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1993 Supreme(All) 712
IN THE HIGH COURT OF ALLAHABAD
M.P. SINGH, J
Om Kant Upadhyaya - Appellant
Versus
Xth Addl. District Judge and others - Respondent
Civil Misc. Writ Petition No. 15520 of 1993
Decided on : 30-08-1993
Advocate Appeared:
For the Appellant : Prakash Gupta and Dilip Kumar Agarwal, adv
The court held that while deciding an application for release of accommodation under Section 21(1)(a) of the U.P. Act No. 13 of 1972, the authorities are required to examine the element of need of the landlord and not just the desire to get the accommodation released.
Headnote:
LANDLORD AND TENANT - U.P. ACT 13 OF 1972, SEC. 21(1)(A) - RELEASE OF ACCOMMODATION - BONA FIDE NEED OF LANDLORD - INTERPRETATION - COURT'S ANALYSIS AND CONCLUSION.
Fact of the Case:
The landlord filed an application for release of accommodation, claiming bona fide need. The tenant contested the application, arguing that the landlord had sufficient accommodation and that the release would cause him greater hardship. The Prescribed Authority and the appellate authority allowed the release application.
Finding of the Court:
The court held that the landlord had a bona fide need for the accommodation and that the release would not cause greater hardship to the tenant. The court considered the evidence on record and found that the landlord's family consisted of himself, his wife, two major married sons, and seven grandchildren, and that the accommodation in his possession was insufficient for their needs. The court also found that the tenant had failed to show that he would suffer greater hardship if the release order was passed.
Issues: 1. Whether the landlord had a bona fide need for the accommodation? 2. Whether the release of the accommodation would cause greater hardship to the tenant?
Ratio Decidendi: 1. The court held that the landlord had a bona fide need for the accommodation, as evidenced by the fact that his family consisted of himself, his wife, two major married sons, and seven grandchildren, and that the accommodation in his possession was insufficient for their needs. 2. The court held that the release of the accommodation would not cause greater hardship to the tenant, as he had failed to show that he would suffer any hardship if the release order was passed.
Final Decision: The court dismissed the tenant's writ petition and upheld the release order.
M.P. Singh, J.
While deciding an application u/s 21(1)(a) of the U.P. Act No. 13 of 1972 (for short the Act) the authorities are required to examine the element of, need of the landlord and not just the desire to get the accommodation released. The landlord has to show that he genuinely required the accommodation.
2. The Petitioner was a tenant in the ground floor of accommodation No. 27/50 Pathwari, Belanganj, Agra where he has been running an Oil Mill.
3. The Opposite Party No. 2, who is a practicing Advocate, is the landlord. He filed an application for release of the accommodation stating that the accommodation, which is in his possession is not sufficient to meet the requirement. His family consisted of his own self his wife (now dead), two major married sons namely: Mahendra Bansal and Rajesh Bansal and seven grand children. The accommodation in his possession consisted of one room, two Kothas one Varandah, one kitchen and a small open space in the first floor of the building. It was wholly insufficient for his requirement. The ground floor was occupied by the Petitioner, who was running his oil mill therein. The landlord asserted his need as bona fide.
4. The Petitioner filed a written statement denying the bona fide need. It was further stated that the landlord was having an additional accommodation in house No. 6/326 Belanganj, in the same city. In view of the provisions of Section 2(1) (c) and (d) of the Act, Act No. 13 of 1972 became inapplicable. He was running an Oil Mill. In case the release order was passed, greater hardship would be caused, to him as his entire business will come to a stand-still. He does not have any other accommodation where he can shift his business. Only four Kothas on the ground floor are in his tenancy. The entire first floor of the accommodation is occupied by the landlord.
5. The Prescribed Authority allowed the release application holding that the need of the landlord was bona fide and in case the accommodation was not released then greater hardship would be caused to him.
6. The Petitioner filed an appeal u/s 22 of the Act against the said order. It was dismissed. This Writ Petition is directed against the said order.
7. The first contention raised by Sri Prakash Gupta, learned Counsel for the Petitioner was that since the Petitioner was running on Oil Mill in the accommodation, in view of the provisions of Section 2(1) (c) & (d) of the A ct the entire Act became inapplicable. The said provision runs as follows:
2. Exemptions from operation of Act : (1) Nothing in this Act shall apply to:
(a)....
(b)....
(c) any building used or intended to be used as a factory within the meaning of the Factories Act, 1948 (Act No. LXIII of 1948) (where the plant of such factory is leased out alongwith the building); or
(d) any building used or intended to be used for any other industrial purpose (that is to say, for the purpose of manufacture, preservation or processing of any goods) of as a cinema or theatre, where the plant and apparatus installed for such purpose in the building is leased out alongwith the building;
Provided that nothing in this clause shall apply in relation to any shop or other building, situated within the precincts of the Cinema or theatre, the tenancy in respect of which has been created separately from the tenancy in respect of the cinema or theatre.
8. In order to exclude the application of the Apt the first ingredient to be proved by the Petitioner is that the plant and machinery attached to the building were also leased out to him. There is no material on record to prove it.
9. Mr. Gupta after raising the contention has fairly conceded that the Petitioner has failed to place any material on record to show that the plant and machinery were also leased out alongwith the building, though half heartedly he made reference to an agreement dated 23-5-1957 entered into between. M/s. Mahadeo Oil Mills and Daulat Ram. Subsequently M/s. Mahadeo Oil Mills transferred his tenancy rights in
