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Smt. Kelawati v. The Special Judge (E.C.Act), Moradabad And Others - WRIT - A No. 5099 of 1999 [2006] RD-AH 6980 (30 March 2006)


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Civil Misc. Writ Petition No. 5099 of 1999

Smt. Kelawati Versus Additional District Judge/ Special Judge, and others.

Hon'ble S.U.Khan J

This writ petition filed by the landlady and arising out of release proceedings under section 21 of U.P. Act No.13 of 1972 was allowed ex-parte on 26.10.2005 as on the said date no one had appeared on behalf of tenant respondent No.3 Bhagwan Das. Thereafter rehearing application was filed stating therein that about a month before the decision dated 26.10.2005 tenant had died. Restoration application was allowed and judgment dated 26.10.2005 was set-aside. Substitution application has also been allowed.

Heard learned counsel for the parties.

Release application was registered as case No. 3 of 1991. Prescribed authority/ Civil Judge (JD), Amroha district Moradabad dismissed the release application on 29.9.1995. Against the said judgment and order, R.C Appeal No. 36 of 1995 was filed which was dismissed on 29.9.98 by A.D.J / Special Judge (E.C Act), Moradabad hence this writ petition.

Property in dispute is a shop. Landlady pleaded that she required the shop in dispute for settling his eldest son Rajendra Kumar in business who had passed M.Sc three years before however he was out of job. In the release application it was stated that landlady had two more sons who were studying in B.A and class VII.

During pendency of appeal tenant filed an affidavit on 20.8.1998 stating therein that a shop in which husband of the landlady was doing business had been vacated by him. It was also stated therein that another tenant of the landlady i.e. Mahfooz Ahmad had also vacated the shop in his tenancy occupation in July 1998. Landlady filed counter affidavit to the said affidavit and stated that the shop vacated by her husband was being used by her other son Devendra Kumar and she proposed to settle her third son Satyendra Kumar in business from the shop vacated by Mahfooz Ahmad.

Lower appellate court held that if need for Rajendra Kumar the eldest son had been bonafide then he would have been settled in the business in one of the two shops which became available to the landlady during pendency of appeal. The lower appellate court committed an error of law in recording the said finding. Landlady is fully entitled to settle all her sons in separate business. When release application was filed, two of her sons were studying. There was no sense in settling eldest son Rajendra Kumar in one of the shops becoming available during pendency of appeal and filing fresh release application in respect of shop in dispute setting up the need of any of the other two sons. When release application for eldest son had already been filed and was sub-judice in appeal landlady was fully authorized to settle her other sons in the other shops becoming available. Landlady has got three sons hence she requires three shops to settle them in business. It is wholly immaterial that which shop is occupied by which son. Nothing was brought on record to show that landlady had three shops available to her in vacant state.

On 31.1.2006 when judgment was reserved in this petition after hearing learned counsel for both the parties, Sri V.K.Goyal learned counsel for the tenant respondent stated that the entire case of the tenant had been pleaded in the affidavit filed along with restoration/ rehearing application. In Para 6 of the said affidavit, it has been stated that during pendency of the writ petition landlady petitioner removed the wall behind one shop available to her and the room lying behind the said shop was included in the shop hence it became quite big and in this shop two sons of the landlady Devendra Kumar and Rajendra Kumar were doing business of mobile phones. Along with the said affidavit, map of the total accommodation of the landlady residential as well as commercial has also been annexed as annexure 1 A. If due to paucity of accommodation, landlady is compelled to convert residential room to commercial use, the need for commercial accommodation stands proved beyond any doubt. In case shop in dispute had been available to the landlady then she would not have converted residential room into commercial accommodation. In any case even according to the tenants themselves in the big shop formed by combining one residential room with the front shop, two sons of the landlady are doing business. It has been held by the Supreme Court in Sushila Vs. A.D.J AIR 2003 SC 780 and A.Kumar Vs. Mustaqim AIR 2003 SC 532 that each and every adult member of the landlords family is entitled to separate and independent business and no such member can be compelled to participate in the business carried out by his father or brother.

Accordingly I find that the judgments of both the courts below in respect of bonafide need are erroneous in law. Landlady fully proved her bonafide need. The assertion of the tenant in Para 6 of the affidavit filed along with restoration/ rehearing application fully supports the case of the landlady. In the said Para actually the need of the landlady has been admitted.

In respect of comparative hardship firstly tenant did not show that he made any efforts to search alternative accommodation after filing of the release application hence balance of hardship tilts against him; secondly prescribed authority found that one of the sons of the tenant (now one of the tenants himself) was doing business in Mohalla Mandi Chowk. The finding of comparative hardship has also therefore to be decided against the tenant.

Accordingly I find that judgment and order passed by the courts below on both the aspects i.e. bonafide need and comparative hardship are erroneous in law.

After discussing several authorities of the Supreme Court I have held in Mohd Arif Versus A.D.J 2005(2) ARC 793 that when both the courts below have rejected the release application and writ court finds the judgments to be erroneous in law, it is not always necessary to remand the matter to court below. In suitable cases particularly when the matter is pending for long, final relief may be granted to the landlord in writ petition itself. In the said authority I had particularly placed reliance upon an authority of the Supreme Court reported in G.C.Kapoor Vs. N.K.Bhasin AIR 2002 SC 200 where release application was rejected by all the three courts still Supreme Court out rightly allowed the release application without remanding the mater.

Accordingly Writ petition is allowed. Judgments and orders passed by the courts below are set-aside. Release application of the landlord is allowed.

Tenants respondents are granted six months time to vacate provided 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 landlady- petitioner.

(2) For this period of six months, which has been granted to the respondents 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 landlady-petitioner.

It is further directed that in case undertaking is not filed or amount of Rs. 3000/- is not deposited  within one month then tenants respondents  shall be liable to pay damages at the rate of Rs.1000/- per month since after one month till the date of actual vacation.

Similarly if after filing the aforesaid undertaking and depositing Rs. 3000/-, 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.1000/- per month since after six months till actual vacation.




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