Poonam Srivastav, J. - (1.) HEARD Sri S. C. Mandhyan, learned counsel for the petitioner and Sri Rishi Chaddha advocate for the landlord/ respondent.
(2.) THE landlord instituted a release application under Section 21 (1) (a) of the U. P. Act No. 13 of 1972 (hereinafter referred as the Act) to release the accommodation No. 29/274/4 Katra Haji Hasan Nala, Peepal Mandi, Agra. THE release application was filed on the ground that the landlord had purchased another House No. 29/274/3 and 29/274/5 situated in Katra, Haji Hasan Nala, Agra from Dr. Abdul Jalil Beig vide sale deed dated 30.10.1998 for starting a school in the name of L. K. Mansoori Public School. THE disputed accommodation was required for extension of school. Besides, the tenant had taken unauthorized possession of one room on the ground floor and one room on the first floor, open roof and staircase of which he was not a tenant. In fact only astbal and phatak was let out at rent of Rs. 50 per month. Previously the landlord was running his school from property No. 23/24 Pai Chowki, Agra which now stands transferred to the newly purchased property and studies upto Class VIII were being conducted having 16 teachers, 2 clerks, 2 Chaprasi, 1 Safai Karmchari and 448 students at that time. Now the permission was accorded to the landlord to extend the school up till High School stage and since the disputed accommodation which was unauthorizedly occupied by the tenant as well as the accommodation already in his tenancy, was required to run the classes as it was in the same vicinity. 150 additional students were transferred from Pai Chowki, Agra and the landlord had made a request to the petitioner for vacating one room on the ground floor and one room on the first floor and the staircase. Previously the tenant gave assurance but subsequently he failed to respect his promise. THE landlord claimed that the property was bona fidely required and greater hardship will be caused in great measure to the landlord in the event of refusal of release. Besides, it was pleaded that the petitioner has got a property No. 29/183, Nala, Peepal Mandi, Agra where he has got a shop which is near the property in dispute. In addition to this he is owner of Sunita Raj Bhawan. THE tenant contested the release application on the ground that he was doing crockery business on the ground floor and the first floor was being used for storing the goods as well as for residential purpose. THE alternative accommodation suggested by the landlord was denied by the tenant on the ground that the property was in possession of his brother Gyan Chand who lives separately and phatak was in possession of the son of the petitioner Gopi Chand who also lives separately and doing his separate business. THE property situated at Geeta Bhawan was claimed by the tenant to belong to his brother Sarvan Kumar who is also living separately and having his own business. Oral and documentary evidence were led. THE prescribed authority by virtue of judgment and order dated 1.9.2005 dismissed the release application. THE finding on the question of bona fide need and comparative hardship was recorded in favour of the petitioner. Aggrieved by the judgment and order dated 1.9.2005, the landlord-respondent preferred Rent Appeal No. 159 of 2005 in the court of District Judge, Agra which was transferred to the Court of Additional District Judge, Court No. 18, Agra who allowed the release application vide judgment and order dated 10.5.2006 on both the counts that the need of the landlord is bona fide and he will suffer greater hardship than the tenant in the event of refusal of release. The petitioner has tried to assert in the writ petition that the landlord has failed to produce any document that any such approval was accorded by the High School and Intermediate Board for upgrading his school up till class X. Assuming the school was upgraded then there was sufficient accommodation and also it is pleaded for the first time in the writ petition that the petitioner is a blind person. Counter-affidavit has been filed, all the assertions in the writ petition have been disputed. As agreed between the respective counsels, the writ petition is being decided at the stage of admission itself.
(3.) I have heard the respective counsels at length and gone through the judgments. The lower appellate court has recorded a finding on the basis of tax assessment record. In fact the disputed accommodation in tenancy is only astabal/phatak and the tenant has deliberately tried to confuse the issues before the trial court. Besides, after taking into consideration the evidence adduced on both sides, while recording a finding on the question of bona fide need, a number of decisions have been followed on the principles laid down in Gaya Prasad Rastogi v. VIIIth Additional District Judge, Kanpur, 1990 (2) ARC 313 ; 1990 (2) AWC 1330, where this Court has concluded that while recording a finding on the question of 'bona fide need' the Court has to assess on the basis of evidence that whether the intention of the landlord is mala fide or not? If the Court is of the view that there is no malice while instituting the release application and requirement pleaded by the landlord appears to be satisfactory and substantiated, it is sufficient to come to a conclusion that the need is bona fide. Similar view was expressed in the case of Jagdish Singh v. VIIth Additional District Judge, Kanpur, 1986 (1) ARC 361. Admittedly the disputed accommodation was also purchased alongwith other two buildings mentioned in the foregoing paragraphs of this judgment and admittedly for the purpose of running a school which was in occupation of the tenant since before its purchase, he had subsequently usurped some additional accommodation and, therefore, the landlord cannot be deprived of his own property only because the tenant is not willing to do so. In the case of Jayant Kumar v. Prescribed Authority, Nainital and others, 1991 (1) ARC 456, it was held that it was not necessary for the landlord to establish from evidence that he is in a dire necessity of the accommodation in question, even if his requirement stands established by sufficient proof. It is enough to come to a conclusion and hold that it is bona fidely required. There are several recent decisions on the same lines which need not be gone into.;