Poonam Srivastav, J.
1. Heard Sri Arvind Srivastava, learned Counsel for the petitioner and Ms. Tulika Prakash advocate for the contesting respondents.
2. Two writ petitions are being decided by a common judgment since basic questions involved are identical and does not require separate decisions.
3. These writ petitions are on behalf of landlord Sarika Kedia, wife of Pankaj Kumar Kedia and Sumit Kumar Kedia who are landlords of the dispute premises which is part of original property of Sri Shanker Lal Kedia. The property was bequeathed in favour of Jagdish Prasad Kedia, Gopi Krishna Kedia, Sumit Kedia, Saurabh Kumar Kedia alias Arun Kumar Kedia, Sri Sanjay Kedia and Smt. Sarika Kedia by virtue of Will dated 5.1.2001. One third share came to the petitioner. However, it is a subject-matter of dispute of Suit No. 56 of 2003. A release application was preferred by the landlord vide P.A. Case No. 2 of 2005 which was in occupation of Sri Vishwanath Kanodiya, respondent No. 2 (tenant). The petitioner being daughter-in-law of Sri Jagdish Prasad Kedia who is son of Sri Shanker Lal Kedia, preferred release application under Section 21(1)(a) of U.P. Act No. 13 of 1972 (hereinafter referred to as the Act) in respect of shop, a detailed description of which is in the release application, Annexure-5 to the writ petition. The tenant-respondent filed his objection primarily raising question of maintainability of the release application since the application was not instituted on behalf of all the landlords and they have been impleaded as opposite parties in her release application. The tenant though admitted in his objection that the petitioner was one of the co-landlords as well as objections regarding grounds such as need and hardship on which the release application was instituted. The questions of bona fide need and comparative hardship was decided in favour of the landlords. The release application was allowed by the prescribed authority on 23.8.2007, a copy of judgment in Annexure-19 to the writ petition. The respondent No. 2 preferred an appeal under Section 22 of the Act alongwith stay application.
4. Sri Arvind Srivastava appearing on behalf of the petitioner has brought to my notice that the petitioner filed objection to the stay application apprising the Court that the shop in question has an area of 525 sq. ft. and is located in the heart of the city. The going circle rate on the basis of assessment of commercial area is Rs. 15,000 per sq. ft. and current circle rate is Rs. 30,000 sq. ft. This objection was accompanied with the valuer's report of the disputed property. The petitioner did not file any reply to the aforesaid objection. The appellate authority allowed the appeal by means of judgment dated 11.10.2007, a copy of the judgment is Annexure-21 to the writ petition. It is also pointed out by learned Counsel for the petitioner that though finding on the question of 'bona fide need' and 'comparative hardship' was confirmed but the appeal was allowed only on the ground that the release application was not maintainable on behalf of a single co-landlord and also that the question on the basis of which Smt. Sarika Kedia claims herself to be sole landlady, i.e., the Will dated 5.1.2001 is subject-matter of a civil suit and dispute is still pending. Thus, the appellate court was of the view that all the co-landlords should have joined hands while instituting the release application. The application on behalf of a co-landlord, arraying other landlords as proforma respondents could not be instituted. Sri Arvind Srivastava appearing on behalf of the petitioner has critically analyzed the judgment impugned. His submission is that the findings are against the settled principles of law and in ignorance of a Full Bench decision of this Court setting the controversy regarding maintainability of a release application at the instance of a single landlord at rest in 1987 ARC 281, Paragraph 17.
5. His next submission is that the findings on the question of 'bona fide need' and 'comparative hardship' stands confirmed and the two courts below have specifically come to a conclusion that the requirement of the petitioner is genuine and bona fide. The two courts below were also of the view that in the event of refusal of release of the accommodation in question, greater hardship would be suffered by the petitioner. Thus, the emphatic submission is that the factual findings cannot be re-assailed in exercise of jurisdiction under Article 226 of the Constitution of India.
6. Argument of Sri Arvind Srivastava has been emphatically disputed by Ms. Tulika Prakash. She has refuted the arguments of the counsel for the petitioner that there is any illegality committed by the appellate court while disallowing the release application. She has also challenged the findings of two Courts regarding bona fide need and comparative hardship.
7. Written arguments by both the counsels have been submitted alongwith citations relied.
8. After hearing the respective counsels at length and also taking into consideration a Full Bench decision of this Court placed before me by Sri Arvind Srivastava namely Gopal Dass and Anr. v. Ist Additional District Judge, Varanasi and Ors. Connected with Murlidhar Sah v. 1st Additional District Judge, Varanasi and Ors. 1987 (1) ARC 281 : 1987 (1) AWC 538 (FB). The only question remains to be decided is whether the release application instituted by the petitioner Sarika Kedia is maintainable or not? The primary question regarding release application by one of the co-landlords is concerned in a proceeding under Section 21 of the Act, is competent enough to institute the release application all alone impleading other co-landlords as proforma opposite parties as it is in the instant case. On perusal of the Full Bench decision, it is clear that a release application filed by one of the co-owners is maintainable even if the other co-owners are not impleaded. Secondly requirement of Rule 15(2) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 was held to be invalid. It is admitted that the petitioner is co-landlord of the premises in dispute. The Will dated 5.1.2001 as well as judgment and decree passed in Suit No. 56 of 2003 was also admitted by the tenant in its application under Section 30 of the Act since Sri Sumit Kumar Kedia and Saurabh Kedia alias Aran Kedia were also claiming to be co-landlords and, therefore, rent was deposited acknowledging the Will dated 5.1.2001. Sri Arvind Srivastava has also pointed out that all the co-landlords namely Sri Jagdish Prasad Kedia, Sumit Kumar Kedia and Saurabh Kedia alias Arun Kedia as well as Sanjay Kumar Kedia gave their consent in favour of the petitioner so far the request for release of shop in question of the petitioner is concerned. It was also admitted that the shop in question may be released in favour of the petitioner as she bona fidely requires the same for herself.
9. I have also taken into consideration the other aspects that assuming the Will dated 5.1.2001 is ignored, even then Smt. Sarika Kedia is admittedly co-landlord and once the other co-landlord having given their consent in favour of the petitioner, release application could not have been thrown out as it has been done by the appellate court. The learned Additional District Judge failed to take into consideration that following pedigree is admitted to all the co-landlords even those who are contesting the Will in the civil suit:
Shanker Lal Kedia___________________|__________________| |Jagdish Prasad Kedia Gopi Krishna KediaGita Devi Kedia (wife) Kusumlata Kedia (wife)______|___________ ____________|________| | | || | | |Sanjay Kumar Pankaj Kumar | |Kedia Kedia | |Renu Kedia (wife) Sarika Kedia (wife) | || || |Sumit Kumar Kedia Arun Kumar KediaRadha Kedia (wife) @ Saurabh Kumar Kedia
Besides, Suit No. 56 of 2003, which has been filed by the co-landlords on the basis of the Will dated 5.1.2001, has been decreed in favour of the beneficiary of the Will dated 5.1.2001, one of which is the petitioner. The tenant has no locus to challenge the decree, which has again been decided finally between the parties vide judgment dated 17.4.2003. It is also an admitted fact that the other co-owners namely Shri Jagdish Prasad Kedia, Shri Gopi Krishna Kedia, Shri Sanjay Kedia, Shri Sumit Kumar Kedia and Shri Saurabh Kedia alias Arun Kedia have admitted in the amendment application moved by them.
10. Ms. Tulika Prakash has placed reliance on two decisions, Bhoop Singh v. Ram Singh Major and Ors. 1995 (2) ARC 575 and Mahendra Yadav v. Om Prakash, : 2006 All CJ 2021 : 2007 (2) AWC 1274. On the basis of aforesaid decisions, it is submitted that the transaction between the family members was void, inadmissible, fake and collusive with the intention to oust the answering respondent. Reference is also made to the under noted citations:
1. Devi Das v. Mohan Lal AIR 1982 SC 1218.
2. Madan Lal v. Susheel Kumar Sharma and Anr. : 2001 (2) ARC 335 : 2001 (3) AWC 2212.
3. N. Khosla v. Rqjlakshmi (Dead) and Ors. 2006 (2) AWC 1911 (SC).
4. United India Insurance Co. Ltd. v. Rajendra Singh and Ors. 2000 (2) AWC 1349 (SC).
11. It is submitted that the burden of proving her case as the co-owner and co-landlord fell entirely upon the petitioner and she has been unable to discharge it. Thus, the lower appellate court rightly rejected the release application of the petitioner as not maintainable, recording a finding that the petitioner is neither the co-owner nor the co-landlord. The compromise and the decree obtained therein was the sole basis of the claim of the petitioner and the same was void and inadmissible for want of registration, hence the lower appellate court rightly ignored it and reversed the findings of the prescribed authority. It is further submitted that the dictum of law relied upon by the petitioner in the case of Copal Das v. 1st Additional District Judge 1987 ARC 281 : 1987 (1) AWC 538 (FB), is not applicable in the present case. The lower appellate court has recorded a categorical finding that the petitioner is neither the co-owner of the property in question nor the co-landlord.
12. The objection on behalf of the respondent No. 2 that the compromise/partition entered between the parties vide judgment and decree passed in Suit No. 56 of 2003 and needs to be registered and, therefore, the judgment and decree passed in Suit No. 56 of 2003 is liable to be ignored. This is also immaterial as this does not involve the questions to be decided in an application under Section 21 of the Act. The next submission raised by tenant that the partition between the co-sharers is collusive and, therefore, should be ignored, is also without any substance. The tenant cannot challenge the partition among the co-sharers.
13. Learned Counsel for the petitioner placed reliance on various judgments. In the case of Balwant Singh Negi v. Additional District Judge/F.T.C. III, Dehradun and Ors. 2005 UPRCC 417 paragraph 4, it was ruled that the factual aspects of comparative hardship has been examined by the prescribed authority as well as the learned appellate authority and their finding is concurrent with reasons. This Court in its supervisory jurisdiction under Article 227 of the Constitution of India, is not inclined to interfere with such concurrent finding of fact. The next decision relied upon by counsel for the petitioner is Uma Shankar v. XIth Additional District Judge, Aligarh and Ors. : 2004 UPRCC 210 : 2004 (1) AWC 432. Extract of paragraph 5 of the said judgment is quoted below:
The Supreme Court in : AIR 1997 SC 998, has held that tenant cannot challenge the family partition amongst the landlord except to show that it was entered into in order to make out a ground for ejectment under relevant Rent Control Act.
The next decision is Raj Mohan Krishna v. Second Additional District Judge, Allahabad and Ors. 1992 (2) ARC 241, where it was held that the family partition has been effected between the father and his sons. Respondent No. 3 did not derive title only on the basis of family partition but on the basis of the decree passed in the partition suit. It is not open to a tenant to challenge the decree passed in a civil suit in proceedings for release under Section 21 of the Act. In the case of Shri B.N. Tewari v. Second Additional District Judge, Nainital and Ors. 1982 (1) ARC 526, it was ruled that it is a well-settled cardinal rule that no tenant can be allowed to question the title of a landlord. If after the alleged partition, a tenant has attorned to a particular erstwhile co-owner as his sole landlord, I apprehend that it will not be open to such a tenant to question the title of a landlord on the ground that the transaction whereby landlord became the sole owner of the property, was a mala fide one and not a genuine one. Reliance has also been placed in the cases of Rajesh Gupta v. Shri Mahabir Parshad 1981 (1) RCR 721 paragraph 4 and Smt. Sughra Begum v. Sri Ram and Ors. 1983 (2) ARC 143.
14. Thus, I am in agreement with the submissions made by learned Counsel for the petitioner. The Full Bench decision in Gopal Das and Anr. (supra) it is without any ambiguity, one of the co-owner is competent to maintain an action for eviction of the tenant of the entire premises under Section 21 of the Act. He is very well a landlord within the meaning of Section 3(j) of the Act. One co-owner alone would be competent to sign such an application.
15. In the instant case, I cannot ignore the additional factor that Sri Jagdish Prasad Kedia who is a contesting party in civil suit has also given his consent so far need of the petitioner is concerned and also expressed that he has no objection if it is released in favour of the petitioner as she genuinely and bona fidely requires the same for her own use. In the present case, the appellate authority without considering the findings given by the prescribed authority has held that the petitioner has no right to move the release application and consequently it was rejected. The appellate court has recorded findings of comparative hardship and bona fide need in favour of landlord-petitioner.
16. Thus, it is evident that the writ petition deserves to be allowed on this ground alone. The appellate court has recorded its finding without adventing to the Full Bench decision and law laid down by this Court and thus I am of the view that the writ petition deserves to be allowed.
17. In the circumstances, the writ petitions are allowed and the judgment and orders dated 11.10.2007, passed by the Additional District Judge, Court No. 2, Deoria are quashed.
18. In the end, learned Counsel for the respondents has made a request for granting some time to the tenant to vacate the shop in question. However, the request of the learned Counsel for the respondents that some time may be allowed to vacate the shop in question appears to be reasonable and justified.
19. The tenant is permitted six months' time from today to vacate the shop in question and handover vacant possession to the landlord till 30.3.2010 provided he files an undertaking within a period of three weeks before the prescribed authority that he will continue to pay rent at the prescribed rate till he handover vacant possession and also he will not sublet or handover possession to any third person but for the landlord. In the event the tenant fails to file an undertaking in the shape of an affidavit within the aforesaid period, this liberty of six months shall automatically come to an end.
20. After delivery of judgment in the open Court, a request was made by Ms. Tullka Prakash advocate that the period of six months' time allowed for vacating the disputed shop may be extended to one year.
21. Sri Arvind Srivastava is present. His objection is that the rent of the disputed shop is too meagre and the respondents be directed to pay damages at an enhanced rate.
22. The request of Ms. Tulika Prakash is granted. I allow one year time from today to the tenant to vacate the disputed shop subject to the aforesaid condition. In addition to above condition, the rate of damages shall be paid from the date of judgment at the rate of Rs. 2,500 per month.