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VINOD KUMAR SHUKLA AND ANOTHER versus IV A.D.J.

High Court of Judicature at Allahabad

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Vinod Kumar Shukla And Another v. Iv A.D.J. - WRIT - A No. 22077 of 1991 [2006] RD-AH 2758 (6 February 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

(Reserved)

Civil Misc. Writ Petition No.22077 of 1991

Vinod Kumar and another Versus IV Additional District Judge, Jhansi and others.

Hon'ble S.U.Khan J

This is tenants' writ petition arising out of eviction / release proceedings initiated by landlord respondent No. 2 Ram Sewak Agarwal against the tenants i.e. both the petitioners as well as proforma respondents No. 3 and 4. The release application was filed on the ground of bonafide need for residence under section 21 of U.P Act No. 13 of 1972 in the form of R.C case No. 92 of 1980 on the file of prescribed authority/ Civil Judge, Jhansi. Release application was dismissed on 12.1.1989. Against the said judgment and order landlord filed R.C Appeal No. 5 of 1989 which was allowed by IV Additional District Judge/ Special Judge, Jhansi on 13.5.1991 hence this writ petition.

House in dispute is situate at 471 Chamanganj, Sipri Bazar, Jhansi. Initially Sri Dev Sharma Shukla was the tenant of the accommodation in dispute who died before filing of the release application and upon his death petitioners and proforma respondents No.3 and 4 inherited the tenancy. Petitioner No.1 and respondent No. 3 and 4 are sons of petitioner No.2 Smt Manorma Shukla who is wife of late Dev Sharma Shukla.

Landlord respondent No.2 purchased the house in dispute on 9.6.1973. Sri Dev Sharma Shukla was continuing as tenant in the said house since before its purchase by respondent No.2 and was running a floor mill there from. The deceased tenant had his own house situate at 90 Premganj, Sipri Bazar, Jhansi. It was also pleaded that landlord had only one house situate at 5 Chamanganj, Sipri Bazar, Jhansi which was not sufficient for his need as in his family there were 30 persons.

Tenants pleaded that petitioner No.1 Vinod Kumar Shukla was running a floor mill from the accommodation in dispute and that Subodh Kumar respondent No.3 was employed in a private institute in Tehri Garhwal and that Pramod Kumar respondent No.4 was employed as Clerk in BHEL Jhansi. It was further pleaded that Subodh Kumar respondent No.3 had established a floor mill at Nanakganj and after joining service, he was getting the said floor mill managed through a servant and the entire profit of the said floor mill was being utilized by Subodh Kumar and Vinod Kumar had no concern therewith. It was further stated that residential house of the tenants was situate in a narrow lane from where business of floor mill could not be carried out and the accommodation in dispute was more suitable for floor mill than the residential house of the tenant.

Prescribed authority held that landlord had not stated clearly the number of his family members, their ages, their social status and their names. Prescribed authority further held that landlord had not disclosed the exact relation of family members with him. Tenant had pleaded that landlord's family consisted of only 6 or 7 persons and that while giving number of his family members as 30, he had included the family members of his brothers also. The finding of prescribed authority in this regard is utterly wrong. The house of landlord at 5 Chamanganj, Sipri Bazar, Jhansi was ancestral in which he and all his brothers had shares. It was therefore utmost essential to give family strength of the landlord and his brother also. In the ancestral house, he and his brothers have equal shares. Tenant had pleaded that in the landlord's ancestral house there were 10 or 12 rooms.

Prescribed authority held that floor mill at Nanakganj was owned by Subodh Kumar. In this regard, firstly it is important to note that after the death of the tenant all his heirs inherit the tenancy jointly vide Harish Tandon Vs. A.D.M AIR 1995 SC 676 hence alternative accommodation available to one of the joint tenants is deemed to be available to all. Secondly it was clearly admitted that Subodh Kumar was employed in Garhwal hence he must not be running the said floor mill.

As far as question of six months notice under first proviso to section 21(1) is concerned Supreme Court in AIR 2001 SC 2984 Anwar Hasan Khan Vs. M.Shafi has held that if release application is filed after three and half years from the date of purchase, no notice is necessary. In the instant case release application was filed after about 7 years from purchasing the property. Appellate court also took into consideration that tenant did not make any efforts to search alternative accommodation after filing of the release application.

Appellate court rightly held that the need of the landlord was bonafide and balance of hardship lay in his favour. As far as hardship is concerned tenant could establish his flour mill in his house, another flour mill was being run by one of the tenants and the tenants did not show that they made any efforts to search alternative accommodation after filing of the release application. I do not find any error in the findings of the appellate court.

Writ petition is therefore dismissed.

Tenants petitioners are granted six months time to vacate provide that:

(1) Within one month from today they file an undertaking before the prescribed authority to the effect that on or before the expiry of period of six months, they will willingly vacate and handover possession of the property in dispute to the landlord- respondent.

(2) For this period of six months, which has been granted to the petitioners to vacate they are required to pay Rs.3000/- (at the rate of Rs.500/- per month) as damages for use and occupation.  This amount shall also be deposited within one month before the prescribed authority and shall immediately be paid to the landlord-respondent.

It is further directed that in case undertaking is not filed and deposit of Rs. 3000/- is not made within one month before the prescribed authority then tenants shall be liable to pay damages at the rate of Rs.1500/- per month since after one month till the date of actual vacation.

Similarly if after filing the aforesaid undertaking and depositing Rs.3000/- the accommodation in dispute is not vacated on or before six months then damages for use and occupation shall be payable at the rate of Rs.1500/- per month since after six months till actual vacation.

Waqar

Dated: 6.2.2006


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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