A.P.Misra - (1.) -The petitioner has challenged the orders dated 6th of October, 1978 passed by the Prescribed Authority and 25th April, 1984 passed by the Vth Additional District Judge, Moradabad in a proceeding under section 21 of U. P. Urban Buildings (Regulation of Letting, Kent and Evictionj Act, 1972. By means of the impugned order the authorities below have directed to release disputed shop in favour of the landlord, respondent no. 2. The authorities below held that the need of the landlord was bonafide and genuine and further held that the disputed shop also required demolition since the condition of the building was not satisfactory.
(2.) THE petitioner is a tenant of the shop in question Respondent no. 3, namely the landlord filed an application under section 21 (1) of the said Act for release of the shop on the grounds that his son Satish Chandra is jobless and needs this shop for running his business and further since his family consists of about 25 members units), he requires the accommodation in question also for residential purposes. It was contended in the application that after demolition respondent no. 3 would construct residential portion as well as two shops. THE petitioner contested the matter and denied the allegations made therein. It was further urged that respondent no. 3 has other house and he did not require the accommodation in dispute. THE plea that the accommodation was in a dilapidated condition was also denied. THE case of respondent no. 3 further was that he received a notice from the Municipal Board for demolition of the shop in dispute as the same was in a dilapidated condition. This fact is denied by the petitioner and it was urged that the said notice is manipulated and procured and thus no reliance should be placed on it. However, after hearing the parties both the Prescribed Authority and the Appellate Authority accepted the contention of the landlord and released the building in question. THE Prescribed Authority held that the landlord had proved that his need for the disputed accommodation was bonafide and genuine and more pressing than that of the tenant. It was also held that the disputed accommodation could not be in a ruinous condition, still from the evidence it is proved that it is in a dilapidated condition. THE appellate authority after hearing the counsel for the parties dismissed the appeal. Aggrieved against the said two orders the petitioner filed the present writ petition with a prayer of quashing of the said two orders. Firstly it is alleged by the counsel for the petitioner that before comparing the need between the landlord and tenant it was necessary that the landlord must prove that his need is genuine and unless he proves that, the question of comparing the need between the two does not arise. THE Prescribed Authority has taken into consideration for holding it that one of the sons of the landlord namely Satish Chandra is unemployed and requires for running his business. THEre is no alternative shop available where he could start his business. THE family of the landlord consists of 25 units and thus he requires additional accommodation for the residence also for which he would have to reconstruct the building on the face of the disputed shop to adjust the exigency and need of the family members both for the purpose of construction of a shop for his son and additional accommodation for the residence of his family members. It is not in dispute that the landlord has 25 units and his son has no shop for starting business. It is not the case of the petitioner (tenant) that the existing accommodation with the landlord is sufficient but what has been contended in the courts below and even before me was that on an open piece of land he could make his construction. It is also not in dispute that the shop in existence by the side of the disputed shop is in dilapidated condition. He has five major sons and four of them are married In tact, during the proceedings before the courts below the tenant suggested to accommodate some of the members of the landlord's family. From these facts it cannot be said that the finding recorded by the courts below that the need of the landlord is genuine is either illegal or perverse. Coming to the question of comparative needs between the landlord and tenant I find that both the courts below have held that the need of the landlord is greater and no hardship could be caused to the tenant in case of release of the said accommodation. However, what has been urged on behalf of the petitioner was that in considering and comparing the need of the two, the courts below have not taken into consideration the total unit namely 36 members of the petitioners who are living as Joint Hindu Family, and in not considering the same courts below committed illegality which calls for interference by this Court Reliance was placed on the basis of evidence in the written statement and the affidavit filed before the prescribed authority to contend that the Joint Hindu Family is continuing in the said accommodation. Petitioner further relied on the case of Sandeep Jain v. Ilnd Additional District and Sessions Judge Lucknow, (?) ARC 164 which says that it is a valid consideration where the pleading is made that the tenancy was of Joint Hindu Family. It is not necessary to go in this question. Suffice it to say that in the present case on the perusal of the plaint and the affidavits it cannot be said that the petitioner ever made averments that the accommodation in question was given on tenancy to the Joint Hindu Family. Only vague allegations were made that the premises in question the Joint Hindu Family business was also being conducted. Without making any averments either to the pleading or in the affidavit the tenancy was given to the Joint Hindu Family and without any specific ground being raised non-consideration of the same by the courts below cannot be said to be either illegal or perverse. The principle of pleading is well settled. Unless a person makes a clear pleading and leads evidence to that effect, he cannot be permitted to raise that point for the first time in the writ petition and demand for quashing of the order due to non-consideration of that point It is only when specific pleadings are made and the evidence are led and if the authority does not consider, that would be a ground for interference in the impugned order. Thus the contention raised on behalf of the petitioner that non-consideration of the comparative need on the basis that the petitioner's Joint Hindu Family consists of 36 units could not be said to be illegal.
(3.) FURTHER the argument raised on behalf of the petitioner is that the respondent could reconstruct for the purpose of a residence and shop for his family members and his son Satish Chandra on an open piece of land which is available. He could make a construction there instead at the disputed accommodation after demolition. Even before me by means of exchange of affidavits this point was urged and it is denied on behalf of the respondent no. 3 (landlord) by giving various measurements showing that there is hardly any space after excluding the construction made thereon for the purpose of making any construction. However, I am not going to enter into this controversy nor it is necessary for me to go into this disputed question of fact. The courts below have decided and have concurrently held the need of the parties on the basis of the guidelines laid down under the aforesaid Act and Rules framed thereunder. While making the application under section 21 of the aforesaid Act, the landlord has to show that his need is genuine. Rule 16 (2) of the aforesaid Act lays down while considering the application for release under clause (a) of sub-section (1) of section 21 in respect of a building let out for purposes of any business, the prescribed authority shall also have regard to such facts which are found in the present case. The authority shall also have regard as laid down in sub-clause (a) to (d) under the same sub-rule. No doubt this is no exception but looking to the scheme of the Act and considering the need of the landlord and tenant it cannot be urged that in camparing the hardship, consideration for making a fresh construction on an open piece of land which is under the ownership and possession of the landlord, would be proper criterion for rejecting the claim of the landlord. It is significant that the scope of the present Act is to regulate the letting, rent and eviction of a building. Even a tenant and landlord is defined in relation to a building. The various consideration under this Act is in respect to building and not the open piece of land. Thus in considering the comparative need of the landlord and tenant, the authorities have to consider the availability of the alternative accommodation in existence of both landlord and tenant but it cannot be further extended to direct either to construct an accommodation on open piece of land and satisfy the need. Such a consideration could not be within the four corners of the said Act and thus the argument of the petitioner that landlord should construct such accommodation for satisfying his need on some open piece of land, is not tenable. In the present case it has been further found that the petitioner is already in possession of six other shops and the question raised in the court below was that since he is living in the Joint Hindu Family, his brother requires the said shop for his business. The appellate authority rightly held that his brother does not come within the meaning of family as defined under the Act and thus the appellate authority rightly rejected the claim of the petitioner on this score. It is also not in dispute that the petitioner is bachelor. Both the authorities have taken into consideration all these factors to come to the conclusion that the claim of the petitioner that the accommodation in question be released is justified.;