WPMS/144/2010 of TOTA RAM PANTHARI Vs RATNAMBAR DATT JOSHI and OTHERS

HIGH COURT OF UTTARAKHAND AT NAINITAL

(1)Writ Petition No. 144 of 2010 (M/S)

Tota Ram Panthari.

……..Petitioner

Versus

Ratnambar Dutt Joshi And others.

…….Respondents

AND

(2)Writ Petition No. 145 of 2010 (M/S)

Mohd. Yameen.

……..Petitioner

Versus

Ratnambar Dutt Joshi And others. …….Respondents

AND

(3)Writ Petition No. 147 of 2010 (M/S)Suman Naithani. ……..Petitioner

Versus

Ratnambar Dutt Joshi And others. …….Respondents

AND

(4)Writ Petition No. 148 of 2010 (M/S)

Baba Nihal Singh. ……..Petitioner

Versus

Ratnambar Dutt Joshi And others.

…….Respondents

Mr. Sudhir Kumar, Advocate for the petitioners, Mr. B.P. Nautiyal, Advocate for respondents.

Dated: September 3, 2010

Hon’ble V.K. Bist, J.

These petitions have been filed by thepetitioners challenging the judgment and order dated24.04.2007 passed by Prescribed Authority, Kotdwar,District-Pauri Garhwal in Rent Case No. 11 of 2005Ratnamber Dutt Joshi and others vs. Abdul Raseed(Deceased) and others and in connected cases andjudgment and order dated 08.01.2010 passed by theDistrict Judge, Pauri in Misc. Rent Appeal No. 16 of 2007and in the connected appeals.

2.Since in all these writ petitions, commonquestion of law is involved to be decided by this Courttherefore, all these petitions have been consolidated andare being disposed of by common judgment. Writpetition no. 144 of 2010 (M/S) shall be the leading case.

3.Brief facts of the case, which emerge out fromthe record of writ petition no. 144 of 2010 (M/S), are thatpetitioner and one Digambar Prasad Kainthola werepartners in the firm known as M/s Kainthola Medicos,since its inception in the year 1984. The firm is the tenantin the shop situated at Badrinath Marg, Kotdwar, DistrictPauri Garhwal since 1984. It is stated that originallypredecessor of respondents, namely, Pitambar Dutt Joshiwas the landlord of the shop in dispute and after hisdeath, his widow Smt. Kalpeshwari Devi and respondentsbecame joint owner-landlords of the shop in dispute. AsSmt. Kalpeshwari Devi also died, now the respondentshave become joint owners of the shop in dispute. At thetime of beginning of tenancy, Smt. Kalpeshwari Devi wasthe owner of the shop in dispute. As the partnership hasbeen dissolved in the year 2007, the tenancy of the shophas fallen to the share of the petitioner and since then thepetitioner is doing his business of medical. It is averred inthe petition that the shop in dispute is part of bigbuilding, having eight shops on the ground floor, totenement on the first floor and one tenement on secondfloor. All the shops on the ground floor were let out todifferent tenants and two tenements on the floors abovethe shops were also let out. It is further stated thatlateron, one shop fell vacant and remained vacant sincelong and one tenement in the tenancy of Ramesh Dhyani,Advocate on the first floor was in occupation of

respondent nos. 1 to 3 at the time of filing releaseapplication. Only one room on the first floor was in thetenancy of Arun Parmar and rest of the first floor as wellas second floor was in occupation of respondent nos. 1 to 3.As the respondent no.3 started causing damage to theshop in dispute, the petitioner instituted Suit No. 32 of1996 for injunction, restraining respondent no.3 fromcausing any damage to the shop in question. This suit wasdecreed on 20.12.1996 by the Court of Civil Judge (Jr.Div.), Kotdwar.

4.It is stated in the petition that respondent nos.1 to 3-landlords filed application for release of the shop indispute under Clause (a) & (b) of sub-section (1) ofSection 21 of the U.P. Urban Building (Regulation ofLetting Rent and Eviction) Act, 1972 (hereinafter referredto as the Act) before the Prescribed Authority, Kotdwaragainst the petitioner, alleging that the shop in dispute isin dilapidated condition and it requires reconstructionand the shop in dispute is also required for their personaloccupation. The application was registered as Rent CaseNo. 16 of 2005 Ratnamber Dutt Joshi and others vs.Digambar Prasad Kainthola and others.

5.The landlords/respondent nos. 1 to 3 also filedrelease applications against other tenants (Rent Case No.12 of 2005 Ratnamber Dutt Joshi and others vs. SumanKant and others, Case No. 13 of 2005 Ratnamber DuttJoshi and others vs. Jagdish Prasad and others, Case No.14 of 2005 Ratnamber Dutt Joshi and others vs. Mohd.Yameen and others, Case No. 15 of 2005 Ratnamber DuttJoshi and others vs. Baba Nihal Singh and Case No. 17 of2005 Ratnamber Dutt Joshi and others vs. Balwant

Singh and others) also under Clauses (a) and (b) of sub-section (1) of Section 21 of the Act before the PrescribedAuthority, Kotdwar with the identical facts andallegations. All the cases were consolidated and were triedand decided together by the Prescribed Authority.

6.The applications were contested and writtenstatements were filed alleging that the respondent nos. 1to 3 have no need of the shops in dispute and the shops indispute are not in dilapidated condition. In order to provetheir version, the landlords filed affidavits of RatnamberJoshi, Satish Chandra, Praveen Joshi, Smt. PoornimaJoshi, Sandeep Naithani, Jyotsana Dhyani, Anil Kumar,rejoinder affidavit of Ratnamber Joshi and indocumentary evidence they filed tax assessment register,copies of applications dated 07.06.1990 and 07.07.1990which were moved by Praveen Joshi to S.D.M., Kotdwar,report of Station House Officer, Kotdwar dated28.07.1990, notice u/s 263 of Municipal Act issued byMunicipal Board, notices dated 11.12.1991 and 27.09.1997given to tenants and receipt, notice dated 16.07.1999issued by Municipal Board u/s 263 of Municipal Act,notice dated 20.09.2004 given to tenants, receipt ofregistry, inspection report of Engineer Chamoli Associate ,photographs, map and estimate prepared by ChamoliAssociate. In reply, the tenants filed affidavits of Mohd.Aabid, Suman Kant, Jagdish Prasad, Mohd. Yameen,Baba Nihal Singh, Digamber Prasad, Balwant SinghGusain, Rajeev Kumar Verma, Harendra Singh Chauhan,Virendra Dutt Tewari, Shashank Shekhar Sharma andSmt. Jyotsna Dhyani.7.After the evidence was concluded, thePrescribed Authority vide her common judgment andorder dated 24.04.2007 allowed the applications filedunder Section 21 (1) of the Act and released the shops inquestion in favour of the landlords/respondent nos. 1 to 3.The petitioners were directed to vacate the shops inquestion within two months and further to hand overpossession thereof to the landlords. Being aggrieved bythe judgment dated 24.04.2007 the tenants/petitionerspreferred appeals before the District Judge, PauriGarhwal, which were registered as Misc. Civil (Rent)Appeal No(s). 16 of 2007, 18 of 2007, 19 of 2007, 20 of2007 and 21 of 2007. The landlords/respondent nos. 1 to 3 also filed cross objections against the part of thejudgment whereby their application under Clause (b) ofsub-section (1) of Section 21 of the Act was rejected. Thelearned District Judge also did not find favour of thetenants and dismissed the appeals preferred by them butallowed the cross objections of the landlords/respondentnos. 1 to 3. Writ Petition No. 144 of 2010 (M/S) has beenfiled against the judgment and order dated 24.04.2007passed by Prescribed Authority, Kotdwar in Rent Case No. 16 of 2005 and judgment and order dated 08.01.2010passed by District Judge, Pauri in Rent Appeal no. 21 of2007. Writ Petition No. 145 of 2010 (M/S) has been filedagainst the judgment and order dated 24.04.2007 passedby Prescribed Authority, Kotdwar in Rent Case No. 14 of2005 and judgment and order dated 08.01.2010 passedby District Judge, Pauri in Rent Appeal no. 19 of 2007.Writ Petition No. 147 of 2010 (M/S) has been filed againstthe judgment and order dated 24.04.2007 passed byPrescribed Authority, Kotdwar in Rent Case No. 13 of2005 and judgment and order dated 08.01.2010 passed

by District Judge, Pauri in Rent Appeal no. 18 of 2007.Similarly, Writ Petition No. 148 of 2010 (M/S) has beenfiled against the judgment and order dated 24.04.2007passed by Prescribed Authority, Kotdwar in Rent Case No. 15 of 2005 and judgment and order dated 08.01.2010passed by District Judge, Pauri in Rent Appeal no. 20 of2007. All these four writ petitions were clubbed and arebeing decided by common judgment.

8.In their release application no. 11/2005, thelandlords/ respondent nos. 1 to 3 came up with the casethat the landlords/applicants have four storeyedbuilding situated within municipal area in Ward No. 22,House No. 6 which is about 100 years old and is indilapidated condition. Mother of the applicants Smt.Kalpeshwari Devi was residing in said building but due todecrepitude condition of the premises in question, she leftthe building. The applicants instituted as many as eightcivil suits for release of the premises in question. In therelease application, it is stated that the applicant no.1,after his retirement, is jobless. He has two marrieddaughters and one son. His son is unemployed afterpassing B.Com degree. Applicant no.2, after being retired,is also unemployed who has three daughters and sonaged about 11 years. The applicant no. 3 shall be retired inthe year 2007. The applicant no. 3 has son aged about 17years who is also unemployed after intermediateexamination. All the applicants are residing separately onrental basis, thus the applicants are in genuine need of theentire building for their residence as well as forcommercial purposes. The applicants, after demolishingthe premises in question, intend to construct acommercial-cum-residential building. Need of theapplicants/respondents is genuine and bona-fide, whilethe petitioner is well settled and is not using theshop/room in his possession. The petitioner is not in needof the premises in his possession. It is further stated thatin the city of Kotdwar and to its surroundings, severalbusiness and commercial complexes have beenconstructed and opened; hundreds of such complexes arevacant for purchase as well as for hiring on rent and thepetitioner can do needful according to his requirement.The petitioner will not face comparative hardship invacating the premises in his possession. The defendantno.1 Abdul Raseed filed his written statement with theaverment that the application filed by the respondentsunder Section 17 of the Act is not maintainable. Thelandlords/ applicants are not in need of theaccommodation in question, as applicant no. 1 was agedabout 75 years who resides in Delhi with his familymembers. His daughters are marries and his son has beensettled at Delhi. The landlords/applicants have notmentioned in their release application that for whosefamily or for which applicant, the accommodation isrequired. The applicant no.2 is not unemployed as he wasretired in the year 1990 and is living at Dehradun in hisown house and his family has been settled there. Theapplicant no.3 is in Govt. job, his wife is Vice Principaland they had their own house. One shop is vacant in thepremises. The landlords/applicants have no need of theaccommodation in dispute. The petitioner/tenant isrunning hair-cutting salon in the accommodation sincelong and he had no other source of income. Thepetitioner/tenant has earned goodwill at this place. If theshop is vacated, the petitioner/tenant will sufferirreparable loss. The property is on Nazool land, which

requires proper renewal. The applicants/landlords didnothing for ownership of the property in their namesthrough freehold scheme as directed by the Governmentin the year 1992. As the property has not been renewed,now ownership rights vests on the Government only. Theapplicants/landlords have no locus standi so sue. Inwritten statement, it was also stated that there involveserious question of title and the title cannot be decidedsummarily. The Trial Court has no jurisdiction to try thesuit. In their replica, the landlords/applicants stated thatin respect of alleged PATTA the landlords are paying leaserent to the Municipal Board, Kotdwar and their rights ofownership are not, at all, changed in any manner. Theapplicants are the owner/landlords of the property indispute and there are relation of landlord and tenants inbetween the parties. The Trial Court is fully empowered tohear and decide the dispute. They further stated that thefreehold policy is optional one and the holder of Nazoolland cannot be compelled to indulge in freeholdproceeding.

9. In Rent Case No(s). 12/2005, 13/2005 14/2005, 15/2005, 16/2005 and 17/2005, filed by theapplicants/respondents, the applicants came with theidentical averments as was averred in Rent Case no.11/2005 stating therein that their need is bona fide andgenuine. Rest of the averments made in the Rent Case No.11/2005 was reiterated. In reply to the averments madeby the landlords/applicants, rest of the tenants haveaverred that they are doing their respective business inthe accommodation in dispute since long and they haveno other source of income. They have earned goodwill intheir business at the place of the building in dispute.

Further, if the shops in their possession are vacated thetenants will suffer irreparable loss and hardship.

10.I have heard Mr. Sudhir Kumar, the learnedcounsel for the petitioners, Mr. B.P. Nautiyal, the learnedcounsel for the respondents and perused the entirematerial available on record and have also gone throughthe law cited on various issues.

11.It is pertinent to mention here that so far thequestions, as to whether is there any relation as landlordsand tenants in between the parties and whetherprovisions of U.P. Act no. XIII of 1972 are attracted in theproperty in suit are concerned, these questions are notpressed by the petitioners. Now three questions areremained to be determined by this Court. First, whetherthe property in dispute is in dilapidated conditionsecondly, whether need of the landlords is genuine andbona fide and thirdly, whether comparative hardship ofpetitioners is grater than the landlords.

12.Mr. Sudhir Kumar, the learned counsel for thepetitioners first of all assailed the impugned judgmentand orders on the ground that impugned orders areperverse, against the law and facts on record and both theCourts below failed to appreciate that motive of the Act isto protect the interests of the tenants, therefore eviction ofthe tenants cannot be directed on flimsy grounds, as theCourts below utterly failed to consider that applicant no. 1has retired more than 20 years ago and at the time offiling release application he was more than 75 years of ageand his 32 years’ son has been shown as unemployed.Similarly, the applicant no. 2 has been retired 15 years ago

at the time of moving release application and he wassettled at Dehradun. Both the Courts below have failed toconsider that the applicant no.3 had not retired at thetime of moving release application and was in regularservice. However, he contended that the son of applicantno.1 is an accountant and he has been settled at Delhi andthere is no evidence as to whether he was ever interestedin settling at Kotdwar, leaving Delhi. He furthercontended that both the Courts below have ignored toenquire into the genuineness of the alleged need ofrespondent nos. 1 to 3 and to find out the extent of thespace required by them to satisfy their alleged need. Heargued that undisputedly, the applicants had one vacantshop in their possession for long time and had therebeen any need of the applicants, they could have occupiedthe same for doing business which itself illustrate thatneed of the applicants was not bona fide and genuine. Hevehemently contended that after the decision ofPrescribed Authority, Shri Suman Kant and Shri BalwantSingh have vacated the shops in their tenancy and thesetwo shops also came in the possession of the applicants.He argued that in addition to it, Shri Arun Parmar alsovacated the area in his tenancy on the first floor and thisportion also came in occupation of the applicants. Heargued that, conclusively the applicants are in occupationof three shops as well as entire first and second floor ofthe premises in dispute, therefore the need of theapplicants, if any, stands fully satisfied.

13.Learned counsel for the petitioners furthersubmitted that the landlords have not given anyparticulars of their alleged requirement in their releaseapplication. It has not been stated as to where each of the

landlords had been living and what they and their sonshad been doing, before the release applications were filed;what is the source of their income and the quantumthereof and whether the same is sufficient for their livingor not. He further submitted that the landlords have giventheir addresses as Badrinath Marg, Kotdwar in theirrelease application and have not given their correctaddresses for no reasons. He argued that it is sufficientlyproved on record that the applicant no.1 is living at Delhiwith his family, the applicant no.2 is living at Dehradunwith his family and applicant no.3 was gainfully employedin Garhwal Mandal Vikas Nigam and his wife was alsoemployed as Principal in Govt. College. He submitted thatthe need of applicant no.1 for the business in the premisesin question is not, at all, established and same is theposition with applicant no.2. No reasons have been givenas to why no business was started in the shop in theoccupation of the landlords. He submitted that thelandlords are in possession of three vacant shops in whichthey can carry out their business. Their immediate needsare totally satisfied. He submitted that the landlords havenowhere stated about the nature of the business, theywant to start, and the extent of space that may be requiredfor the said business, thus the landlord have utterly failedto prove their need and the extent of the premisesrequired for their alleged need. He argued that the Courtsbelow have also not considered these factors, which arerequired to be considered and non-consideration thereofhas vitiated the decisions of both the Courts below. Thecounsel for the petitioners relied on the decision ofHon’ble Supreme Court in the case of Ansuyaben KantilalBhatt vs. Rashiklal Manilal Shah and another, reported inAIR 1997 SC- 2510, the decision of Allahabad High court

in the case of Jai Prakash Rastogi vs. 1[st ]Addl. DistrictJudge, Bulandshar and others, reported in 2000(2) ARC-569 and decision of Allahabad High Court in the case of S.B. Bhardwaj and others vs. XIth Addl. District JudgeKanpur and others, reported in 2002(2) ARC-244.

14.Counsel for the petitioners also contendedthat the Appellate Court has committed manifest error oflaw in recording findings that the building in dispute is indilapidated condition and in accepting the report of theEngineer, examined by applicants, because no evidence isplaced to prove that the building is hundred years oldconstruction. He argued that the finding recorded by boththe Courts below on the issue of comparative hardship iswholly against the law and facts on record. Mr. SudhirKumar, the learned counsel for the petitioners argued thatrelease application under Section 21 (1) (a) and (b) of theAct is not maintainable. He vehemently argued that theAppellate Court erroneously allowed the compositeapplication for release of the shop under both the Clauses (a) and (b) of Section (1) of Section 21 of the Act. Asunder Clause (a), the landlord can get the release of thepremises on proof of his bona-fide requirementirrespective of whether the building is in dilapidatedcondition or not while under Clause (b), the landlord canget the release of the premises on proof of the buildingbeing in dilapidated condition irrespective of whether thelandlord has any need of the same or not. Under Clause(b), the tenant has right of re-entry but the tenant hasno such right under Clause (a). The nature of proof forrelease of the premises is also totally and altogetherdifferent under both the Clauses. He argued that Order IIRule 3 of the Code of Civil Procedure provides that morethan one cause of action can be joined in suit, whileOrder I Rule 3(b) of the Code provides that severaldefendants may be joined in the same suit if commonquestion of law and facts arise. Both these rules, if readtogether, provide that only such cause of action can bejoined in suit when common question of law and factsarise which can be decided on the same evidence. Placingreliance on the decision of Allahabad High court in thecase of Dwarike Prasad vs. Kishan Lal and others,reported in AIR 1986 Allahabad-174 and in the case ofShibboo vs. 1[st ]Addl. District Judge, Ghaziabad andanother, reported in 1983 (1) ARC-33, Mr. Sudhir Kumar,Advocate submitted that composite application for releaseunder Clauses (a) and (b) of sub-Section (1) of Section 21of the Act itself being not legally maintainable, is liable tobe dismissed.

15.Learned counsel for the petitioners furthersubmitted that it is required for the landlord to seek reliefunder Clause (a) of sub-Section (1) of Section 21 of the Actto establish by definite and positive averments stating thenature of need and its accrual and how it is necessary forthe landlord for his comfortable living. He argued that itis further to be proved by the landlord regarding theextent of the accommodation required for satisfying hisalleged need. In this regard he placed reliance upon thedecisions of Hon’ble Supreme Court in the case of PhirozeBamanji Desai vs. Chandrakant M Patel, reported in AIR1974 SC-1059 and Deena Nath vs. Pooran Lal, reported in(2001) 5 S.C.C.-705.

16.On the other hand, Mr. B.P. Nautiyal, thelearned counsel for the applicants has submitted that so

far as the bona-fide need of the applicants/landlords isconcerned, there is concurrent finding of facts of both theCourts below. He contended that scope of writ jurisdictionunder Article 226 of the Constitution of India is limitedand while exercising this jurisdiction, the High Courtcannot sit like Court of appeal, thus it cannot re-appreciate or revaluate the evidence so as to arrive at adifferent conclusion. Only perversity in the impugnedorder can be judged as has been observed in the ApexCourt in Surya Dev Rai vs. Ramchandra Rai, reported in2003 SC page 675, 2003 S.C.W.-3872, (2004) 3 SCC-682 and 2004 S.C.W.4241. preliminary objection has alsobeen raised to the effect that one of the writ petitions hasbeen filed by petitioner-Tota Ram Panthari who wasneither tenant nor party before the Prescribed Authorityor Appellate Authority. About the status of Mr. Tota Ram,there is no whisper either in the pleadings of the partiesor in the orders passed by the Trial Court or AppellateCourt, therefore, this petitioner has no locus standi to filewrit petition as the alleged partnership is not pleaded bythe tenant Shri Digambar Singh Kainthola in PA Case No.16 of 2005 and Rent Control Appeal No. 21 of 2007, assuch, the Writ Petition No. 144 of 2010 (M/S), which isfiled by an outsider to the proceedings and who had neverbeen there as tenant of the landlords in the disputedshops, is not legally maintainable and is liable to bedismissed on this ground alone.

17.So far on the merits of the case, the learnedcounsel for the applicants/landlords Mr. B.P. Nautiyalsubmitted that in view of provision contained in Section 21 (1) of the Act itself, the applications are legallymaintainable on both the grounds or any of the grounds

exists. For proper appreciation, Section 21 (1), 21 (1) (a)and 21 (1) (b) of the Act are reproduced as below:-

“21. Proceedings for release ofbuilding under occupation oftenant-

(1)The prescribed authority may, on anapplication of the landlord in that behalf,order the eviction of tenant from thebuilding under tenancy or any specifiedpart thereof if it is satisfied that any of thefollowing grounds exists namely-

(a)that the building is bona fide requiredeither in its existing form or afterdemolition and new construction by thelandlord for occupation by himself or anymember of his family, or any person forwhose benefit it is held by him, either forresidential purposes or for purposes ofany profession, trade or calling, or wherethe landlord is the trustee of publiccharitable trust, for the objects of thetrust;

(b)that the building is in dilapidatecondition and is required for purposes ofdemolition and new construction.”

18.So far the bona-fide need of the landlords isconcerned, learned counsel for the landlords hassubmitted that there is concurrent finding of fact of boththe Courts below on this question. The learned PrescribedAuthority after considering the material evidence onrecord while passing the judgment and order dated24.04.2007 has given specific findings on the bona-fideneed of the landlords and has observed that the tenantcannot prevent the landlord to start business, even afterretirement from any Govt. job. Further the landlords arein need of property in question for self-business as well asfor the business of their sons. The tenants cannotchallenge the need of landlords demanding thereby as forwhose employment the tenanted shops are required either

for the landlords or for their children. He furthercontended that the learned Prescribed Authority whilegiving findings on the bona-fide need of the landlords hasfurther observed that landlord no. 1 is without job afterhis retirement and his son, who is having B. Com. Degree,is also unemployed; landlord no. 2, after his retirement iswithout any job and son of landlord no. 3 is also jobless.The landlords/applicants have no other property atKotdwar except the disputed property, on account ofwhich the applicants are living separately on rental basis.The applicants’ need has been increased gradual onaccount of increase of family members. The landlords andtheir sons have to engage themselves separately in job-oriented employment and they have to fulfill theirresidential requirements. The landlords intend todemolish the dilapidated structure and want to constructa residential-cum-commercial house in its place. Hesubmitted that the tenants did not endeavour to searchalternate shops after applications for release were filed.The tenant Jagdish Prasad has started business in front ofdisputed property after taking the same on rent fromMunicipal Board, Kotdwar. Jagdish Prasad has alsoconstructed huge commercial complex and shops in frontof Tehsil heading to Badrinath way and he isselling/giving on rent these shops. Besides it, one largeshop (100 feet in length/depth) is ready in the sameBadrinath way, near TATA MARSARI, adjacent to Dr.Bisht, which belongs to the tenant Jagdish Prasad andabove it double storey building has been constructed.On the way heading to Badrinath, near the bridge, thetenant Baba Nihal Singh has constructed businesscomplex measuring 100 feet X 100 feet on his own landand small portion of which is sufficient for his business.He is also having huge double storeyed building at thesame site, which was earlier in the tenancy of ForestCorporation (at present is vacant) and the shop of armorycan smoothly be run there. The tenant Digambar Prasadhas established his business, after purchasing thehouse/shop of Dr. Benerji, situated adjacent to theproperty in dispute, in the main way heading toBadrinath. The tenant Abdul Raseed has his own houseon the main Suman Road, Kotdwar and there is enoughspace, therefore, shop of barber can easily be run there.Mr. Arun Parmar has his own house at Aamparao,Jaunpur, Kotdwar and he is running typing institutethere. Mr. Sumankant is having commercial building atDegree College Road and his shop can swiftly run there.Mr. Balwant Singh is having house at the commercialsite situated at Jaunpur, Kotdwar and, in case, if hedesires to start business, he can do so there. The tenantMohd. Yamin has owned shop at Garighat, Kotdwar andhe is running well established Dry-cleaning and laundryshop. Counsel for the landlords has vehementlycontended that the landlords can live and do theirbusiness simultaneously in the building in question,therefore, their need is purely bona-fide and genuine. ThePrescribed Authority considered the comparativehardship and found that the tenants are having suitableand sufficient alternative accommodations with them,thus they will not suffer any hardship on release of theshops under their tenancy. He submitted that, in case, ifthe tenant has alternate site for business, comparativehardship should be determined against him. Hesubmitted that finding of the Trial Court is confirmed bythe Appellate Court and the Appellate Court concurredwith the findings of Trial Court.

19.So far the question about the building being indilapidated condition is concerned, counsel for thepetitioners Mr. Sudhir Kumar has contended that thePrescribed Authority has rejected the application of thelandlords on this score holding that the premises is not indilapidated condition and the landlords cannot takebenefit of their own wrongful acts. He submitted that thelandlords did not file any appeal against the said decision,but preferred cross objection against the said part of thejudgment, first of all, before the Appellate Court in theappeals filed by the tenant against the decision of thePrescribed Authority, about their bona fide need. Hecontended that provisions of cross appeal are notapplicable to the proceedings under the Act. Hecontended that the findings of the Appellate Court that,under the Act, the cross objections are permissible andlegally maintainable, is perverse and cannot be sustainedin the eyes of law. It is submitted that cross-objection arefiled under sub-Rule (1) of Rule 22 of Order XLI of theCode and can be maintainable only against finding andnot against decree, as the provision contained thereinspecifically provides that respondent can only challengea finding in the decree and cannot challenge the decreeitself under this provision. The cross-objections of thelandlords were not maintainable and the Lower AppellateCourt committed mistake of law in entertaining thesame. He placed reliance on the decision of HimachalPradesh High Court in the case of Lata vs. United IndiaInsurance Co. Ltd. And others, reported in 2005 (2)T.A.C.-902. He further argued that even assuming thatthe cross-objections of the landlords were legallymaintainable, even then the order of Lower AppellateCourt on the question of dilapidated condition of thebuilding in question, cannot be sustained in law. It issubmitted that the word ‘dilapidated’ has not beendefined in the Act. The literal meaning of the word‘dilapidated’ as given in the dictionaries is ‘beyondrepairs’, ‘decayed’, ‘to bring into partial ruin due toneglect or misuse’. Reliance was placed on the judgmentof Allahabad High Court in the case of Smt. Chando Deviand others vs. 3[rd ]Addl. District Judge, Mathura andothers, reported in 1984 (1) ARC-10, Ram Kumar vs. 3[rd ]Addl. District Judge, Faizabad and others, reported in1986 (2) ARC-275 with the arguments that in the light ofthese decisions, it has to be seen whether the building hassuffered natural decay or has been damaged to cause theeviction of the tenants from the shops in dispute. It issubmitted that none of the Courts below got the premisesin dispute inspected, either personally or through acommissioner. The parties have produced opinion ofexperts, but the Lower Appellate Court has declined toaccept the report of the expert submitted by the tenants,and has preferred to believe the report of the expert of thelandlords, only on the ground of better qualificationwithout comparing the two reports and to find out whichof them should be given preference over the other.

20.Mr. B.P. Nautiyal, Advocate has argued thatthe learned Appellate Court, while considering the case ofthe landlords regarding dilapidated condition of thebuilding, after examining the pleadings of the parties,material evidence led by the parties and also propositionof law laid down by Hon’ble Aped Court as well as HighCourt, has concluded that the building in question is indilapidated condition and it requires demolition. Hesubmitted that the Appellate Court considered the notices

issued, under Section 263 of Municipality Act, by theMunicipal Board, Kotdwar as well as the order passed bythe District Magistrate directing one of the tenants, Mr.Nihal Singh, to shift his business to another place. Hesubmitted that the Appellate Court has also taken intoaccount the report of expert Engineer having degree ofAMIE Civil, who certified the dilapidated condition of thebuilding with the further report for demolition of thesame. In this regard, learned counsel for the landlordsplaced reliance on the judgment of this Court in PadamSingh vs. D.J. Almora and ors., reported in 2008 (UAD-423).

21.In reply to the objection raised by thepetitioners’ counsel, that the cross objection filed by thelandlords in the appeal was not maintainable (reliancewas placed on the judgment rendered in 2005 (II) TAC-902), the learned counsel for the landlords has stated thatthe argument is misconceived and the citation relied uponby the counsel for the petitioners does not apply on thefacts of the present case, as the case in hand is under theprovision of U.P. Act no. XIII of 1972, whereas the citationrelied on by the counsel for the petitioners is under theMotor Vehicles Act, 1988 and the Motor Vehicle Rulesframed by the State of Himanchal Pradesh. He concludedthat the subject matter of instant case is covered by theprovisions of U.P. Act No. XIII of 1972 and the powerunder Section 22 read with Section 10 U.P. Act no. XIII of1972 are same, which vest with the Appellate Authorityunder Order 41 Rule 22 and 33 C.P.C., therefore, theAppellate Authority has jurisdiction to entertain crossobjections. He further submitted that the AppellateAuthority has dealt with the question regarding

maintainability of cross objection filed by the landlords inthe rent control appeal filed by the tenants and afterconsidering rival contention of both the parties andrelevant provision of the Act and Order 41 Rule 22 and 33 C.P.C. and also the law laid down on the maintainabilityof cross objection under the Act, rejected the objection ofthe tenants and held that cross objection aremaintainable. In this regard learned counsel for thelandlords placed reliance on (1983) ARC-150 and 1996 (2)ARC-672.

22.So far the argument of learned counsel for thetenants that there is no need of the landlords for theproperty in dispute, as the landlords are only threemembers but eight shops have been released by theCourts below in their favour, Mr. B.P. Nautiyal, Advocatehas replied that both the Courts below have consideredneed of six unemployed male members and found theirneed bona-fide and genuine for the disputed shops,therefore, contrary arguments advanced by the counselfor the petitioners is misconceived and against thematerial evidence on record. Learned counsel for thelandlords put emphasis on the judgment of Apex Courtrendered in 1995 (SC) 576, 2009 (1) ARC-715 and 2009(1) ARC-302.

23.I have gone through the law cited by thelearned counsel for the parties and perused the judgmentsof the Courts below. Both the Courts below, whileconsidering bona-fide need of the landlords for theproperty in dispute, have given concurrent findings. I amalso of the considered view that the tenant cannot preventthe landlord to start business at his choice place, even

after retirement from any Govt. job; the landlords are inneed of property in question for self-business as well asfor the business of their sons. The landlord no. 1 is joblessafter his retirement and his son who is having B. Com.degree is also unemployed; landlord no. 2, after hisretirement is without any job and son of landlord no. 3 isalso jobless. The landlords/applicants have no otherproperty at Kotdwar, except the disputed property, andthe landlords are living separately on rent. The applicants’need has been increased gradually due to increase offamily members. The landlords and their sons have toengage themselves separately in job-orientedemployment and they have to fulfill their requirement forresidential purpose. The landlords intend to demolish thedilapidated structure and want to construct residential-cum-commercial house in its place. The tenants in theiraffidavits have not denied that they have their ownproperties in Kotdwar city. As has been emerge out fromthe record, that the tenant Jagdish Prasad has startedbusiness in front of disputed property, after taking thesame on rent from Municipal Board, Kotdwar. TenantJagdish Prasad has also constructed huge commercialcomplex and shops in front of Tehsil heading to Badrinathway and he is selling/giving on rent these shops. Besidesit, one large shop (100 feet in length/depth) is ready inthe same Badrinath way near TATA MARSARI adjacent toDr. Bisht, which belongs to the tenant Jagdish Prasad andabove it double storey building has been constructed.On the way heading to Badrinath near the bridge thetenant Baba Nihal Singh has constructed businesscomplex measuring 100 feet X 100 feet on his own landand small portion of which is sufficient for his business.He is also having huge double storeyed building at thesame site which was earlier in the tenancy of ForestCorporation and at present is vacant and the shop ofarmory can smoothly be run. The tenant Digambar Prasadhas established his business, after purchasing the house/shop of Dr. Benerji situated adjacent to the property indispute in the main way heading to Badrinath. The tenantAbdul Raseed has his own house on the main SumanRoad, Kotdwar and there is enough space therefore, shopof barber can easily be run there. Arun Parmar has hisown house at Aamparao, Jaunpur, Kotdwar and he isrunning typing institute there. Mr. Sumankant is havingcommercial building at Degree College Road and his shopcan run swiftly there. Mr. Balwant Singh is having houseat the commercial site situated at Jaunpur, Kotdwar and,in case, if he desires to start business, he can do so there.The tenant Mohd. Yamin has his own shop at Garighat,Kotdwar and he is running well-established Dry-cleaning and laundry shop. The landlords intend to liveand do their business simultaneously in the building inquestion, therefore, their need is bona-fide and genuine.The Prescribed Authority considered the comparativehardship and found that the tenants are having suitableand sufficient alternate accommodations with them, thusthey will not suffer any hardship on release of the shopsunder their tenancy. Thus, if the tenant has alternate sitefor business, comparative hardship shall be determinedagainst him. Now, if the property in question be released,the tenants shall not suffer any irreparable loss, as theyhad alternative business sites, rather the landlords, whoare living separately on rental basis, shall sufferirreparable loss, in case release application is rejected.The landlords cannot be prevented to start business attheir place of choice. I am convinced with the findings

recorded by both the Courts below so far bona-fide andgenuine need of the landlords is concerned.

24.So far on the point of dilapidated condition ofthe building in question is concerned the landlords havecome up with the case that the building in question is 100years old construction. Walls are constructed with stonesand thick mud plaster. The roof is built of in old fashionwith wooden logs. About 20-22 years ago, the buildinghad rendered decrepitude due to old age and it hadreached to its fallen stage. Again on 20.01.1991, due toearthquake the walls and roofs of the building becamefragile. Logs of the roof have been decayed and thebuilding can fall anytime thereby causing grave mishap.The Trial Court has observed that the building cannot besaid to be in dilapidated condition because the landlordsdid not produce any credible or cogent evidence to provetheir version. But the Appellate Court in its findings hastaken contrary view, observing that composite applicationfor release of the property in question under both theClauses (a) and (b) of Section (1) of Section 21 of the Actwas filed by the landlords. While allowing the cross-objections of the landlords, the learned Appellate Courthas observed that the building in question is indilapidated condition, which requires demolition. Thelearned Appellate Court, while giving such findings, hasrightly considered the notices issued under Section 263 ofMunicipality Act by the Municipal Board, Kotdwar andalso the order passed by the District Magistrate directingone of the tenants Mr. Nihal Singh to shift his business toanother place. The Appellate Court has also taken intoaccount the report of expert Engineer having degree ofAMIE Civil who certified the dilapidated condition of the

building with the further report for demolition of thesame. This Court is in conformity with the findingsrecorded by the learned Appellate Court, hence thefinding recorded by the Appellate Court is upheld.

25.In view of above discussion, the writ petitionsfail and are dismissed. In the peculiar circumstances ofthe case, it is directed that the tenants/writ petitionersshall vacate the shops/premises in question on or before31[st ]March, 2011 and hand over peaceful possessionthereof to the respondents/landlords.

26.No order as to costs.

27.Let certified copy of the judgment be placed inall the connected writ petitions.

NCM:

(V.K. Bist, J.)03.09.2010