S.U. Khan, J.@mdashBoth these writ petitions have been filed by landlord against his tenants of adjoining properties. Eviction/release proceedings were initiated by landlord petitioner against his tenants Radhey Shyamrespondent No. 2 in the first writ petition and Rameshwar Prasadrespondent No. 3 in the second writ petition in the form of P.A. case No. 33 of 1981 under Section 21 of U.P. Act No. 13 of 1972, Vishnu Kant Goswami v. Radhey Shyam and Rameshwar Prasad. In the release application it was stated that the room occupied by Radhey Shyam was required by the landlord for constructing latrine. Radhey Shyam is an Advocate and using the room in dispute as his chamber. Rent of the said room is Re. 10 per month. Radhey Shaym has also constructed his own house. In the release application it was stated that the shop occupied by Ramesh Prasad at the rate of Rs. 70 per month was required by the landlord for starting business as under family partition in between him and his brothers the family business had gone in the share of other brothers of the landlord.
2. Both the tenants denied the bona fide need of the landlord. They also alleged that the tenanted accommodations were endowment properties and landlord was not owner of the said properties. Tenants also denied any partition among landlord and his brothers and stated that the theory of said partition was put forward only to create ground of release while infact it was only a sham partition.
3. Prescribed authority held that landlord was owner of the property and his need for constructing latrine was bona fide. Accordingly, Prescribed authority/Additional Civil Judge IIIrd Allahabad allowed the release application in part. Room in occupation of Radhey Shyam was released while in respect of shop in possession of Rameshwar Prasad release application was rejected. Prescribed authority further held that Radhey Shyam Advocate had constructed his own house and he could very well establish his chamber in the said house. Prescribed authority decided the case through judgment and order dated 2311987 against which both landlordpetitioner as well as Radhey Shyam tenant filed appeals. Landlord''s appeal was registered as R.C. appeal No. 151 of 1987 and the appeal of Radhey Shyam tenant was registered as R.C. appeal No. 138 of 1987. Both the appeals were heard and decided by common judgment dated 2151992 by IInd ADJ., Allahabad.
4. Appellate Court also held that property in dispute was not endowed property and landlord was owner thereof. In respect of partition among landlord and his brother appellate Court held that a sham transaction as initially original landlord Radha Krishna Goswami sought release of the disputed room/shop for his son and after dismissal of the said release application the theory of partition was set up. The plea of nonmaintainability of release application against Radhey Shyam on the ground of non maintainability of his brothers and sisters was negatived by the appellate Court and appellate Court held that release application was maintainable.
5. Landlord had opposed the application of the tenant for inspection of the property in dispute and the adjoining property in possession of the landlord. On the said objection application was rejected. Appellate Court held that objection was not bona fide. This finding of the appellate Court is quite erroneous. In case objection against inspection was not tenable then it should have been rejected. If at the earlier stage objection of the landlord was maintained then at the time of final decision it could not be said that objection of the landlord indicated his mala fides. Landlord in his objection had stated that there was no intervening wall in between his portion and the portion of his brother. Appellate Court held that as there was no partition hence landlord and his family members were using latrine, which was situate in the adjoining portion. Appellate Court further held that landlord also like his brother could construct latrine in the back portion. However, whether any space was available to the landlord in the portion in which he was residing to construct the latrine or not was not decided by the appellate Court. Even if partition is ignored, the two brothers along with their families are entitled to reside either separately or in separate portions of the same house. Having a common latrine is extremely inconvenient. Even if families of two brothers are residing jointly, need for two latrines cannot be said to be not bona fide.
6. Learned Counsel for landlord has vehemently argued that there is no other space available to the landlord to construct the latrine. Learned Counsel for tenant Radhey Shyam has not been able to point out any suitable alternative space available to the landlord to construct the latrine conveniently. It is too much to ask a landlord to construct latrine in the sehan which is already quite small or in the passage/gallery. The word used under Section 21 of the Act is ''need'' and not ''dire need''. Neither the tenant nor the Court can suggest to the landlord other means to satisfy his need so that tenant may continue in possession unless those means are equally viable. Supreme Court in Sarla Ahuja v. United India Insurance Co., AIR 1999 SC 100, has held that it is unnecessary to make an endeavor as to how else the landlord could have adjusted himself (para 14). The Supreme Court in Siddalingama v. M. Shenoy, AIR 2001 SC 2896, has held that the Rent Control Acts are basically meant for the benefit of the tenant and provision of release on the ground of bona fide need is the only provision which treats the landlord with some sympathy.
7. As far as tenant Radhey Shyam is concerned he has constructed his house and normally Advocates have their chambers in their houses. Lower appellate Court has held that Radhey Shyam was practicing on income tax and sales tax side and property in dispute was situate in the heart of Commercial Centre of Allahabad city hence he was justified in keeping a branch of his office in the accommodation in dispute for the facility of traders. To take care of convenience or luxury of the tenant is not the policy behind comparison of hardships. Radhey Shyam has constructed his own house and has also got a chamber there. This fact is heavily loaded against him while comparing the hardship of the tenant. The Prescribed authority had rightly allowed the release application against Radhey Shyam. Appellate Court committed an error of law in reversing the said finding and judgment. The appellate Court had not at all appreciated the correct meaning and import of bona fide need and comparative hardship. The approach of the lower appellate Court was to make all efforts to protect dispossession of the tenant. In the matter of release on the ground of bona fide need of the landlord such approach is not warranted by law.
8. As far as the case of the landlord against Rameshwar Prasad is concerned, I do not find any error in the impugned judgments and orders passed by both the Courts below. Family business of the landlord is being carried out from another shop. Such partition in which one of the brothers is completely deprived of his share in the family business creates a doubt. The Supreme Court in S.S.S.M. Chaudhary v. G. A. Bukate, AIR 1977 SC 998, has held that normally tenant can not question partition among landlords however in case tenancy is covered by Rent Control Act then tenant can assert that this partition was brought into existence only to create ground of eviction. Both the Courts below have doubted the partition on this ground. I do not find any error in the said findings. In case landlord petitioner had set up the need for independent business then the matter would have been different. It has been held by the Supreme Court Sushila v. A.D.J., AIR 2003 SC 780, that every landlord and every adult family member of the landlord is entitled to have separate independent business and no landlord or any of his family members can be compelled to participate in the family business or joint business. However, no such case was set up by the landlord.
9. Accordingly, first writ petition i.e. Writ petition No. 29848 of 1992 against Radhey Shyam is allowed and the second writ petition i.e. Writ petition No. 32386 of 1992 against Rameshwar Prasad is dismissed. Consequently, Judgment of the appellate Court is set aside in part and judgment of the Prescribed Authority is restored in toto. The result is that release application of the landlord against Radhey Shaym stands allowed and release application against Rameshwar Prasad stands dismissed.
10. I have held in Khursheeda v. A.D.J., Allahabad, 2004(2) JCLR 452 (All) : 2004 (2) A.R.C. 64 and H.M. Kitchlu v. A.D.J., 2004 (2) A.R.C. 652, that while granting relief against eviction to the tenant in respect of building covered by Rent Control Act or maintaining the said relief already granted by the Courts below, writ Court is entitled to enhance the rent to a reasonable extent. Appellate Court has recorded the finding that the building in dispute is situate in the heart of the commercial area of Allahabad. In view of this rent of Rs. 70/ per month which is being paid by Rameshwar Prasad is extremely inadequate. Virtually it is no rent. Accordingly, it is directed that with effect from January 2006 onward Rameshwar Prasad shall pay rent to the landlordpetitioner at the rate of Rs. 750/ per month.
11. Radhey Shyam is granted six months'' time to vacate provided that:
(1) Within one month from today he files an undertaking before the Prescribed Authority to the effect that on or before the expiry of aforesaid period of six months he will willingly vacate and handover possession of the property in dispute to the landlordrespondent.
(2) For this period of six months which has been granted to Radhey Shyam to vacate he is required to pay Rs. 3,000/ (at the rate of Rs. 500/ per month) as damages for use and occupation. This amount shall also be deposited within one month before the Prescribed Authority and shall immediately be paid to the landlord respondent.
In case of default in compliance of any of these conditions Radhey Shyam shall be evicted through process of Court after one month.
It is further directed that in case undertaking is not filed or Rs. 3000/ are not deposited within one month then tenant Radhey Shyam shall be liable to pay damages at the rate of Rs. 1,000/ per month since after one month till the date of actual vacation.
Similarly, if after filing the aforesaid undertaking and depositing Rs. 3000/ the accommodation in dispute is not vacated in six months then damages for use and occupation shall be payable at the rate of Rs. 1000/ per month since after six months till actual vacation.
Petition No. 29848 allowed and 32386 dismissed.
