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Umesh Chandra Agarwal v. Additional District Judge, Court No.7 Moradabad And Another - WRIT - A No. 9150 of 2003  RD-AH 2688 (19 February 2007)
Hon'ble Rakesh Tiwari,J.
Heard learned counsel for the parties and perused the record.
This is landlord's petition. He moved release application under Section 21(1)(a) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as ''U.P. Act No. XIII of 1972'), registered as P.A. Case No. 6 of 1994 on the grounds, inter alia, that his requirement of shop in dispute was bona fide; that he intends to open a ''General Merchant Shop' and that the tenant has purchased his own property just 50 yards away from the shop in dispute.
The release application was contested by the respondent-tenant by filing written statement dated 11.11.1994 denying the plaint allegations stating inter alia that the petitioner-landlord being heart patient and of 60 years of age was unable to establish new business; that two sons of the petitioner-S/Sri alok and Atul were already running their own business in the name and style of ''Hannu Converters and Alora Agency and that his need was sham and fictitious.
The petitioner-lanlord filed his own affidavit (paper no. 15/C) stating that the landlord and his family was facing greater hardship than the tenant as both the businesses of his sons were closed and the tenant has purchased his own properties at several places.
After appreciation of documentary and oral evidence, the Prescribed Authority allowed the release application of the petitioner vide judgment dated 23.2.1998 and directed the respondent-tenant to vacate the shop within two months from the date of order.
Aggrieved by the judgment of Prescribed Authority, the respondent-tenant preferred Rent Control Appeal No. 14 of 1998 which has been allowed by the respondent no. 1 by the impugned judgment dated 31.10.2002 holding that since landlord sold one of his own shop to Smt. Anita Agrawal on 18.6.2001, his need was not bona fide; business of Sri Alok was closed but that of Sri Atul was not closed; that so called family settlement dated 1.4.1999 was sham and fictitious and that the tenant was entitled to benefit of Rule 16(2)(a) of the Rules framed under U.P.Act No. XIII of 1972.
Counsel for the petitioner contended that admittedly, the tenant has alternate accommodation available to him and on this ground alone, judgment of the Prescribed Authority ought to have been upheld by the lower appellate Court but it has committed material illegality in allowing the appeal.
Per contra, counsel for the respondent-tenant contended that apart from the fact that the landlord has got alternate shop in his possession, his need is not bona fide and the lower appellate Court has rightly allowed the appeal of the tenant as the landlord sold one of the shops during pendency of the litigation. However, counsel for the tenant does not deny the factum of possession of alternate accommodation by the tenant.
The counsel for the petitioner in rebuttal submits that the shop was sold in the grave circumstance as the petitioner required immediate money for his heart treatment as the business of his sons had also closed and they also could not help.
Having heard counsels for the parties and going through the record, it appears from record that Sri Alok, son of the petitioner-landlord filed Original Suit No. 238 of 1999 claiming declaration in respect of the properties on the basis of family settlement arrived between the landlord and his sons, which was decreed on 13.11.2002.
It is also apparent from record that the landlord sold one shop to Smt. Anita Agrawal vide sale deed dated 18.6.2001 with a view to meet the expenses or his bye-pass surgery.
It is immaterial as to whether landlord is in possession of alternate shop or not. What is material is whether it is available to him for his needs/ In any case, the admitted fact is that the tenant has got an alternate accommodation in his possession, hence in view of explanation (i) to Section 21(1)(a) of U.P. Act No. XIII of 1972 which provides that even if any of member of tenant's family has acauired an alternate accommodation, the tenants cannot contest the claim of need of the landlord on the ground that there is no bona fide need of the landlord. Explanation (i) to Section 21(1) of the Act No. XIII of 1972 automatically applies to the facts of the instant case, which is as under :-
"Explanation- In the case of a residential building-
(i) where the tenant or any member of his family who has been normally residing with him or is wholly dependent on his has built or has otherwise acquired in a vacant state or has got vacated after acquisition a residential building in the same city, municipality, notified area or town area, no objection by the tenant against an application under this sub-section shall be entertained."
In the circumstance, comparative hardship shall be sufferred by the landlord. The Prescribed Authority rightly allowed the release appliation of the landlord and the ppellate Court has committed a gross illegality in allowing the appeal on the grounds, which are not relevant for the purpose of the controversy involved in the case.
The Lower Appellate Court has also committed illegality in allowing benefit of Rule 16(2)(a) of the Rules framed under U.P. Act No. XIII of 1972. Rule 16(2)(a) provides that if the tenant is occupying the tenanted accommodation for a considerable long period, this aspect of the matter shall be kept in mind by the Court while dealing with the release application. Court below has considered the provisions of Rule 16(2)(a) but failed to consider the provisions of Rule 16(2)(b) which clearly provides that if the tenant has an alternate accommodation in his possession, there shall be greater justification for allowing the release application.
For the reasons stated above, the petition succeeds and is allowed. Judgement and order dated 31.10.2002 passed by respondent no. 1 in Rent Control Appeal No. 14 of 1998 is quashed and the respondent-tenant is directed to hand over peaceful vacant possession of the shop in dispute to the petitioner-landlord within a period of three months from today failing which, he shall be liable to be evicted by coercive process, in accordance with law with the aid of local Police. No order as to costs.
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