NOOR MOHD. versus IVTH ADDL. DISTRICT & SESSIONS JUDGE, ALIGARH & OTHERS

High Court of Judicature at Allahabad

Indian Supreme Court Cases / Judgements / Legislation

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Noor Mohd. v. Ivth Addl. District & Sessions Judge, Aligarh & Others - WRIT - A No. 11371 of 1998 [2006] RD-AH 20573 (5 December 2006)

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No.20

Civil Misc. Writ Petition No. 11371 of 1998

Noor Mohd.  

Vs.

IV Addl.District Judge, Aligarh   and others  

Hon. Sanjay Misra, J.

Heard Sri J.J.Munir, learned counsel for the petitioner.

List has been revised. None appears on behalf of the respondents.

The petitioner who is landlord had filed an application under section 21(1)(a) of the U.P.Act No.13 of 1972 for release of the accommodation  in question which consists of  one room, one verandah  and sehan on the first floor of the premises in question and was in the tenancy of the respondent. The need set up by the petitioner was that  he requires the said portion for starting business by his son. It was also the case of the petitioner that the aforesaid accommodation  was given in the tenancy of the respondent  for the purpose of residence and the respondent has changed the user from residential to commercial and has started  tailoring business. It was also stated that the respondent has another shop no.7/183 where he is doing his tailoring business. The aforesaid averments were denied by the respondent. The respondent tenant also denied the bonafide need of the landlord stating that he had another accommodation in his possession in the city itself where he can settle his son. It was stated that even  other members  of the family of the petitioner landlord had other accommodation  in their possession.

The court issued a commission which prepared a map regarding the extent of the accommodation  in possession of the petitioner. Against the said report and map, no objection was filed by the

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petitioner. In an affidavit the petitioner contended that the report was exparte report and it  has given incorrect report.

The prescribed authority while considering the case of the  petitioner has recorded that the bonafide need was not genuine since he has sufficient accommodation in his possession to settle his son. The prescribed authority found that shop no.7/183 was not belonging to the tenant. It also recorded that the accommodation in question was being used for business purpose and the same  is not fit for residential purpose .

Feeling aggrieved the petitioner preferred an appeal wherein the appellate court concurred with the finding of the prescribed authority on the question of bonafide need and held that the accommodation in question can not be released for residential purpose. While recording the aforesaid finding, the appellate court considered the provisions of law and recorded that the application of the petitioner for release of the accommodation for residential purpose  can not be allowed since it was being used for commercial purpose. The appellate court concurred with the finding of the prescribed authority even on the question of comparative hardship.

Learned counsel for the petitioner has argued that the courts below have misled themselves while determining the question of release for residential purpose. He submits that the case set up by the  petitioner is very specific to the effect that the tenant respondent had changed the user of the accommodation from residential to commercial whereas the tenancy was created for residential purpose and as such the courts below ought to have adjudicated upon the said issue while recording its finding.

Learned counsel for the petitioner has referred to various affidavits filed on behalf of the petitioner being  annexure-3 to 10 of the writ petition  and has contended that in each affidavit  a specific

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plea has been taken  by the petitioner to the effect that  the accommodation in question was let out  for the purpose of residence and not for commercial purpose. He contends that the courts below have misled themselves  on the actual controversy  in this case and have not given any finding regarding the claim of the petitioner nor have considered the case as set up by the petitioner.

Having perused the impugned order it appears that the respondent tenant  apart from denying the aforesaid averment as made  by the petitioner has not brought on record any evidence to show that the petitioner has in his possession any other accommodation where he can settle his son. The tenant respondent is doing business in shop no.7/183. The impugned orders have been passed on the premices  that the accommodation in question was let out for commercial purpose only which clearly indicates that the courts have not considered the contrary plea raised by the petitioner.  The courts below have therefore  misled themselves while deciding the release application and have not addressed themselves on the main controversy between the parties . For the aforesaid reason the impugned orders can not be upheld.

In view of above the impugned orders are set aside. The matter is remanded back to the prescribed authority to decide the application in light of the controversy as  raised by the petitioner and pass fresh orders  in accordance with law after giving opportunity to the parties.

The writ petition is allowed. No order is passed as to costs.

5.12.06

Gc.

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