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SMT. CHAMPA DEVI AND OTHERS versus IIND ADDL. DIST JUDGE KANPUR NAGAR AND OTHERS

High Court of Judicature at Allahabad

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Smt. Champa Devi And Others v. Iind Addl. Dist Judge Kanpur Nagar And Others - WRIT - A No. 19035 of 2005 [2007] RD-AH 6467 (9 April 2007)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

RESERVED

Civil Misc. Writ Petition No. 19035 Of 2005.

Smt. Champa Devi and another

Versus

IInd Additional District Judge, Kanpur Nagar and others

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Hon'ble Anjani Kumar, J.

The tenant-petitioners, by means of this writ petition under Article 226 of the Constitution of India, have challenged the order passed by the appellate authority under the provisions of U.P. Act No.13 of 1972 (in short the Act) and the order passed by the prescribed authority under the Act.

The brief facts are that respondent no.3, the landlord of the accommodation in dispute, filed an application dated 14th February 2000 under Section 21 (1) (a) of the Act for release of the accommodation in question for landlord's bona fide requirement, namely, settling down his son in business, who is still unemployed. The tenant-petitioners have contested the aforesaid application and submitted that the landlord has no bona fide requirement as his son, to whom he wants to settle, is still studying and further that the landlord and the son do not have any experience of business which they propose to start therefore the need cannot be said to be bona fide. On the question of comparative hardship the tenants submitted that the tenants would be suffering more hardship in allowing the release application than what landlord would suffer in case the release application is rejected. After exchange of pleadings the parties adduced evidence before the prescribed authority, the prescribed authority by its order dated 18th November 2003 arrived at a finding that the need of the landlord is bona fide and further the tilt of the comparative hardship is in favour of the landlord. The prescribed authority therefore allowed the release application filed by the landlord and directed release of the accommodation in favour of the landlord. Aggrieved by the order passed by the prescribed authority the petitioner preferred an appeal under Section 22 of the Act before the appellate authority. During the tendency of the appeal additional affidavit is filed by the petitioner-tenants before the appellate authority. The landlord also filed a rejoinder affidavit to the aforesaid additional affidavit. Before the appellate authority the

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need set up by the landlord was that his son, who is educated, has no place to start a business. He, therefore, sought the release of the accommodation in question for his son who would be starting the business from the premises in dispute. The appellate authority has considered the  case of the landlord who has submitted that his son is not good in studies and therefore he will set up his son in a business as his son has knowledge of the business. The business suggested by the landlord is that he will settle his son in a business of hardware and pipes and for opening this business the landlord has no shop. The landlord has further submitted that the tenants have their house No.77/156, Latoosh Road, Kanpur in the same locality and they have a shop in their possession measuring 10' x 11'. The case set up by the tenant-petitioners regarding bona fide need of the landlord has been discussed by the appellate authority who submitted that the landlord is in possession of shop measuring 10' x 11' on the Latoosh Road in which the landlord himself is carrying on a business. The aforesaid shop of the landlord is normally closed and in case the landlord wants to set up his son in new business he can utilize that shop measuring 10' x 11'. The landlord has also taken up the defence that a litigation regarding non-payment of rent against the petitioners is pending before the competent court. It is also contended by the tenant that landlord is in possession of another accommodation in Coolie Bazar. After analysing the evidence on record as argued by the counsel for the tenant the appellate authority held that the need of the landlord is bona fide. The appellate authority has affirmed the finding that to settle the son in new business has been held by this Court to be bona fide need.

On the question of comparative hardship the appellate authority while considering the additional affidavit filed by the petitioner-tenants before the appellate authority that since the shop in question is the only source of livelihood for the tenants and they have earned goodwill also and that there is no place where he can shift his business, therefore, the tilt of the comparative hardship should be taken in favour of the tenants. The statement made by the tenants in their additional affidavit has been denied by the landlord by filing an affidavit. After considering the aforesaid additional affidavit and reply filed by the landlord the appellate authority has affirmed the findings arrived at by the prescribed authority regarding

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bona fide need of the landlord as well as the tilt of the comparative hardship. The appeal filed by the petitioner-tenants is therefore dismissed and the order passed by the prescribed authority is affirmed.

Before this Court learned counsel for the petitioner has made an attempt to demonstrate that the findings arrived at by the prescribed authority and appellate authority deserve to be quashed but has failed to demonstrate that the findings are either perverse or suffer from any error of law much less an error apparent on the face of record.

Learned counsel for the respondent-landlord has relied upon the decisions of the Apex Court in the case of Ranjeet Singh Vs. Ravi Prakash, 2004 (55) AIR. 319 and also the decision reported in 2003 Vol. II ARC 385, Surya Dev Rai Vs. Ram Chander Rai that no interference under Article 226 of the constitution of India, unless the findings arrived at by authority is either demonstrated to perverse or suffer from the manifest error of law.  The landlord has also relied upon a decision in the case of Dr. B.N. Joshi Vs. IInd Additional District Judge, Allahabad, 1985 (2) AIR. 206 and Smt. Razia Khatoon,1997 (2) ARC 175 and Faiz Mohammad, 1992 (2) ARC 404 and has submitted that during the pendency of the application under Section 21 of the Act the tenant has made no attempt to find out alternative accommodation, therefore, the case of comparative hardship in favour of the tenant should not be considered. Learned counsel for the respondent has further submitted that in view of findings recorded by the prescribed authority and affirmed by the appellate authority and having not demonstrated by the learned counsel for the petitioner to be either perverse or suffer from any manifest error of law, in view of the law laid down by the Apex Court in the case of Surya Dev Rai and Ranjeet Singh (supra), cannot be interfered by this Court in exercise of jurisdiction under Article 226 of the Constitution of India.

In view of what has been stated above the writ petition has no force and is dismissed. The interim order, if any, stands vacated.

Dt:

mhu.


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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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