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ANIL KUMAR versus ABDUL WAHID AND OTHERS

High Court of Judicature at Allahabad

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Anil Kumar v. Abdul Wahid And Others - WRIT - A No. - 51259 of 2007 [2007] RD-AH 16639 (12 October 2007)

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HIGH COURT OF JUDICATURE AT ALLAHABAD

Court No.07

Civil Misc. Writ Petition No.51259 of 2007

Anil Kumar Vs. Abdul Wahid Dilli Wala and others

Hon'ble S.U. Khan, J.

Heard learned counsel for the petitioner.

This is tenant's writ petition. It arises out of eviction/ release proceedings initiated by landlord respondent No.1 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.97 of 1999. Property in dispute is a shop, situate on a main road rent of which is Rs.700/- per month. At the back of the shop in dispute, residential house of the landlord is situate, which has got access to the main road through a gallery just adjacent to the shop in dispute, in which landlord has placed an iron shutter. It appears that previously, there was wooden door, which was replaced by iron shutter. Case of the landlord was that for the purposes of safety, it was done as at that time a riot had taken place in the city. Landlord further pleaded that he was tying 08 or 10 buffalos in the small court-yard of his house and was earning his livelihood by selling their milk and his son helped him in the said business. Residential house of the landlord has got another opening in a gali, which is hardly two or three feet wide. The landlord pleaded that he requires the shop in dispute to settle his son in business, who was having six children, aged about 9 to 18 years. It was further pleaded that landlord proposed to shift his dairy business to another area. The main contention of the tenant before the courts below as well as this Court was that the portion adjoining to the shop in dispute could very well be used by the landlord as a shop as a shutter had been placed by him therein. Prescribed Authority/ J.S.C.C., Meerut allowed the release application on 06.04.2002. Against the said judgment and order, petitioner filed Misc. Appeal No.86 of 2002. The said appeal has been dismissed on 24.09.2007 by A.D.J., Court No.4 Meerut, hence this writ petition.

Appellate Court had also issued Commission to an advocate to inspect the premises in dispute and landlord's adjoining premises. The commissioner submitted his report dated 13.01.2003, which was also considered by the Appellate Court. In respect of comparative hardship, it was clearly held that tenant did not make any efforts to search alternative accommodation, hence question of comparative hardship was decided against him.

In this writ petition also the main point argued by the learned counsel for the petitioner was regarding availability of the adjoining portion to the landlord, which could be used as a shop. No landlord can be compelled to convert passage/ gallery into a shop. The other ingress and outgress of the landlord's house is through a very narrow lane. A landlord cannot be compelled to close his main entrance, which is on a wide road and use alternative passage opening into a very narrow lane. Merely because for safety reasons, shutter has been placed in the space/ gallery adjoining to the shop in dispute leading to the landlord's residential house, it does not mean that it can be used as a shop. Tenant did not plead that the gallery was not actually being used for reaching the road. He only pleaded that in the gallery landlord was tying cattles. Tenant could not point out that any other shop was available with the landlord to settle his son. The question whether landlord intended to shift his dairy business to some other space or not was wholly irrelevant as he sought eviction of the shop in dispute to settle his son. As held by Supreme Court in AIR 2003 SC 780 "Sushila v. IInd Addl. District Judge, Banda" followed in Rishi Kumar Govil Vs. Maqsoodan and others, 2007 (4) SCC 465 every member of landlord's family is entitled to do independent/ separate business and he cannot be compelled to participate in the family business.

As far as finding on the question of comparative hardship recorded by the courts below is concerned, it is perfectly in consonance with Supreme Court authority reported in B.C. Bhutada Vs. G.R. Mundada, AIR 2003 SC 2713.

Accordingly, I do not find any error in the impugned judgments writ petition is, therefore, dismissed.

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

1. Within six weeks 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.13,500/-( at the rate of Rs.1500/- per month) as rent/damages for use and occupation. This amount shall also be deposited within six weeks 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 six weeks. It is further directed that in case undertaking is not filed or Rs.13,500/- are not deposited within six weeks then tenant-petitioner shall be liable to pay damages at the rate of Rs.3000/- per month since after six weeks till the date of actual vacation.

Similarly, if after filing the aforesaid undertaking and depositing Rs.13,500/- 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.3000/- per month since after nine months till actual vacation. It is needless to add that this direction is in addition to the right of the landlord to file contempt petition for violation of undertaking and execution application under Section 23 of the Act.

Date:12.10.2007

NLY


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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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