# Vinay Kumar Madhok v. Om Prakash and others

- **Citation:** (2000) 2 ILRA 39
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2000
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vinay-kumar-madhok-v-om-prakash-and-others-39445
- **Pages:** 6

## Text

2All] Vinay Kumar Madhok V. Om Prakash and others
39
10. If the respondent corporation really
needed a typist at Bombay it could have
advertised the post of typist in a Bombay
newspaper and could have selected a good
typist who lives in Bombay. The fact that the
petitioner who lives in Allahabad has been
transferred to Bombay supports the version of
the petitioner that the real purpose of his
transfer was because he refused to opt for the
voluntary transfer scheme, and thus it was an
indirect method to get rid of him. In my
opinion this is clearly malafide.

11. No doubt it has been mentioned in the
petitioner's appointment letter that he can be
transferred to the branches of the corporation
but the said clause cannot override Article 14
of the Constitution. In my opinion, the
statement in the aforesaid letter that the
petitioner can be transferred to the branches of
the
corporation
cannot
mean
that
the
corporation can act arbitrarily in the matter.
No letter or contract can override Article 14
of
the
Constitution.
The
respondent
corporation is an instrumentality of the State
and hence its action is subject to Article 14 of
the Constitution.

For the reasons given above the petition is
allowed. The impugned transfer order dated
10.10.1994 and 10.1.1995. Annexure-1 and 4
to the petition are quashed. No order as to
costs.
Petition Allowed.

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By the Court

1. This is a tenant's petition under Article
226. Constitution of India praying for writ of
certiorari to quash the impugned order dated
3.11.1999
passed
by
Respondent
no.2/
Additional District Judge, Dehradun in Rent
Control Appeal no. 10 of 1999 (Om Prakash
Versus Vinay Kumar Madhok) filed by
landlord against the judgment and order dated
January 8, 1990 passed by the Prescribed
Authority/
Respondent
no.3
dismissing
release application of the landlord under
Section 21 (1) (A), U.P. Urban Building
(Regulation of letting, Rent and Eviction )
Act, 1972. U.P. Act No. XIII of 1972 (for
short called 'the Act'), being P.A. Case no.
168 of 1987 (Om Prakash Versus Vinay
Kumar Madhok).

2. Both the parties in the instant case were
initially tenants of the residential house
INDIAN LAW REPORTS ALLAHABAD SERIES [2000

40
no.101/120,
Sayeed
Mohalla,
Dehradun
(called the accommodation). Om Prakash
purchased said house (which was in his
possession as well as in possession of Vinay
Kumar Madhok, (tenant/petitioner) vide sale
deed dated January 20, 1983.

3. After lapse of four years of the purchase
Release
application
was
filed.
Record
indicates that parties have been litigating and
not no good terms and consequently rent is
being deposited under Section 30 of the Act.

4. It has also come on record that the
tenant -petitioner also intended to purchase
the entire house but his wish did not fructify
and Om Prakash, Respondent no. 1 succeeded
in purchasing the entire accommodation (see
para 2 of the affidavit of Vinay Kumar
Madhok-respondent no.1-filed as Annexure 3
to the writ petition particular page 57-58).

5. Release application under section 21 (1)
(a) of the Act was presented on the ground
that the landlord bonafide required one room
of the said house in tenancy of the petitioner
and
used
as
shop-
hereinafter
called
"accommodation in question" for residential
need of self and his family. The details of the
family of landlord /Respondent no. 1 and the
accommodation
in
possession
of
the
landlord's family are not disputed and given
hereunder:-

(A) FAMILY OF THE LANDLORD
(at the time of filing release application in
the year 1987)

(i) Landlord
-
Om Prakash
(ii) Wife
(iii) Son

-
12 years
(iv) Daughter
-
 9 years
(v) Daughter
-
 6 years
(vi) Son

-
 3 years

ACCOMMODATION
(PORTION
OF
HOUSE NO. 101/120) IN POSSESION OF
LANDLORD
(i) Shop
-
10' x 10'
(ii) Store (attached with shop) 10' x 5'
(iii) Two Rooms each 12' x 10'
(iv) Kitchen
10' x 5'
(v) Bathroom/latrine
(vi) Gallery

(B) ACCOMODATION IN QUESTION :
ONE ROOM - 10'x 10'

(used as Shop by the tenant)

6. Landlord claimed that e required a
drawing room as well as study room for his
children. Who were of growing age. The said
shop, according to the petitioner, was
managed by his father in his absence while he
was on duty being in service in a factory but
looked after the shop after his duty hours.

During Appellate stage, it came on record,
father and mother of the petitioner died and
that Petitioner himself got married. tenant
alleged that he has a liability to maintain his
two sisters - one being divorced. In Appeal
Petitioner
admitted
that
he
had
taken
reemployment with his old employer but his
income from service was not sufficient and he
had to augment income to support his family
and self from the said shop and meet the
needs of his family.

7. The Prescribed Authority held that the
need of he landlord was genuine and bona
fide but it decided the question of comparative
hardship, against the landlord. Consequently
the release application was rejected vide
judgment and order dated 8th January,1990,
(Annexure-1 to the Writ Petition).

Feeling aggrieved landlord - Om Prakash
(Respondent no.1 in the writ petition) filed
Rent Control Appeal no.10 of 1999 under
Section 22 of the Act.

8. Appellate Authority discussed the
evidence and the respective contention of the
parties in detail, confirmed the finding on the
question of bona fide need but set aside the
2All] Vinay Kumar Madhok V. Om Prakash and others
41
finding
on
the
point
of
'Comparative
Hardship'
(recorded
by
the
Prescribed
Authority). The Appellate Authority, Vide its
judgment
and
order
dated
3.11.1999
(annexure-2 to the Writ Petition) allowed the
appeal, set aside the judgment and order dated
8th January, 190 passed the Prescribed
Authority (Annexure -1 to the Writ Petition)
directed the landlord to pay compensation
equivalent to two years rent within 15 days,
tenant to vacate the premises within 30 days
and hand over its peaceful possession to the
landlord.

9. Respondent no.2 and 3. (Prescribed
Authority and Appellate Authority) have
been served through the office of Chief
Standing Counsel, Contesting parties have
exchanged Counter Affidavit and Rejoinder
Affidavit.

10. Taking into account the fact that
Release was filed in 1987 (thirteen years
before) and to avoid further delay, Writ
Petition is heard finally at admission stage and
none of counsels representing the parties had
objection to it.

11. Case was heard at length on merit on
17th and 18the January, 2000 and then
adjourned to 20th January, 2000 to enable the
learned counsel for the petitioner to contact
his client and seek instructions to take time to
vacate the accommodation and settle the
matter amicably.

Case is being taken up again today and
matter has been heard afresh on merit, since
the learned counsel for the petitioner stated
that petitioner, on being contacted informed
him that he will contest the case on merit and
there is no scope to settle.

12. Learned counsel for the petitioner in
his argument attempted to assail the finding
on 'Bona-fide need', on the ground that
Appellate Authority has not referred to one
room measuring 10' x 5' and admittedly, in
possession of the landlord as noted in the
judgment of the Prescribed Authority.

13. Appellate Authority has, it is true, not
specifically referred to the accommodation
measuring 10'x5. The said space, as a matter
of fact, not a regular room according to the
landlord but a store (10'x 5') attached to the
shop, hence not a room to be used for regular
living purpose.

14. It has, however, been submitted by the
Petitioner if the room 10'x 5' (said to be
store) is taken into account it will vitiate the
appellate judgment.

15. Learned counsel for the contesting
respondent no.1 / landlord submitted that
tenant did not lay emphasis on this store to be
counted as room before the Appellate
Authority and it is now not open to the
Petitioner to challenge appellate judgment on
this score-particularly when there is no
categorical averment in the writ petition that
Appellate Court ignored it in the writ petition
that Appellate Court ignored it in spite of it
being referred to as separate regular room.
Secondly
-
Prescribed
Authority
was
conscious of the said store in possession of
the landlord and recorded finding of fact on
the question of bona fide need which has been
affirmed by the Appellate Authority.

Store measuring 10' x 5', cannot be said to
be an independently room when, admittedly,
it is attached to the room in possession of the
landlord and used as shop. Hence this store
cannot
be
counted
as
'room'
while
considering the need of the landlord for
residential purpose.

16. According to the respondent/landlord
even otherwise, finding of the appellate
authority, on the question of the extent of the
need of the landlord cannot be vitiated, even if
this store is being taken into account and the
ultimate
conclusion
arrived
at
by
the
Appellate Authority will remain the same.
INDIAN LAW REPORTS ALLAHABAD SERIES [2000

42
17. Considering the family members, their
age and the fact that now the landlord has
grown up children (by passage of time), it
may be visualized that the grown - up son and
daughter will require separate room.

18. Observation of Appellate Authority
that eldest son was going to be married is not
disputed by the tenant before this Court.

Appellate Authority has dealt with this
aspect in its judgment (on page 43 and 44 of
the writ paper book). Conclusion drawn by
the Appellate Authority is as follows:-

Landlord and wife - One Room (for living)
Son (going to be married)- One Room (for
living)
Two daughters (grown-up) - One Room (for
living & study)
Son (20years) - One Room (for living &
study)
For Drawing room and
Guest (for joint use)
- One Room

Total requirement
= Five Rooms

Landlord, at present, in his possession has
following accommodation:-

1. Two rooms (12' x 10')
2. Room (as Shop) (10' x 10')
3. Room (store)(10' x 5')

Landlord, even according to the tenant
does not have more than three roomsmeasuring 12' x 10', 12' x 10' and 10' x 5'
stay apart from shop in possession of the
landlord.

For the sake of argument, even if the need
of the drawing room is excluded, landlord will
require four rooms. Landlord, admittedly,
falls short of one room.

19. Facts are scrutinised by this Court to
ascertain
whether
the
finding
and
the
judgment of appellate Court will be vitiated, if
store is taken into account, the finding arrived
at by Appellate authority will remain the
same.

Consequently, submission on behalf of the
petitioner
does
help
him in materially
assailing the judgment of the appellate Court.

20. The next submission of the petitioner
is that, accommodation should not be allowed
to be released for residential use particularly
when there is a prohibition with respect to the
residential accommodation being released for
commercial/non-residential purpose.

21. The argument may, on its face, look
attractive but it is to be accepted only to be
rejected inasmuch as it proceeds on fallacious
assumption that 'converse' is also true.
Residential
accommodation
and
nonresidential accommodation stand on different
footing as the criterion to grant release in the
two cases varies and they are to be dealt
differently.

22. Need for shelter takes precedence, as
there is no substitute for it. One can, however,
manage business in many ways. Moreover, in
the instant case petitioner is not solely
dependent on I income from shop, landlord
solely dependent upon the accommodation for
his residential need-, which is found to be
bona fide. In its absence he and his family are
bound suffer irreparably.

Moreover Courts have by now settled the
controversy that a residential accommodation
shall remain residential notwithstanding that a
minor portion is used for non-residential
purpose.

This submission on behalf of the petitioner
does not find favour with this Court.

23.
Regarding
comparative
hardship,
learned counsel for the petitioner submitted
that court below did not advert itself and filed
to appreciate evidence in accordance with law
2All] Vinay Kumar Madhok V. Om Prakash and others
43
- particularly the aspect that no shop was
available to him on a rent suiting to his pocket
and he was not in position to purchase the
shop.

24. The submission of the petitioner
appears to be that unless a tenant has an
alternative
suitable
accommodation,
according to his own standards, 'release'
application cannot be allowed by courts. This
submission in 'extreme' and isolation cannot
be accepted being fallacious misconceived
and amounts to stretching things too far in
favour of Petitioner ignoring landlord who is
generally owner of the accommodation. Law
does not require that a tenant must have an
alternative accommodation before the release
application may be decided against him.

25. The view taken by this Court is
supported from the observation made in the
judgment reported in 1984(I) ARC 114 (para
126) N.S. Dutta versus VII Additional District
Judge, Allahabad and in 1982 (I) ARC 783 -
Kamil Khan Versus III Additional District
Judge and others.

26. Learned counsel for the petitioner has
placed reliance on the decision reported in
1990 (1) ARC 103. In this judgment leaned
single (in para 34) has observed that growing
need of a party should have been considered.
In this view of the matter need of tenant alone
cannot be seen but also that of the landlord.
The
facts
of
the
case
indicate
that
accommodation in question was a shop and
landlord wanted release of it for the purpose
of
a
shop.
This
judgment
is
clearly
distinguishable.

27. In the instant case landlord wants
residential accommodation for his growing
children, one of the two sons was to be
married shortly. Landlord and his wife cannot
live with grown up sons and /or daughters nor
they can inter se amongst themselves be
adjusted in the room of the others. Married
son cannot stay in the bedroom of his parents
or in the room of his unmarried sisters or
room of grown up brother.

28. This release application was filed in
the year 1987 and by passage of time it has
come on record that during the pendency of
the proceedings landlord family is growing
and
they
need
extra
residential
accommodation. On the other hand, the tenant
admittedly does not have significant income
from the shop and has been able to seek
reemployment/ job with his earlier employers.
Carrying on business as a side show, for some
additional income cannot be given precedence
or priority over an acute residential need of
the landlord.

29. In view of the above, I do not find any
manifest error apparent in the impugned
judgment and order dated 3.11.1999 passed
by the Additional District Judge, Dehradun,
Respondent no.2 and the findings recorded by
the Appellate Authority are hereby affirmed.

Writ petition has no merit and it is,
accordingly, dismissed.

30. After dictation of the above judgment
could be typed and finally signed a mercy
application (subsequently numbered 9606 of
2000) on behalf of the petitioner praying for
grant of time to vacate the shop in dispute was
moved in chambers on 1-2-2000. This
application is supported by an affidavit of
Sushila Madhok (wife of the petitioner). A
copy of this application has also been served
on Sri Rajesh Tandon, counsel for respondent
no.1- Landlord.

31. Before lunch, I directed learned
counsel for the petitioner to inform Shri
Tandon,
counsel
for
the
contesting
Respondent and appear in Court in this case.
Shri Rajesh Tandon requested case to be taken
up on 2-2-2000. Application was directed to
be put up on 2-2-2000. Shri Aditya Narain
and Shri Rajesh Tandon, Advocates appeared
in Court on 2-2-2000.
INDIAN LAW REPORTS ALLAHABAD SERIES [2000

44
32. Keeping in mind the fact that
accommodation is being used as shop and it is
not easy to find out alternative shop normally
prayer made by the petitioner to grant three
months time to vacate the shop in question
cannot be said to be unjust. The request of the
petitioner is very just and it is, accordingly,
granted.

33. Consequently petitioner, who has
given an undertaking to this Court vide Para 4
of the affidavit referred to above, granted
three months time to vacate the shop in
question subject, however, further to the
following terms and conditions (agreed upon
by the parties before this court) contained
hereinafter:-

1. The
Tenant-petitioner
files
before
concerned Prescribed Authority, on or before
1st March,2000 an application along with his
affidavit giving an unconditional undertaking
to comply with all the conditions mentioned
hereinafter:

2. Petitioner-tenant shall not be evicted from
the accommodation in his tenancy up to 30th
April,
2000.
Tenant-Petitioner,
her
representative/assignee, etc, claiming through
her or otherwise, if any, shall vacate without
objection
and
peacefully
deliver
vacant
possession of the accommodation in question
on or before 30th April, 2000 to the landlord
or landlord's nominee/representative (if any,
appointed and intimated by the landlord) by
giving prior advance notice and notifying to
the landlord by Registered A.D. post (on his
last known address or as may be disclosed in
advance by the landlord n writing before the
concerned Prescribed Authority) time and
date on which Landlord is to take possession
from the tenant.

3. Petitioner shall on or before 1st March,
2000 deposit entire amount due towards rent
etc. up to date i.e. entire arrears of the past, if
any, as well as the rent for the period ending
on the 30th April, 2000.
4. Petitioner and everyone claiming under her
undertake not to 'change' or 'damage' or
transfer/alienate/assign in any manner, the
accommodation in question.

5. In case tenant-petitioner fails to comply
with any of the conditions/or direction/s
contained in this order, landlord shall be
entitled to evict the tenant-petitioner forthwith
from the accommodation in question by
seeking
police
force
through
concerned
prescribed authority.

6. If there is violation of the under taking of
anyone or more of the conditions contained in
this order, the defaulting party shall pay
Rs.25000/- (Rupees Twenty five thousand
only) as damages to the other party besides
rendering
himself/herself
liable
to
be
prosecuted for committing grossest contempt
of the Court.

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