Prafulla C. Pant, J.
1. By means of this writ petition, moved under Article 226 read with Article 227 of Constitution of India, the petitioners (tenants) have challenged the judgment and order dated 16.3.2004, passed by learned Additional District Judge/F.T.C. I, Dehradun, in Rent Control Appeal No. 57 of 2001, whereby reversing the order dated 8.5.2001, passed by Prescribed Authority, in P.A. Case No. 19 of 1995, has allowed the application for release of the premises in question in favour of the landlord.
2. Heard learned Counsel for the parties and perused the record.
3. Brief facts of the case, as narrated in the writ petition, are that Late Shri Govind Ram Arora, the grandfather of the petitioner No. 2, occupied the ground floor of property No. 12, Astley Hall, Dehradun, as tenant on rent from its erstwhile landlord in the year 1935, and since then the tenancy had continued. On the death of Shri Govind Ram Arora, the tenancy of the aforesaid premises was inherited by his son Shri S.K. Arora, who expired in the year 1981, leaving behind petitioner No. 1 Prabha Arora, as his widow and petitioner No. 2 Kapil Arora, as his son apart from the two daughters, Ms. Jyoti and Ms. Vrinda. The premises in question were taken on rent for commercial purposes. The respondent No. 1 Km. Brijmohini Anand, alongwith her sister Ms. Pushpa Anand, moved an application under Section 21 of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, (for brevity hereinafter referred as U.P. Act No. 13 of 1972) in the year 1995, for release of the aforesaid premises. The other co-owners Madan Mohan Anand and Sudarshan Mohan Anand, were not impleaded. Both Ms. Brijmohini Anand and Pushpa Anand, the unmarried duo, claimed themselves landladies while their brothers had settled out of Dehradun. During the pendency of proceedings, initiated on aforesaid release application, Ms. Pushpa Anand, expired on 15.1.2002. The ground mentioned in the release application of the landlady, is that she needs the premises in question to augment her income, as she being a retired teacher from M.K.P. College, Dehradun, getting a meagre amount of pension and wants to run tuition/coaching classes in the aforesaid premises. Earlier also in the year 1973, Smt. Pushpa and Ors. moved an application for release of property No. 12, Astley Hall, the same though allowed in respect of first floor but as to the ground floor, the said earlier application was rejected. As such, the landlady is already in possession of the rooms in the first floor of property No. 12, Astley Hall. Dehradun. According to the petitioners (tenants), need of the landlady is not genuine and by the time she filed application, she had already passed retired life of some 10-15 yeaRs. The release application was challenged by the petitioner also on the ground that there is no Justification in allowing the same in view of Rule 16 (2)(a) of U.P. Act No. 13 of 1972. The prescribed authority, after hearing the parties and considering the evidence, adduced by them, rejected the release application on 8.5.2001 (copy Annexure-3 to the writ petition). Aggrieved by which, the landlady, preferred Rent Control Appeal No. 57 of 2001, before appellate authority. The appellate authority, after hearing the parties, on 16.3.2004, reversed the judgment of the prescribed authority and allowed the application for release of premises on 16.3.2004 in favour of the landlady (copy of said order is Annexure-6 to the writ petition). The order of the appellate authority (respondent No. 2) is challenged through this writ petition on the grounds that mere desire of the landlady, cannot be equated with the bona fide need, particularly in view of the fact that the landlady (respondent No. 1) is eighty years of age and cannot run the tuition/coaching classes. It is also alleged in the writ petition that the landlady can run the tuition and coaching classes in eight rooms, already available to her in the first floor. While allowing the release application, the appellate authority, ignored the provision of Rule 15 (2) and Rule 16 (2)(a) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972. Lastly, it is also pleaded that comparative hardship was not properly examined by the appellate court. It is also alleged that during the pendency of the appeal, before respondent No. 2, a trust in respect of the premises, has been created, as such, the personal need of the landlord has lost its significance.
4. The respondent No. 1, contested the writ petition and filed a counter-affidavit. Defending the impugned judgment and order, passed by respondent No. 2, the landlady has stated in the counter-affidavit that in view of the principles of law Laid down inSurya Dev Rai case. MANU/SC/0230/2003 : 2003CriLJ2028 and Ranjeet Singh v. Ravi Prakash MANU/SC/0243/2004 : AIR2004SC3892 , the present writ petition is not maintainable. It is further stated that the landlady was admittedly a retired teacher from M.K.P. P.G. College, Dehradun and has sufficient experience to run the tuition classes. It is also stated that there is no bar for a retired person to run any business or profession after her retirement. It is further stated in the counter-affidavit that tenant cannot dictate the landlady as to her business and profession, she should or should not adopt. in the rejoinder-affidavit, the petitioners have reiterated their averments made in the writ petition. During the pendency of the writ petition, the petitioners got impleaded Brahma Dutt Tyagi, Sudarshan Mohan Anand, Dr. Smt. Krishana Anand, Dr. Arun Anand, Murli Manohar Sharma and Umesh Rastogi (respondents No. 4 to 9), alleging that a trust has been created during the pendency of the appeal before respondent No. 2, on 4.8.2003 in respect of the property in question. Impleaded respondent No. 4 Brahma Dutt Tyagi (one of the trustees), filed an affidavit before this Court, stating that though the trust is created in respect of the property in question but the landlordship of the premises still remains with respondent No. 1 Brij Mohinl Anand, who is also the Chairman of the trust. Respondent No. 1, has filed a supplementary counter-affidavit, admitting the creation of trust, but alleging that her status as landlady has not changed nor is she required to make disclosure as from where she had received the amount in her bank accounts, as she has not sold the property nor has accepted any consideration therefor.
5. In its writ jurisdiction, this Court cannot go into the correctness of the factual satisfaction of the appellate court unless the same is perverse. As such, the findings on the bona fide need of the landlord and on the point of comparative hardship being finding of fact, can be disturbed by this Court only If the same is perverse or against the provisions of law.
6. What can be examined by this Court is the material error of law, if any, committed by the Court in allowing the release application, moved by the landlady under Section 21 of U.P. Act No. 13 of 1972.
7. On behalf of the petitioners, it is vehemently argued that during the pendency of appeal before respondent No. 2, a registered trust was created on 4.8.2003, by respondent No. 1 Km. Brijmohini Anand (landlady), relating to the property in question, as such, since the property stood transferred from respondent No. 1 to the trust, the release application, moved by respondent No. 1, could not have been allowed by the appellate court (respondent No. 2). It is further argued that respondent No. 1, has concealed this fact from said appellate court. As such, the impugned order dated 16.3.2004 (Annexure-6 to the writ petition), allowing the release application is bad in law and should be quashed.
8. No doubt, by creation of trust, ownership, in the eyes of law, stands transferred from the previous owner to the trust. But under U.P. Act No. 13 of 1972, a release application is maintainable not on behalf of the owner but on behalf of the landlord. The word 'landlord' has been defined in Clause (j) of Section 3 of said Act, which reads, as under:
(j) 'landlord', in relation to a building, means a person to whom its rent is or if the building were let, would be, payable and includes, except in Clause (g), the agent or attorney, or such person.
Clause (g) of Section 3, defines 'family' in relation to landlord or tenant, and is not relevant for the purposes of this case. As such, from the above definition, it is clear that even If someone else is owner, the person to whom the rent is payable is the landlord. Nowhere in the writ petition, it has been alleged by the petitioners that they are paying rent to the trust nor is it pleaded that rent is payable to anyone else than respondent No. 1. The copy of the trust deed (which is Annexure-2 to the affidavit filed with objection against Stay Vacation Application, filed on behalf of the petitioners) discloses that respondent No. 1 herself is the Chairman of the trust. Therefore, since the status of the landlordship of respondent No. 1 is not changed in this case, by mere creation of trust, the argument advanced on behalf of the petitioners to quash the impugned order, allowing the release application, cannot be accepted.
9. Learned Counsel for the petitioners, drew attention of this Court to the principle of law Laid down inTulsidas Kilachand v. Commissioner of Income Tax MANU/SC/0163/1961 : [1961]42ITR1(SC) , and contended that even if the transferor has made himself a trustee still it is a transfer of property from one person to another person. I have already observed that though the property stands transferred from one owner to another but the status of respondent No. 1 as landlord, has not changed in this case. The aforesaid case law Tulsidas Kilachand case (supra) does not say that the landlordship of the house also gets changed even if the rent continues to be payable to same person.
10. Shri L.P. Naithani, learned senior counsel, appearing on behalf of the petitioners, drew attention of this Court to the principle of law, contained inHukum Chand v. Om Chand MANU/SC/1200/2001 : (2001)10SCC715 and argued that since the need for release of the house, shown by respondent No. 1 was personal, as such, by transfer of property to the trust, the need of respondent No. 1 gets wiped out. I have gone through the said case law. inHukum Chand case (supra), the Apex Court has itself held that by transfer of interest in the property by the landlord, does not stop the progress of litigation. And the transferee, steps into the shoes of his predecessor in interest. The copy of the trust deed (Annexure-6 to the affidavit, filed with the objections to stay vacation application by the petitioners) of which respondent No. 1 landlady herself is the Chairman, shows that one of the object of the trust is to run the coaching institute to provide coaching at various levels. As such, when the status of respondent No. 1 as landlord has not changed and the object of the trust also indicate that the purpose for which the house is sought to be released still survives, due to the subsequent event of creation of trust in respect of the premises does not make the difference in the present case.
11. Another case law, referred on behalf of the petitioners is Kedar Nath Agrawal v. Dhanraji Devi MANU/SC/0887/2004 : (2004)8SCC76 , in which the Apex Court, has held that though the basic rule is that rights of parties are required to be determined on the basis of the cause of action, as it existed on the date of institution of proceedings but where the subsequent event is such which altogether dissolves the need alleged by the original landlord, the same cannot be ignored. On going through the said case law, it is clear that inKedar Nath Agrawal case (supra), the landlord had died during the pendency of the proceedings and there was none who needed the house for the purpose for which it was sought to be released. in the present case, landlady is still alive and the above case law, in the opinion of this Court, does not help the petitioners.
12. It is also submitted on behalf of the petitioners that during the pendency of the appeal and this petition, the respondent No. 1 has received hefty amount of money in her account and as such, the ground mentioned in the release application that she is a poor pensioner and needs to augment her income is false. I had already mentioned above that as to the factual satisfaction of the appellate court, this Court cannot interfere with that of the appellate court unless the same is perverse. Assuming for a moment that landlady has received money in her account during the pendency of the appeal that by itself is not sufficient ground to say that her need to run the tuition classes is not genuine. Her status as a retired teacher, remains the same particularly when it is not disputed that her meagre pension amount, mentioned in the release application is wrong.
13. Lastly, it is argued on behalf of the petitioners that the lower appellate court has ignored Rule 16 (2) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972. Clause (a) of sub-rule (2) of Rule 16 of said Rules, provides that 'the greater the period since when the tenant opposite party, or the original tenant whose heir the opposite party is, has been carrying on his business in that building, the less the justification for allowing the application.' It has been decided in several cases that the aforesaid Rule is directory in nature and not mandatory one. If that Rule is accepted as mandatory, it would be impossible to evict for a landlord to get released his house from any old tenant who is occupying it for the business purpose. Referring to the case of G.C. Kapur v. Nand Kumar Bhasin 2001 (2) ARC 603 : 2002 (1) AWC 73 (SC), on behalf of the petitioners, it is argued that the desire of the landlady cannot be said to be her honest and sincere need. I agree with the principle of law that mere desire cannot be said to be the honest, sincere and bona fide need of the landlord. But in the present case, respondent No. 1, landlady, who is a retired Lecturer, having pension less than Rs. 600 per month, if says that she needs the premises to augment her income, the same cannot be termed as mere desire.
14. For the reasons, as discussed above, in the opinion of this Court, the impugned order, challenged through this petition does not require any interference by this Court. Accordingly, the petition is dismissed with the observation that the petitioners are allowed three months time from today to vacate the premises in question, failing which the impugned order may be got executed through the Prescribed Authority concerned.