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2016 Supreme(All) 3430
ALLAHABAD HIGH COURT
Sunita Agarwal, J.
Aizaz Nabi And 3 Others - Appellant
Versus
Abdul Hai - Respondent
Writ A No. 18916 of 2016
Decided On : 27-04-2016
For the Petitioners:- Shashank Tripathi, Advocate.
For the Respondent:- Mohd. Akaram, Advocate.
The judgment emphasizes the importance of establishing a bona fide need for accommodation and the absence of undue hardship on the tenant in release applications under the Uttar Pradesh Urban Buildings Act.
Headnote:
Release Application - Challenge to Orders - Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act No.13 of 1972 - Section 21(1)(a)
Fact of the Case:
The petitioner challenged the release orders passed by the Courts under Section 21(1)(a) of the Uttar Pradesh Urban Buildings Act. The landlord claimed a bona fide need for the residential accommodation under tenancy of the petitioner due to the growing family.
Finding of the Court:
The Court found that the landlord's need for at least eight rooms for his family was justified and that the petitioner did not establish the availability of alternative accommodation for the landlord's family. The Court also noted that the petitioner owned other properties and would not face undue hardship if the landlord reclaimed the disputed premises.
Issues: The issues included the maintainability of the release application and the comparative hardship faced by the parties.
Ratio Decidendi: The Court held that there was no prohibition for filing a fresh release application on the same ground, even if an earlier application was decided on merits. The Court also emphasized the need to establish the bona fide need for accommodation and the absence of undue hardship on the tenant.
Final Decision: The writ petition was dismissed, and the petitioner was directed to vacate the premises and pay rent until the vacation date.
Mrs. Sunita Agarwal, J. –
By means of the present petition, the petitioner is challenging the orders of release passed by the Courts below in a proceedings under Section 21(1)(a) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act No.13 of 1972 (hereinafter referred to as the 'Act'). The release application was filed in the year 2008 for the need set up by the landlord therein with regard to the residential accommodation under tenancy of the petitioner.
2. In paragraph 2 of the release application, it was categorically stated that the landlord possess only three rooms in Premises No. 40/159, Maida Bazar, Kanpur Nagar which are lying on three different floors of the said premises. The total number of family members of the landlord have been described in paragraph 3 of the release application consisting of his four married sons, their children, landlord himself and his wife.
3. It was also stated in paragraph 5 of the release application that the opposite parties are co-owners of House No. 40/159 Maida Bazar, Kanpur Nagar and own ? share in the said house. They are also owners of another house bearing Municipal No.45/105 Nai Sarak, Kanpur Nagar. They can conveniently shift in their residential house after settlement of this dispute.
4. In paragraph 7 of the release application, it was stated that the sons of the landlord were doing business of sale of footwear in a shop at premises No.44/308, Machhali Tola, Kanpur Nagar as well as in a shop in premises No.42/145, Bisati Bazar, Kanpur Nagar. With the growing family the landlord is in dire need of the house in question. This release application was contested by the opposite party-tenant on the ground that the need set up by the landlord was illusory as there was sufficient accommodation in possession of the landlord in the premises in question, itself.
5. As an additional plea, it was stated by the opposite party that a family settlement had been arrived between the petitioner, his brother Abdul Salaam and opposite party's father namely Sri Mohd. Qaiyyum in the year 1992 through an Arbitrator Bhagwan Swaroop.
6. According to Clause 2 of the Arbitrator agreement, it was settled that if the deceased Mohd. Qaiyyum i.e. father of opposite party would vacate the portion of premises No. 42/145, Basati Bazaar, Kanpur Nagar, in his occupation i.e. the premises in question, then the petitioner Abdul Hai shall waive off his ?rd share in premises No.40/159, Maida Bazar, Kanpur Nagar (the premises wherein the applicant-landlord is living).
7. It is further stated in paragraph 19 of the written statement that the said Arbitration Award was still effective and binding on the respective parties and their heirs and legal representatives.
8. The Court below framed three issues: -
Issue No. 1 regarding landlord-tenant relationship was decided in favour of the applicant-tenant as there was no dispute raised by the opposite parties.
On issue No.2 i.e. the bona fide need and it was found that there are 24 members in the family of the landlord and he required at least eight (8) rooms for residence of his family.
Issue No.3 on comparative hardship, it was found that the opposite party owns a House No. 45/105, Nai Sarak, Kanpur Nagar. The Appellate Court affirmed the findings of the Prescribed Authority vide judgment and order dated 10.2.2016.
9. Challenging these findings, the submission of learned counsel for the petitioner is that the release application itself was not maintainable. Earlier, one release application was filed in the year 2006 by Abdul Hai against Mohd. Qaiyyum but it was dismissed on 2.11.2007. The restoration application moved by the landlord was dismissed on 11.3.2008. In the said proceeding, the petitioner/opposite party have not been impleaded. The present release application was filed during the pendency of the recall application of the dismissal order dated 2.11.2007.
10. It was not open for the applicant-landlord to file another release application wit
