as such his need for Office/chamber has become more pressing. The applicant's all sons have been established in business except Shri Dilip Kumar Agarwal. For want of Office/chamber he has to attend the office of a Senior Lawyer. The tenant-petitioner has purchased a big house in the name of his wife bearing No. 107, Sadar Bazar, Cantonment, Lucknow, 4-5 years back on the same road hardly at a distance of a few yards. The accommodation in the house so purchased by the petitioner-tenant is stated to contain 4 big rooms one kitchen, one bathroom and one latrine on the ground floor and two rooms on the first floor with bathroom. It was also stated that the petitioner has extended the said accommodation by making new construction. The tenant-petitioner has more than sufficient accommodation for his residential purposes and the ground floor portion, can be used by the petitioner for his commercial activities as it is available in vacant state and he can conveniently and easily shift his clinic from the premises in question to his own house. The opposite party No. 3 claimed that applicant has no other suitable alternative premises for the purposes of establishing his son's Office/chamber whereas the tenant has suitable alternative accommodation in house No. 107, Sadar Bazar, Lucknow. It was also stated in the application that the tenant has acquired a plot measuring 23 ft. x 35 ft. in Hata Ram Das, Gola Sadar Bazar, Cantonment near Railway Crossing on Nehru Road and has started raising construction, which has been raised to a height of 6 ft. on all four sides. Boundary of the said accommodation has been raised. The opposite party No. 3 stated that the Cantonment Board Lucknow at Nehru Road and Badi Bazar crossing has constructed 24 shops which were auctioned on 27 March, 1989 by the Cantonment Board, Lucknow but the tenant did not apply for the same as he already has in his possession sufficient accommodation. The opposites party No. 3 claims that he has bona fide requirement of the premises in question for the occupation of his son Shri Dilip Kumar Agarwal for the purpose of Office/chamber to get established independently in his profession. An undertaking was given that if the premises is released then it will not be let out to any one for any purpose. Finally it was prayed that the application be allowed and the accommodation in the tenancy of the petitioner be released in favour of the o4taer/iandlord. The case was contested by the tenant-petitioner. The first two paragraphs of the landlord's application were admitted. It was stated that the accommodation in petitioner's tenancy is a big hall in which he has made compartments for pathology, surgery and out door patients. It was stated that there are more than 16 flats in the building, which have been let out to different tenants. The flats have been falling vacant from time to time, but they have been let out by the applicant to tenants. The tenant- petitioner stated that during the pendency of the case the applicant has moved a number of release applications, at least six in number as mentioned in paragraph 3 (9) and after getting them vacated, the released accommodation has been let out. It shows that the applicant has no need for any accommodation. It was stated that the applicant has occupied accommodation of Han Singh Hatwal and is living there. The tenant-petitioner then stated that the applicant's son Shri Dilip Kumar Agarwal has opened his Chamber in ROOD Sagar building in a room with open roof on the second floor where even Sign-board of applicant's son had been put up. The same was, however, removed after the institution of the present case. The tenant-petitioner denied that the applicant wants to provide Chamber/office to his son. The tenant-petitioner stated that on 9-2-82 two rooms were got released by the owner-landlord which were in occupation of Mohan Lal as a tenant but he did not inform the Court about the vacation. The tenant-petitioner admitted that Dilip Kumar Agarwal has been elected a Member of the Cantonment Board but he denied his need for an office and again insisted that the accommodation in Roop Sagar building is serving the need of Shri Dilip Kumar Agarwal. The tenant-petitioner stated that carpet area of his house No. 107 is about 600 sq. feet whereas the carpet area of the clinic in tenancy accommodation is about 25 ft x 45 ft. The tenant-petitioner stated that in the house No. 107 there is a garage from which the staircase goes up and there is a septic tank in it. As such it can not be used for dwelling purposes. He parks his car therein. In the remaining portion of the ground floor the tenant has made a drawing room and a store room. There is no proper ventilation and cross ventilation. The tenant claims that there is shortage of accommodation and it is also not hygienic so as to take the patients who are suffering from contageous diseases. The tenant then has stated that the landlord has a number of accommodations which he has been letting. Had there been any need then he could have provided the same for the Office/chamber to his son. The parties led evidence and a Commission was also issued whose report had been filed before the Prescribed Authority. The parties in support of their claim had filed affidavits. A few orders of the release of the accommodation in favour of Hari Saran Agarwal had also been filed by the tenant- petitioner in support of his case.
(3.) THE Prescribed Authority considered the respective case of the landlord-the opposite-party No. 3 and the tenant-petitioner. After considering the evidence led by the parties, the Prescribed Authority by a detailed judgment came to the conclusion that no accommodation is available in Roop Sagar building where office is held by the son. It has also been held that the building is about 3 to 4 kilometres away whereas the accommodation in question is in the main market of Sadar Bazar and is a suitable place for a lawyer's Chamber. THE premises in respect of which the tenant's claim is that they have come in the possession of landlord are all situated in the back of the house. According to the Prescribed Authority the landlord is free to choose the accommodation which he wants to be released and the tenant can not dictate that some other accommodation and not in his tenancy be got released and used. THE Prescribed Authority held that the applicant's son has no other proper accommodation and the accommodation in question is needed bona fide for establishing the son independently in the profession of law. THE Prescribed Authority also compared the comparative hardship of the parties. THE conclusion of the Prescribed Authority is that from the Commissioner's report it is evident that the house No. 107 has sufficient accommodation for running the clinic. THE tenant has five rooms on the ground floor with kitchen etc. and on the first floor he has two rooms and Latrine and Bathroom. THE house is situated on the same road and is at a distance of about 25 yards away. THE Prescribed Authority has held that the application for release was moved in the year 1981 and if the tenant had really made efforts then he could have suitably modeled the accommodation of house No. 107 for shifting his clinic. Besides the tenant has not made any efforts to find out any alternative accommodation for his clinic. THE Prescribed Authority, therefore, concluded that in case the application for release is dismissed then it will cause more hardship to the applicant-landlord because his son will face considerable difficulty in getting himself established independently in the profession of law. THE Prescribed Authority has also considered the case of the tenant that during the pendency of the release application the opposite party No. 3-landlord had got some accommodation released. According to the Prescribed Authority he has recorded the findings of bona fide need and comparative hardship after taking into account the said development. According to the Prescribed Authority the factual aspects of the case makes him say that there is bona fide need and more of hardship to the landlord. THE Prescribed Authority with the above finding has allowed the application and released the accommodation in the tenancy of the petitioner with the direction that he shall vacate the same within two months, failing which the order can be implemented through Court. Aggrieved by the order of the Prescribed Authority the tenant-petitioner had preferred an appeal in the Court of the District Judge, Lucknow. THE appeal stood transferred to the Court of the Additional District Judge. THE Appellate Court heard the parties counsel and he agreed with the findings recorded by the Prescribed Authority. THE appellate court also came to the conclusion that there was no Chamber of the applicant's son in Roop Sagar Building. He categorically held that from the date of commencement of release proceedings till date Shri Dilip Kumar Agarwal, Advocate son of the applicant has no office. On the question of bona fide need the finding recorded by the Appellate Court is that it is established that the need for Chamber/office is still prevailing. THE learned Additional District Judge came to the conclusion that had there been any suitable accommodation for Office available then he would not have failed to occupy it. THE Appellate Court took a view that had there been any suitable accommodation which came in the possession of the landlord then the son would have opened his office there instead of waiting since 1981. THE appellate Court did not find any merit in the plea that release is sought for enhancement of rent. On the point of hardship the appellant court held that the tenant has his own house on the same road at a distance of a few yards from the accommodation in his tenancy hence shifting to it would not cause any hardship to the tenant. On the other hand if the release application is rejected then the landlord's son would face more hardship and would be adversely affected. THE Appellate Court also held that from a perusal of the entire evidence on record he is of the view that bona fide need of the applicant is established and on failure to get the accommodation vacated more hardship would be caused to landlord than to the tenant. THE learned Additional District Judge accordingly came to the conclusion that on the grounds set up in the appeal he is of the opinion that the appeal is not worthy of being allowed. He accordingly dismissed the appeal and again gave two months further time to the tenant to vacate the premises. It is against the above concurrent findings recorded by the two courts that the tenant has preferred this writ petition.;