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Raghubar Dayal v. Xth Addl.D.J. - WRIT - A No. 23382 of 1991 [2007] RD-AH 11839 (12 July 2007)


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).


                                                                                                     Court no. 7

Civil Misc. Writ Petition No. 23382 of 1991

 Raghubar Dayal                                                         Petitioner


The Xth Addl. District & Sessions Judge,Agra and another.



Hon'ble Rakesh Tiwari, J

 Heard learned counsel for the parties and perused the record.

         This is landlord's petition.  He moved an application under Section 21(1)(a) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as ''U.P. Act No. XIII of 1972') before the Prescribed Authority, Agra for release of the disputed shop situate in building no. 11/110 at Chillipra, Shahganj, Agra under the tenancy of respondent no.2 on the ground that he has a big family and the residential house is not enough to accommodate all the family members of the landlord; that one son of the petitioner is also running a clinic in the aforesaid house, hence the need of the petitioner is bonafide and pressing. The aforesaid application was registered as P.A. Case No. 57 of 1996.

         The release application was contested by the respondent-tenant by filing written statement denying the plaint allegations stating inter alia that the petitioner landlord's son is running his clinic in his residential house and that the residential building of the landlord is sufficient to accommodate all his family members hence, bonafide need and comparative hardship of the respondent are greater than the petitioner landlord.

           After appreciation of documentary and oral evidence, the Prescribed Authority allowed the release application of the petitioner vide judgment dated 18.7.89 holding the bonafide need and comparative hardship of the petitioner landlord greater than the respondent tenant and directed him to vacate the shop in dispute within three months from the date of order.

       Aggrieved by the judgment of Prescribed Authority, the respondent-tenant preferred Rent Control Appeal No. 44 of 1989 on the ground that the son of the petitioner landlord is running his clinic in his residential house and his need is extinguished. The appeal was allowed by respondent no. 1, the Xth Addl. District Judge, Agra by the impugned judgment dated 10.4.1991.

Counsel for the petitioner submits that admittedly, the tenant has residential house available to him and on this ground alone the judgment of the Prescribed Authority ought to have been upheld by the lower Appellate Court but it has committed material illegality in allowing the appeal.

          Per contra, counsel for the respondent-tenant has submits that apart from the fact that the landlord has enough accommodation in his possession to accommodate all the members of his family got alternate shop in his possession and his son is also running his clinic in his residential house hence, his need is not bona fide and the lower Appellate Court has rightly allowed the appeal of the tenant.

The counsel for the respondent tenant has relied upon the following findings of the Appellate Court.

            ^^pwwWfd vihykFkhZ dh nqdku cktkj esa fLFkr gS ,slh ifjfLFkfr esa izR;FkhZ us tks izkFkZuk Ik= esa ;g fy[kk gS fd mls nkeksnj flag Hkou esa nqdku gS fl} djuk pkfg;s ijUrq U;k;ky; esa dksbZ dFkkud vius izkFkZuk Ik= ds leFkZu esa izLrqr ugha fd;k gS fd vihykFkhZ ds ikl dksbZ nqdku [kkyh gS A tgkW ij og LOFkkukUrfjr dj ldrk gS A bl izdkj ls bl n`f"Vdks.k ls Hkh eSa ;g ikrk gwW fd vihykFkhZ dks ;fn fookfnr nqdku dks [kkyh djus dk vkns'k fn;k tkrk gS rks mls [;kfr ds vk/kkj ij vkfFkZd dfBukbZ gksxh A     +----------

       eSus nksuks Ik{kksa }kjk izLrqr bu fof/kd fl}kUrksa ls ;g ikrk gwW fd U;k;ky; dks ;g fuLrkfjr djuk gS fd D;k edku ekfyd dh ln~Hkkoukiw.kZ vko';drk gS A pwWfd vihykFkhZ }kjk ;g lk{; U;k;ky; ds le{k j[kk x;k gS ftldh iqf"V Lora= lk{kh us fd;k gS fd y?kq iasafVx ds uke ls og edku esa igys ls gh dk;Z dj jgk gS vkSj tc og lsokjr Fkk rks og ;g dk;Z djrk Fkk A ,slh ifjfLFkfr esa eSa bl fu"d"kZ ij igwWprk gwW fd p`~~fd vihykFkhZ ds ikl dksbZ nwljh nqdku ugha gS A tgkW og vius O;kikj dks LFkkukUrfjr dj ldrk gS A bl vk/kkj ij eSa ;g Hkh ikrk gwW fd fo}ku fufgr vf/kdkjh us nqdku eqDr djus dk vkns'k ikfjr fd;k gS og lgh ,oa U;k;ksfpr ughaa gS A

vihykFkhZ ds fo}ku vf/koDrk us mDr rdZ dh iqf"V esas esjk /;ku f'koukFk JhokLro izfr dkyhpju vkfn 1990 bykgkckn jsUV dslst dh vksj vkd`"V fd;k ftlesa ekuuh; U;k;ky; us ;g fu/kZkfjr fd;k gS fd&

      ^^dksbZ O;fDr fdlh nqdku esa 42 o"kZ ls viuk O;kikj dj jgk gks rks mlls nqdu [kkyh djkuk mfpr ugha gS A^^


The Prescribed Authority has held that the tenant has a big residential house and he has sufficient source of income. The relevant finding of the Prescribed Authority is as under:-

             ^^ blds foijhr Ik=koyh ij tks vfHkys[k fo|eku gS mlds voyksdu ls ;g ckr izdk'k esa vkrh gS fd foi{kh ds ikl izkFkhZ ds fdjk;s dh nqdku ds vykok ,d cgqr gh vkyh'kku Hkou gS o foi{kh dh vkfFkZd fLFkfr cgqr gh vPNh gS A ^^

The question of bonafide need and comparative hardship have also been decided in favour of the petitioner landlord holding that the family of the respondent tenant is small than the family of the petitioner landlord and the respondent has his own residential house and he has also got an alternative shop. The relevant portion of the finding is as under:-

          ^^ blls ;g ckr izdk'k esa vkrh gS fd foi{kh dk ifjokj cgqr NksVk gS vkSj nqdku ij flQZ og mldk yMdk cSBrk gS blds foijhr izFke n~"V;k voyksdu ls izkFkhZ dk ifjokj T;knk cMk utj vkrk gS A og foi{kh dh vis{kk mldh vko';drk T;knk izrhr gks jgh gS A bl rkSj Ik=koyh ij fo|eku vfHkys[k o lk{; bl ckr ds |ksrd gS fd izkFkhZ dh vko';drk rqyukRed dfBukbZ foi{kh ls T;knk gS A ^^


           The admitted fact is that the tenant has his own residential house and he has also got an alternative shop in his possession, hence in view of explanation (i) to Section 21(1)(a) of U.P. Act No. XIII of 1972, which provides that even if any of member of tenant's family has acquired an alternate accommodation, the tenant cannot contest the claim of need of the landlord on the ground that there is no bona fide need of the landlord. Explanation (i) to Section 21(1) of the Act No. XIII of 1972 automatically applies to the facts of the instant case, which is as under :-

"Explanation- In the case of a residential building-

(i) where the tenant or any member of his family who has been normally residing with him or is wholly dependent on his has built or has otherwise acquired in a vacant state or has got vacated after acquisition a residential building in the same city, municipality, notified area or town area, no objection by the tenant against an application under this sub-section shall be entertained."

          In my opinion, the approach of the Appellate Court is not correct. Admittedly, the tenant has his own residential building and has also got an alternative shop. The son of the petitioner landlord is running his clinic in his residential house whereas for running a clinic, which is a profession, requires a shop. The findings of the Appellate Court that the bonafide need and comparative hardship of the tenant are greater than the petitioner landlord are against the evidence on record and are not sustainable.

In the circumstance, comparative hardship shall be suffered by the landlord. The Prescribed Authority rightly allowed the release application of the landlord and the appellate Court has committed a gross illegality in allowing the appeal on the grounds.

   For the reasons stated above, the petition succeeds and is allowed and the impugned order dated 10.4.91 passed by respondent no. 1 in Rent Control Appeal No. 44 of 1989 is quashed and the respondent-tenant is directed to hand over peaceful vacant possession of the shop in dispute to the petitioner-landlord within a period of three months from today failing which, he shall be liable to be evicted by coercive process, in accordance with law with the aid of local Police. No order as to costs.

Dated 11.7.2007




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