- (1.) S. U. Khan, J. Heard learned counsel for the parties.
(2.) THIS is tenant's writ petition arising out of eviction/release proceedings initiated by landlord respondent No. 2, Shiv Swarup Sharma, on the ground of bona fide need under Section 21 of U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, against Pooran Chand. In the application Jagdish Swarup Sharma and Shanti Swarup Sharma were impleaded as pro forma opposite parties. (They are respondent Nos. 3 and 4 in this writ petition.) It was alleged in the release application that Shiv Swarup Sharma and Shanti Swarup Sharma were joint owners of the house in dispute, however, the applicant and they had partitioned their properties among themselves and house in dispute had fallen in the share of the applicant Shiv Swarup Sharma. Release application was registered as Case No. 12 of 1978 and was dismissed by prescribed authority/munsif Khurja through judgment and order dated 5. 9. 1983. Against the said judgment and order, landlord-respondent No. 2 filed R. C. Appeal No. 3 of 1983. 1st A. D. J, Bulandshahr allowed the appeal through judgment and order dated 7. 2. 1990 set aside the order of prescribed authority and allowed the release application of the landlord. The said order is challenged through this writ petition. Property in dispute consists of one room, one kothri/baithak and other amenities, and is situate on ground floor. Rent is Rs. 9 per month. It was alleged in the release application that in partition ground floor had fallen in the share of the applicant and first and second floors had fallen in the share of his brothers Jagdish Swarup and Shanti Swarup. Tenanted accommodation is part of ground floor accommodation which was allotted to the applicant/respondent No. 2 in partition. Remaining portion of the ground floor is in possession of landlord respondent No. 2. It was alleged that at the time of filing of the release application, landlord's family consisted of himself, his wife and three children and his mother and the portion in his possession was quite small and insufficient for his need. It was also pleaded that the tenant had constructed a big house about a year before filing of release application in another Mohatla of the same city and one more house was gifted to him by Smt. Phool Kunwar on 23. 2. 1972.
(3.) THE tenant asserted that the other two brothers of landlord-applicant were residing at Bulandshahr and Delhi and had constructed their own residential houses in those cities and they did not require first and second floor accommodations and entire triple stoned house except tenanted portion was in occupation of landlord applicant. Tenant admitted that he had purchased house in 1965 in the same city. However, it was contended that the same was constructed before 15 or 16 years of letting and was in a dilapidated condition and only one room had been newly built and in the said house tenant's brother and mother were residing and tenant was also keeping his cows and calfs there. It was also admitted that Smt. Phoolwati gifted a house to the tenant in 1972. However, it was contended that the same was also small and in dilapidated condition. Prescribed authority held that no partition as alleged by applicant landlord had taken place and entire house was in possession of applicant-landlord. It was also held that Explanation (i) to Section 21 (1) of the Act was not attracted. By virtue of said Explanation if tenant has built or has otherwise acquired in a vacant state a residential building in the same city, no objection by the tenant against an application under this sub-section shall be entertained. The Supreme Court in Sudha Agrawal v. Xth Additional District Judge and others, AIR 1999 SC 2975: 1999 (4) AWC 2825 (SC), has held that the said Explanation is at par with Section 16 of the Act where tenant cannot dispute the bona fide need of the landlord. However, landlord has to prove his bona fide need but without any objection or evidence on the part of the tenant.;