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Dr. Smt. Anjana Gupta v. Addl./Special Judge (C.B.I.) Ghaziabad & Others - WRIT - A No. 18809 of 2003 [2006] RD-AH 6525 (24 March 2006)


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Civil Misc. Writ Petition No. 18809 of 2003

Dr. Anjana Gupta Versus Additional District Judge/ Special Judge, Ghaziabad and others.

Hon'ble S.U.Khan J

This is tenant's writ petition arising out of eviction/ release proceedings initiated by the landlords respondents No.3 to 5 Smt Duropadi Gupta and others on the ground of bonafide need under section 21 of U.P. Act No.13 of 1972 in the form of P.A Case No. 20 of 1999 on the file of prescribed authority, Ghaziabad.

According to the landlord building in dispute was being used by the tenant (who is a doctor) as clinic however she and her doctor husband had constructed a nursing home and they were carrying on their medical practice there from and on the first floor of the nursing home they had constructed their residential house. It was also stated that initially tenant was posted as Doctor in Modi Hospital, Modi Nagar, Ghaziabad however she resigned in the year 1998 and took on rent the accommodation in dispute only as a temporary measure until she and her husband constructed their own nursing home. It was also alleged that the nursing home of the tenant was situate at Govindpuri in front of Post Office, G.T.Road, Modi Nagar, Ghaziabad known by the name of Welcome Nursing home and it was three storied building including basement. It was also pleaded by the landlords that landlord applicant No.1/ respondent No.5 Devendra Prakash Gupta was doing his wholesale business of Gaurav Medical Agencies in a portion which was adjacent to the front portion in tenancy occupation of tenant petitioner. It was further alleged that the portion in occupation of Devendra Prakash Gupta was having a frontage of only five feet while rest of the frontage of about seven feet was occupied by the tenant. The portion in possession of Devendra Prakash Gupta towards backside was about seven feet wide. The portion in tenancy occupation of petitioner consists of about six or seven feet frontage then a passage of about three feet and thereafter a big portion of about 20 feet length and breadth except a staircase. It was also alleged that Devendra Prakash Gupta was carrying on the business of wholesale of medicines for which accommodation in his possession was quite insufficient. Map of the accommodation in dispute has been supplied during arguments by learned counsel for the landlord which has not substantially been denied by the learned counsel for the tenant. It appears that it was part of release application. In the shop at G.T. Road towards north landlord respondent No.4 Budh Prakash Gupta is carrying on business of medical store.

Tenant did not deny construction of nursing home. Tenant did not bring on record the dimensions of the nursing home and accommodation available therein. Prescribed authority/ III Additional Civil Judge (S.D), Ghaziabad through judgment and order dated 5.8.2002 allowed the release application holding the need of the landlords to be bonafide and also deciding the question of comparative hardship in their favour. Against the said judgment and order tenant filed R.C Appeal No. 123 of 2002. A.D.J / Special Judge (C.B.I), Ghaziabad through judgment and order dated 20.3.2003, dismissed the appeal hence this writ petition.

I do not find least error in the concurrent findings of bonafide need and comparative hardship recorded by both the courts below in favour of the landlords. Landlord respondent No.3 Devendra Prakash Gupta is doing wholesale business of medicine from a very small portion having a frontage of only about five feet. Tenant has got constructed his own nursing home which is quite big. The allegation of tenant that she is still using the accommodation in dispute as clinic has rightly been disbelieved by both the courts below. If a private Doctor has got his own nursing home then there is no sense of keeping a clinic away from there.

During arguments it was suggested by the Court that the parties might consider to compromise the matter. Landlord offered that at the back portion he could provide an accommodation of 8 feet / 10 feet to the tenant however tenant insisted that she must have the frontage on G.T. Road. I do not see any reason to provide any portion in the front to the tenant. The dimension of frontage in possession of the tenant as well as landlord respondent No.5 D.P.Gupta is about 12 feet out of which, portion in possession of D.P.Gupta is only about five feet. Moreover as tenant herself has constructed her own nursing home hence there is no necessity to provide alternative accommodation to her. In any case the alternative offer of the landlord was rejected by the tenant hence there is no occasion to consider the same. It may be mentioned that both the courts below awarded two years rent as damages to the tenant in terms of second proviso to section 21(1) of U.P Act No. 13 of 1972. Landlord has deposited Rs. 24000/- before the prescribed authority in compliance with the said direction (Rent is Rs. 1000/- per month).

Accordingly there is no merit in the writ petition hence it is dismissed.

Tenant petitioner is granted six months time to vacate provided that:

(1) Within one month from today she files an undertaking before the prescribed authority to the effect that on or before the expiry of period of six months she 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 petitioner to vacate she is required to pay Rs.15000/- (at the rate of Rs.2500/- 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.

It is further directed that in case undertaking is not filed or amount of Rs. 15000/- is not deposited within one month then tenant petitioner shall be liable to pay damages at the rate of Rs.5000/- per month since after one month till the date of actual vacation.

Similarly if after filing the aforesaid undertaking and depositing Rs. 15000/-, the property in dispute is not vacated on the expiry of six months then damages for use and occupation shall be payable at the rate of Rs.5000/- per month since after six months till actual vacation.

Half of the amount of Rs. 15000/- deposited under interim order dated 1.5.2003 shall be paid to the landlords and half shall be returned to the tenant or it may be adjusted towards the amount required to be deposited by the tenant under this judgment.




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