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G.K. Vershney v. D.J. - WRIT - A No. - 22427 of 1994  RD-AH 15304 (11 September 2007)
HIGH COURT OF JUDICATURE AT ALLAHABAD
Civil Misc. Writ Petition No.22427 of 1994
Dr. Gyan Kumar Varshney and another Vs. District Judge, Aligarh and another
Hon'ble S.U. Khan, J.
This is landlords' writ petition arising out of eviction/ release proceedings initiated by them against tenants respondents M/s Highway Diesel Service on the ground of bona fide need under Section 21 of U.P. Act No.13 of 1972 [U.P. Urban Buildings (Regulation of Letting, Rent & Eviction) Act, 1972] in the form of U.P.U.B. Case No.19 of 1990 before Prescribed Authority, Aligarh. The accommodation in dispute is situate on the ground floor in which tenants respondents are carrying on business of selling diesel and motor parts etc. The area of the accommodation in possession of the tenant on the ground floor is about 1700 squire feet and on the ground floor a small room is in possession of the landlord. Entire property is shown in the map annexed with release application, copy of which is Annexure-1 to the writ petition. Rent is Rs.1225/- per month. Landlords' case was that Dr. Gyan Kumar Varshney-petitioner No.1 was qualified orthopaedic surgeon, having M.B.B.S. degree as well as diploma and degree in M.S.; that he had worked as a doctor in Lady Harding Medical College till 1981. Thereafter, he went to Lybia and worked as surgeon there till 1984. Thereafter, he went to Saudi Arabia and worked there in King Faisal Hospital till 1986 and thereafter he worked in M.S. Hospital, Aligarh. Meanwhile, in 1985 he purchased the property in dispute with a view to establish a Nursing Home. It was further pleaded that in 1989, he left the job, started his medical practice and opened a clinic on the first floor of the accommodation in dispute. A small room on the ground in possession of the landlord was being used as sort of reception. In the release application, it was further pleaded that the patients were finding extreme difficulty in ascending the stairs for reaching the clinic on the first floor as orthopaedic patients naturally feel trouble in ascending the stairs, particularly those patients who have trouble in the legs and that it was adversely affecting the practice of landlord petitioner No.1. Prescribed Authority allowed the release application through judgment dated 15.09.1993. However, landlord was directed to pay Rs.14,700/- as compensation to the tenants. Against the said judgment and order, tenants filed U.P. U.B. Appeal No.19 of 1993. District Judge, Aligarh allowed the appeal through judgment and order dated 15.04.1994 and dismissed the release application of the landlords. The said judgment has been challenged through this writ petition.
On the application of the tenant, Prescribed Authority had appointed advocate Commissioner to inspect the spot and give the report. Commissioner gave report on 14.09.1992, copy of which is Annexure-5 to the writ petition. In the report, he mentioned that patients of the landlord doctor were standing on the road and suffering great inconvenience due to shortage of accommodation on the ground floor. Tenant filed application for cross-examination of advocate Commissioner, which was rejected by the Prescribed Authority. Appellate Court held that the said application of the tenants was wrongly rejected. It is very strange that while deciding the question as to whether the tenant was actually using the tenanted accommodation or not, a lot of reliance was placed on the advocate commissioner's report and it was held by Appellate Court on the basis of the said report that tenant was in fact using the said accommodation.
Tenants contended and Appellate Court willingly accepted that the accommodation in dispute being situate on G.T. Road near Bus-Station was not, at all, suitable for being used as clinic of doctor due to noise and crowd around the place. This reasoning is utterly fallacious. Landlord is undisputedly having his clinic on the first floor. Further, suitability is to be adjudged from the point of view of the landlord. Moreover, this question could be relevant only if at another place, which, according to the tenant could be more suitable, landlord was having available with him another accommodation. Accordingly, question of suitability was utterly redundant. A clinic on the ground floor particularly of an orthopaedic surgeon is certainly much more beneficial than a clinic on the first floor. Normally hospitals or Nursing Homes are situate either on the ground floor or on ground floor as well as on upper floors in which case apart from stairs, slopes are also provided for carrying the patients on wheel chairs or stretchers to the upper floors.
Accordingly, in my opinion, landlord fully proved his bona fide need. Finding of the Prescribed Authority, in this regard, was perfectly legal and contrary finding of the Appellate Court is utterly illegal and liable to be set aside.
Learned counsel for tenant respondent has argued that no reliance could be placed upon advocate Commissioner's report in so far as it supported the case of the landlord as tenant's application for cross-examination of advocate Commissioner was wrongly rejected. Even if this argument is accepted, it will not make any difference. Even if advocate Commissioner's report is completely discarded from consideration still on the basis of other evidence bona fide need was fully proved. Tenant admitted that on the first floor, landlord was having his orthopaedic clinic and on the ground floor he had only a small room in his possession. This admission fully proved the need of the landlord for the ground floor accommodation to shift/ extend his clinic. Thereafter, no other evidence was required.
As far as comparative hardship is concerned, as pointed out by the landlord, other accommodations were available to the tenant to be taken on rent. However, the version of the tenant that other accommodations were not suitable for his business, was accepted as gospel truth by the Appellate Court. If tenant can get another accommodation, then the mere fact that the same is slightly less suitable than the tenanted accommodation in question cannot be a ground to hold that tenant would suffer greater hardship in case of eviction.
In view of the above, findings of the Appellate Court in respect of bona fide need and comparative hardship are utterly erroneous in law and are quashed.
Accordingly, writ petition is allowed. Judgment and order dated 15.09.1993 passed by the Appellate Court is set aside and judgment and order dated 15.09.1993 passed by the Prescribed Authority is restored.
Tenants respondents are granted six months time to vacate provided that :-
1.Within six weeks from today they file an undertaking before the Prescribed Authority to the effect that on or before the expiry of aforesaid period of six months they will willingly vacate and handover possession of the property in dispute to the landlords-petitioners.
2.For this period of six months,which has been granted to the tenants-respondents to vacate, they are not required to pay anything. Rent for this period shall be treated to be sufficient compensation in terms of second proviso to Section 21 of the Act. The amount of Rs.14,700/- directed to be paid by landlord to the tenant by the order of the Prescribed Authority need not be paid.
In case undertaking is not filed as aforesaid, then tenants-respondents shall be evicted through process of Court after six weeks.
It is further directed that in case undertaking is not filed as aforesaid then tenant-respondents shall be liable to pay damages at the rate of Rs.7500/- per month since after six weeks till the date of actual vacation.
Similarly, if after filing the aforesaid undertaking the accommodation 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.7500/- per month since after six months till actual vacation.
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