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Amar Nath v. The District Judge, District Gorakhpur & Others - WRIT - A No. - 42844 of 2007 [2007] RD-AH 15285 (11 September 2007)

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Court No.07

Civil Misc. Writ Petition No.42844 of 2007

Amar Nath Vs. District Judge, Gorakhpur and others

Hon'ble S.U. Khan, J.

Heard Sri K. Ajit, learned counsel for the petitioner and Sri K.M. Tripathi, learned counsel for the landlady respondent No.3 Smt. Munni Devi, who filed his Vakalatnama yesterday.

This is tenant's writ petition arising out of eviction/ release proceedings initiated by landlady respondent No.3, Smt. Munni Devi against petitioner and Pardeshi Lal, respondent No.4 on the ground of bona fide need under Section 21 of U.P. Urban Buildings (Regulation of Letting, Rent & Eviction) Act, 1972 in the form of P.A. Case No.15 of 2002 on the file of Prescribed Authority, Gorakhpur. Property in dispute is a shop. Release application was filed by the landlady for settling her sons in business. The release application was allowed by Prescribed Authority on 18.02.2006 . Against the said judgment and order, tenants, i.e. petitioner and respondent No.4, filed Rent Appeal No.03 of 2006. District Judge, Gorakhpur dismissed the appeal on 25.08.2007, hence this writ petition.

One of the arguments raised by the tenant was and is that husband of landlady was carrying on business and their sons could join the said business. Both the courts below rightly repelled the said contention. Supreme Court in AIR 2003 SC 780 "Sushila v. IInd Addl. District Judge, Banda" has held that every landlord and every adult member of his family is entitled to do independent separate business.

Both the courts below also found that tenant was also carrying on business from his residential house, which was at a distance of 150 steps from the shop in dispute and that tenant's father Rangi Lal was having a tenanted shop almost adjacent to the shop in dispute and tenant was also carrying on business therefrom. In respect of comparative hardship, courts below also held that tenant did not show that he made any efforts to search alternative accommodation. Supreme Court B.C. Bhutada vs. G.R. Mundada, A.I.R. 2003 S.C. 2713 has held that if no such effort is made, then balance of hardship tilts against the tenant.

I do not find any error in the concurrent findings on bona fide need and comparative hardship.

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

Tenant-petitioner is granted nine months' time to vacate provided that :-

1. Within one month from today tenant files an undertaking before the Prescribed Authority to the effect that on or before the expiry of aforesaid period of nine months he will willingly vacate and handover possession of the property in dispute to the landlord-respondent.

2. For this period of nine months,which has been granted to the tenant-petitioner to vacate, he is required to pay Rs. 4500/-( at the rate of Rs. 5,00/- per month) as rent/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-respondent.

In case of default in compliance of any of these conditions tenant-petitioner shall be evicted through process of Court after one month. It is further directed that in case undertaking is not filed or Rs.4500/- are not deposited within one month then tenant-petitioner shall be liable to pay damages at the rate of Rs. 1,000/- per month since after one month till the date of actual vacation.

Similarly, if after filing the aforesaid undertaking and depositing Rs. 4500/- the accommodation in dispute is not vacated on the expiry of nine months then damages for use and occupation shall be payable at the rate of Rs.1,000/- per month since after nine months till actual vacation.




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