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Bhan Prakash v. Susheel Kharbanda And Others - WRIT - A No. 3269 of 2007 [2007] RD-AH 1253 (22 January 2007)


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   Court no. 7                                                        

          Civil Misc. Writ Petition No. 3269 of 2007

Bhan Prakash                    versus      Shusheel Kharbanda and others

Hon'ble Rakesh Tiwari,J.

Heard counsel for the parties and perused the record.

The respondents are the owner and landlords of property no.1, Sardar Patel Marg, Allahabad a portion of which was let out to the petitioner by the predecessor-in-interest Ram Lubhaya Kharbanda on monthly rent of Rs.75/-.

The landlords moved an application under Section 21(1)(a) of U.P. Act No. 13 of 1972 for eviction of the petitioner on the ground that they are owners of the disputed premises which was initially constructed by Kutchha bricks and mud but at present has been made pucca.

In the release application it was stated that the applicants having five separate business as given in the release application and Rakhi Khabanda wife of Susheel Kharbanda who is highly educated lady wants to engage herself in business to earn her livelihood and has obtained the agency for the sale of Issuzu parts and has already started business under the name and style of Kharbanda Sales which is being done in premises no.28, Nawab Yusuf Road, Allahabad.

The petitioner filed his written statement denying the need of the landlords alleging that the need set up is only a fanciful desire with no element bonafide need. He also filed an application for suitable orders on the appointment of Advocate Commissioner for inspection of the premises in dispute.

The landlords amended their release application to the effect that the building 60R/40 Nawab Yusuf Road, Allahabad belongs to the petitioner which fact was denied by the petitioner by filing his additional written statement.

The petitioner in support of his case filed affidavit (paper no. 40B) along with his application 39B stating that he is in active business having telephone connection for which bills are regularly being paid and the mark sheets of his three daughters to show that they are residing with him.

The Advocate Commissioner appointed by the Court visited the spot where he inspected the premises in possession of the petitioner and thereafter the petitioner showed him one more shop, which was locked and in the possession of the landlords but the same was not inspected by the Advocate Commissioner.

After filing of inspection report the petitioner filed his objection along with affidavit for rejecting the report of the Advocate Commissioner and for appointing Senior Advocate Commissioner for inspecting the premises.

The Advocate Commissioner filed his Inspection report. Thereafter the petitioner moved an application with affidavit in which he prayed that the Inspection Note prepared by the Advocate Commissioner be cancelled and put on record.

The Prescribed Authority directed the Advocate Commissioner to produce inspection note in Court for deciding the objection of the petitioner but the same was not produced in Court by Advocate Commissioner.

The landlords filed an application praying for rejection of the objection and for rejection of the inspection note.

The Prescribed Authority allowed the release application vide order dated 21.7.2005 holding that the bonafide need and comparative hardship of the petitioner-landlord would be greater as the tenant has acquired his own shop situate at Nawab Yusuf Road, Allahabad. The relevant portion of the finding of the Prescribed Authority is as under:-

  " mijksDr izLrj esa of.kZr rF;ksa ds vk/kkj ij U;k;ky; bl er dk gS fd Hkou la[;k&60vkj@40 uokc ;qlqQ jksM foi{kh dh fookfnr nqdku ls vftZr vk; ls cuk gS rFkk mDr Hkou foi{kh ds vkokl ,oa O;olk; ds fy;s miyC/k gS vr% foi{kh ds ikl fookfnr nqdku dk fodYi miyC/k gSA ^^

The Appellate Court vide judgment and order dated 8.1.2007 has recorded a finding that the bonafide need and comparative hardship of the petitioner-landlord would be greater as the tenant has acquired his own shop at Nawab Yusuf Road, Allahabad. The relevant portion of the finding of the Appellate Authority is as under:-

"^^&&&& bl izdkj bu lHkh ifjfLFkfr;ksa esa ;gh fu"d"kZ fudyrk gS fd Hkou la0 60vkj@40 uokc ;qlqQ jksM vihykFkhZ dh vftZr vk; ls izkIr dh x;h gS vkSj mlds iq=x.k dk uke dsoy ek= Lokeh ds #Ik esa ntZ djk;k x;k gS A eSa fo}ku voj U;k;ky; ds bl fu"d"kZ ls Hkh lger gwW fd vihykFkhZ dk vf/kdka'k ifjokj blh edku esa jgrk gS D;ksafd fookfnr ifjlj esa FkksMk cgqr lkeku Hkh ik;k x;k Fkk vkSj ,d flaaxy fcNh gqbZ csM ik;h x;h Fkh voj U;k;ky; dk ;g lEisz"ku xyr izrhr ugh gksrk fd FkksMk cgqr lkeku ek= fujh{k.k ds mnns'; ls fookfnr ifjlj esa j[ks x;s gks A esjs fopkj ls Hkou la0 60vkj@40 uokc ;qlqQ jksZM vihykFkhZ ds fy;s vkokl o O;olk; ds fy;s miyC/k gS vr% oSdfYid O;oLFkk ekStwn gS ,slh ifjfLFkfr esa nksuks fLFkfr;ksa dks /;ku esa j[krs gq, jk[kh [kjcUnk ds fy;s ifjlj dh vko';drk mfpr rFkk rqyukRed dfBukbZ vihykFkhZ dks ux.; gh gS fo}ku voj U;k;ky; us ;g lgh fu"d"kZ fudkys x;s izrhr gksrs  gS fd izR;FkhZ x.k ds ikl ,slk vU; dksbZ mfpr ifjlj miyC/k ugha gS ftlls ml ij dkjksckj lgh rjhds ls fd;k tk ldsa @

       vihykFkhz dh vksj ls ;g Hkh rdZ fd;k x;k fd fouksn dR;ky vkfn ls txg[kkyh djkdj lfoZl xSjt dk dk;Z 'kq# fd;k x;k ysfdu esjs fopkj ls lfoZl xSjst vkfn dk LFkku nqdku vkSj 'ksk #e ds fy;s LFkku ugha ekuk tk ldrk A

       mijskDr dkj.kksa ls esjs fopkj ls vihy esa dksbZ lkj ugha gS vkSj [kkfjt fd;s tkus ;ksX; gS A



;g vihy ,rn}kjk lO;; [kkfjt dh tkrh gS A

fnukad 8&1&2007                  g0 vLi"V

                            ¿  izse flag �?

                       vij ftyk tt d{k la0&2

                              bykgkckn A ^^

In view of the fact that the petitioner has acquired his own shop hence, he can not contest the claim of the landlords of their bonafide need and comparative hardship  on the analogy of explanation (i) of Section 21(1)(a) of U.P. Act No. 13 of 1972 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 him 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."

Even otherwise, both the Courts below have given concurrent findings of facts that bonafide need and comparative hardship would be greater than the petitioner.

For the reasons stated above, the writ petition fails and is dismissed.

         No order as to costs.

The counsel for the petitioner has prayed that he may be granted two months' time to vacate and handover peaceful possession of the disputed accommodation to the respondent- landlords. The prayer of the petitioner is allowed. The tenant respondent shall handover peaceful and vacant possession of the shop in dispute to the petitioner.          

Dated 22.1.2007





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