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Akhtari Bibi v. A.D.J./Special Judge & Others - WRIT - A No. - 40742 of 2002 [2007] RD-AH 15721 (19 September 2007)

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Court No.7

Civil Misc. Writ Petition No.40742 of 2002

Akhtari Bibi Vs. Additional District Judge/ Special Judge, Azamgarh and others

Hon'ble S.U. Khan, J.

Through order dated 01.12.2005 on the order sheet, service upon contesting respondents tenants has been held to be sufficient still no one has appeared on behalf of the respondents.

This writ petition arises out eviction/ release proceedings initiated by landlady petitioner against the tenants respondents on the ground of bona fide need under Section 21 of U.P. Urban Buildings (Regulation of Letting, Rent & Eviction) Act, 1972. Property in dispute is a shop, rent of which is Rs.9/- per month. This may well be described as no rent at all. Landlady stated that she had six major sons and she wanted to settle some of them in business from the shop in dispute. Release application was registered as P.A. No.13 of 1991. Prescribed Authority/ Civil Judge, Azamgarh allowed the release application on 17.07.1999. Against the said judgment and order, tenants respondents filed Misc. Appeal no.142 of 1999. A.D.J./ Special Judge, Azamgarh allowed the appeal on 09.09.2002 and set aside the judgment and order passed by the Prescribed Authority. Through this writ petition, the aforesaid judgment of the Appellate Court has been challenged.

The Appellate Court mainly reversed the findings of bona fide need recorded by the Prescribed Authority on the ground that four years before filing of release application two other tenants of the landlady had vacated the shops which were in their possession and thereafter the said shops were let out to other persons and in case her need had been bona fide, then she would have settled some of her sons in business from the said shops. The landlady stated that when the said two shops were vacated by their tenants, the two sons of the landlady for whom shop in dispute was particularly required, were minors and lacking in experience and at that time she was also not having sufficient money for settling the sons in business. Prescribed authority categorically found that none of the six sons was having any regular shop. One of the sons was doing tailoring work from the shop of another person. Two sons for whose need release application was filed were selling pens and scents etc. going from one place to another and three were without any business and residing with landlady. In my opinion, the findings of the Appellate Court are patently erroneous in law. Concept of bona fide need goes on changing rapidly. Happenings of four years before filing of the release application were not much relevant. Moreover, by virtue of Rule 18 (2) of the Rules framed under the Act , even against same tenant, fresh release application may be filed after one year. An extremely vague allegation was made by the tenant that three of the sons of the landlady were at Bomaby and one was at Saudi Arabia. Prescribed Authority categorically found that no son of landlady was residing at Bombay and one of the sons had gone to Saudi Arabia only for few months. The Appellate Court did not specifically reverse the said finding. The appellate court also did not hold that the allegations of the landlady that two of his sons were selling pens and scents etc. on foot was wrong. The appellate court also did not hold that the two sons of landlady were doing any regular business even if the version of tenant that four sons were working at Bombay and Saudi Arabia was correct.

In respect of comparative hardship, Prescribed Authority held that tenant did not make any efforts to search alternative accommodation after filing of the release application. This view is perfectly in accordance with the view of Supreme Court in B.C.Bhutada vs. G.R.Mundada (A.I.R. 2003 S.C. 2713). Appellate Court expressed undue sympathy for the tenant and held that he was doing business for 42-45 years from the shop. Appellate Court failed to consider that as virtually no rent was being paid by the tenant (rent of Rs.9/- per month can very well be defined as no rent), hence tenant must have saved a lot of money, which he would have been required to pay as proper rent. Money saved is money earned. The tenant should have therefore made more sincere efforts to purchase or take on rent some other shop, which he did not do.

I find that findings of the lower appellate court are utterly erroneous in law and are liable to be set aside.

Writ petition is, therefore, allowed. Judgment and order passed by the Appellate Court is set aside. Judgment and order passed by Prescribed Authority is restored.

However, it is directed that on the execution application under Section 23 of the U.P. Urban Buildings (Regulation of Letting, Rent & Eviction) Act, 1972, which may be filed by the landlady petitioner in pursuance of this judgment, Prescribed Authority before passing actual order of eviction must ensure service of notice upon tenants respondents.




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