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Yogesh Chand Saxena v. Viiith Addl. District & Sesssions Judge & Others - WRIT - A No. 10711 of 1994  RD-AH 5355 (6 March 2006)
Civil Misc. Writ Petition No.10711 of 1994
Yogesh Chandra Sharma Vs. VIII A.D.J., Bulandshahar and others
This is tenant's writ petition arising out of eviction/release proceedings initiated by landlords-respondents 2 to 4 Ramesh Chandra and others on the ground of bonafide need under Section 21 of U.P. Act No.13 of 1972 in the form of R.C. case no.3 of 1989 on the file of Prescribed authority/Munsif, Anoopshahar District Bulandshahar property in dispute is a shop rent of which is Rs.120/- per month. Tenant is/was carrying on medical practice therefrom. In the release application it was stated that shop in dispute was required for Sunil Kumar and Ajeet Kumar sons of landlord-applicant no.1 Ramesh Chandra who were unemployed. Prescribed authority through judgment and order dated 21.11.1991 rejected the release application. Against the said judgment and order landlords respondents filed R.C. appeal no.44 of 1991. VIIIth A.D.J., Bulandshahar through judgment and order dated 8.2.1994 allowed the appeal set aside judgment and order of the Prescribed authority and allowed the release application after awarding two years' rent as compensation to the tenant hence this writ petition by the tenant.
According to the landlords tenant had constructed a Nursing Home just in front of the shop in dispute accross the road. Tenant pleaded that he had constructed a residential double storied house. In the release application it was stated that the sons of landlord-respondent no.1 intended to start the business of selling building material from the shop in dispute. Prescribed authority held that no specific building material proposed to be sold from the shop in dispute was mentioned. Prescribed authority further held that the sons of landlord Ramesh Chandra were helping their father in his business and Ramesh Chandra had some agricultural land also. Supreme Court in Shusheela Vs. A.D.J. 2003 S.C. 780 and A. Kumar Vs. Mustaquim A.I.R. 2003 S.C. 532 has held that no landlord or his family member can be compelled to participate in the family business. Prescribed authority also held that just after passing of the examination by Sunil Kumar and Ajeet Kumar release application was filed hence need was not bonafide. According to the Prescribed authority unless Sunil Kumar and Ajeet Kumar failed to get any service in two or three years after passing of the examination they could not be said to be un-employed. The reasoning is quite strange.
In respect of allegation of the landlord that just across the road tenant had constructed double storied house on the ground floor of which he was running Nursing Home, Prescribed authority held that landlord had not given nummber of patients which were being received by the tenant in the said Nursing Home and extent of his practice therefrom. Tenant admitted that he had got constructed a double storied house. Even if he was not actually carrying on his medical practice and Nurshing Home, he could very well start his practice and Nursing Home from the said accommodation.
In my opinion the findings recorded by the trial court were utterly erroneous. The appellate court rightly reversed the said finding. On the facts found even by the trial court/Prescribed authority it could not be said that need of the landlord was not bonafide.
During arguments learned counsel for the tenant-petitioner has mainly argued that another shop adjoining to the shop in dispute was available to the landlord. Municipal assessments of the shop in dispute and the adjoining shop have been filed as Annexure-11. In the shop in dispute Yogesh Chandra, the petitioner is shown to be an occupant while in the adjoining shop no name of occupier is given. The contention of the learned counsel for the respondent is that the said shop is in tenancy occupation of another tenant since long. Merely because in the municipal record name of the occupants is not mentioned, it cannot be taken as conclusive proof of occupation of the said shop by the owner landlord. Even in the said assessment record it was not shown that owner was occupying the shop in dispute. In respect of the said shop the allegation of the landlord was that since long it was in possession of another tenant Mahesh Chandra.
Appellate court also found that the shop in dispute was more suitable for the proposed business of building material. Appellate court found that tenant had constructed Nurshing Home of 21 feet x 21 feet which was across the road. For this finding reliance was placed upon the map passed by the local authority for constructing the Nurshing Home and the photographs filed before the Prescribed authority. In the permission granted for making construction to the tenant it was mentioned that permission was being granted for constructing clinic and Nurshing Home. From the shop in dispute also tenant was carrying on his clinic. Appellate court rightly held that need of the landlord was bonafide and as tenant had constructed his Nurshing Home across the road hence balance of hardship lay in favour of the landlord. Even if for the sake of the argument it is assumed that adjoining shop was also available to the landlord, it will not make much difference as need has been set up for two sons of landlord Ramesh Chandra.
Accordingly, I do not find least error in the judgment and order passed by the lower appellate court.
Writ petition is dismissed.
However, tenant-petitioner is granted six months' time to vacate provided that within one month from today he files an undertaking before the Prescribed Authority concerned to the effect that on or before expiry of six months he will willingly vacate and hand over possession of the accommodation in dispute to the landlords-respondents. For this period of six months petitioner is required to deposit before Prescribed authority Rs. 6000/- at the rate of Rs..1000/- per month as damages for use and occupation of the accommodation in dispute for immediate payment to the landlords-respondents. This amount shall also be deposited within one month. In case of default in compliance of any of these conditions, tenant-petitioner shall be evicted immediately after one month through process of court.
It is further directed that in case undertaking is not filed or Rs. 6000/- are not deposited within one month then tenant-petitioner shall be liable to pay damages at the rate of Rs. 2000/- per month since after one month till the date of actual vacation.
Similarly, if after filing the aforesaid undertaking and depositing the aforesaid amount within one month the accommodation in dispute is not vacated in six months then damages for use and occupation shall be payable at the rate of Rs. 2,000/-per month since after six months till actual vacation.
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