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RADHA MOHAN versus D.J. KANPUR AND OTHERS

High Court of Judicature at Allahabad

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Radha Mohan v. D.J. Kanpur and others - WRIT - A No. - 13741 of 1982 [2007] RD-AH 15098 (6 September 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).

HIGH COURT OF JUDICATURE AT ALLAHABAD

"Reserved"

Civil Misc. Writ Petition No. 13741 of 1982.

Radha Mohan

Versus

District Judge, Kanpur and others.

...............

Hon'ble Anjani Kumar, J.

By means of present writ petition under Article 226 of the Constitution of India, the petitioner-tenant has challenged the order dated 13th September, 1982, passed by the District Judge/Appellate Authority under the provisions of the U.P. Act No. XIII of 1972 (here-in-after shall be referred to as 'the Act'), whereby the appellate authority dismissed the appeal filed by the petitioner-tenant against the order dated 26th September, 1981, passed by the Prescribed Authority by which the Prescribed Authority allowed the release application filed by the landlord.

The facts of the present case as emerged out from the pleadings of the parties and the evidence adduced by them before the authorities below are that the landlord-contesting respondents filed an application release case no. 13 of 1980 under section 21 (1)(a) of 'the Act' before the Prescribed Authority on the ground that the contesting respondent no.4 is the landlord of the accommodation in question i.e. premises no. 71/41, Sutar Khana, Kanpur, which fallen in the share of landlord under the mutual partition among his brothers. The petitioner is tenant of the portion of accommodation in question, which fallen in the share of the landlord-respondent no.4, consists of two rooms and that the landlord is residing in different house and i the same building, which has fallen down/collapsed as such the landlord does not have any place to live. He therefore prayed for the release of the aforesaid accommodation in question in his favour, as the landlord bona fide requires the same and the tilt of the comparative hardship is also in favour of the landlord.

The petitioner-tenant filed written statement to the release application filed by landlord-respondent no.4 before the Prescribed Authority and denied the allegation made therein that the contesting respondent is the landlord of the accommodation in question. The petitioner-tenant set up the case before the Prescribed Authority that in fact it is the Kanpur Development Authority, Kanpur, which is the landlord of the accommodation in question by virtue of acquisition of land, therefore the application filed by the contesting respondent no.4 is not maintainable and is liable to be dismissed. The petitioner-tenant admitted that he has built-up a house bearing house no. 69/211, Dana Khori, Kanpur in the year 1980, but the same is not available for residence of the tenant, as the house at Dana Khori has been built-up after borrowing loan and the tenant will not be able to get the possession over the same, unless he pays back the amount of loan.

The Prescribed Authority after exchange of the pleadings and the evidence adduced by the respective parties has decided the matter holding that the plea taken by the petitioner-tenant that the contesting respondent no. 4 is not the landlord of the accommodation in question, cannot be accepted, as the tenant itself has been paying rent to the aforesaid landlord after receiving the notice from the present landlord with regard to partition among the brother of the landlord of the accommodation that the accommodation in question has fallen in the share of the landlord-respondent no.4, thus the argument advanced on behalf of the tenant-petitioner has been rejected by the Prescribed Authority. On the question of bona fide need of the landlord, the Prescribed Authority has recorded a finding that the landlord bona fide requires the accommodation in question. Coming to the comparative hardship, the Prescribed Authority has held that since the tenant has already built-up a house then he has an alternative accommodation with him where he can comfortably shift and thus the Prescribed Authority arrived at the conclusion that the landlord has made out a case for release of the accommodation in question in his favour and the tilt of the comparative hardship is also in favour of the landlord. The Prescribed Authority therefore vide order dated 26th September, 1981 allowed the release application filed by the landlord and directed the release of the accommodation in question in favour of the landlord.

The petitioner-tenant aggrieved by the order dated 26th September, 1981 passed by the Prescribed Authority preferred an appeal being rent appeal no 342 of 1982 before the District Judge/Appellate Authority under 'the Act'. The Appellate Authority vide order dated 13th September, 1982 dismissed the appeal filed by the petitioner-tenant. The appellate authority affirmed the findings regarding bona fide need and comparative hardship recorded by Prescribed Authority. Thus, this writ petition.

Before the Appellate Authority the petitioner-tenant emphasis that the accommodation in question was a Public Building and is therefore exempted from the operation of the Act under Section 21 (1)(a) of 'the Act', as the same has been acquired by the Kanpur Development Authority under the provision of the Land Acquisition Act as back as on 31st October, 1961 and the possession certificate was also issued to the Nagar Mahapalika, Kanpur, predecessor of Kanpur Development Authority. The Appellate Authority rejected the argument advanced on behalf of the petitioner-tenant that the contesting respondent is not the landlord in the following words "Un-disputedly Babu Lal was initially the landlord vis-a-vis the appellant. Babu Lal was succeeded by the applicant and the opposite parties nos. 2 to 6 being the sons. The applicant respondent averred that there had been mutual partition made among them as a result of which the premises has fallen to his exclusive share." The Appellate Authority also affirmed the finding recorded by the Prescribed Authority that the contesting respondent is the landlord to whom the petitioner-tenant was paying rent. Further the tenant submitted that so far as the accommodation in question having vested with the Kanpur Development Authority under Section 36 (1) of the U.P. Town Improvement Act on March 14, 1938. The Prescribed Authority as well as the Appellate Authority has categorically recorded a finding that on October 31, 1980, the Kanpur Development Authority issued notices to the petitioner-tenant claiming rent from the tenant and that the tenant deposited certain amount accordingly on 12th November, 1980, 28th November, 1980 and 21st April, 1981 pursuant to the acquisition by Kanpur Development Authority. It would not be out of place to mention that the petitioner is an employee of Kanpur development Authority. According to the tenant's contention that tenant deposited the rent with Kanpur Development Authority, it is significant that despite this the tenant continued to recognise the contesting respondent as the landlord and there exists relationship of landlord and the tenant. No other arguments have been advanced on behalf of the petitioner.

In view of what has been stated above, I am of the opinion that since all the arguments advanced on behalf of the petitioner-tenant are liable to be rejected, this writ petition deserves to be dismissed and is hereby dismissed. The interim order, if any, stands vacated. However, there shall be no order as to costs.

Dated:

Rks.


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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