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NEERAJ KUMAR JAISWAL AND ANOTHER versus JAI PRAKASH GUPTA

High Court of Judicature at Allahabad

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Neeraj Kumar Jaiswal And Another v. Jai Prakash Gupta - WRIT - A No. 76321 of 2005 [2007] RD-AH 8678 (8 May 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. 76321OF 2005.

Neeraj Kumar Jaiswal and another                                                    ...Petitioners.

Versus

Jai Prakash Gupta                                                                          ....Respondent.

.................

Hon'ble Anjani Kumar, J.

This writ petition filed by the petitioners-tenant under Article 226 of the Constitution of India challenge the order dated 28.8.2001 passed by the prescribed authority and the order dated 29.11.2005 passed by the appellate authority under the provisions of U.P. Act No. 13 of 1972 (in short ''the Act').

The facts leading to filing of the present writ petition in brief are that the petitioner is the tenant of the shop in dispute and the respondent is the landlord. An application under Section 21 (1) (b) of the Act was filed before the prescribed authority under the Act by the respondent-landlord, which was registered as P. A. case No. 6 of 1996 on the ground that the building in which the shop in dispute is situated, is in dilapidated condition and requires demolition and reconstruction. It is stated in the application that the landlord has no option except to reconstruct the shop in dispute and he has got sanctioned the map from the local body concerned. In support of his case, the landlord has filed report of R. K. Pandey, Junior Engineer (Civil) and other material. The tenant filed his  objection to the application filed by the landlord stating therein that it is not correct that the building in which the shop in dispute is situated, is in dilapidated condition or requires reconstruction. It is further stated by the landlord that the landlord is un-employed and wants to start new business in the construed building.  The tenant has denied the stand taken by the landlord and stated that the landlord is active in politics and he has hardly any time to run any business. He runs business along with his father. Thus, the need of the landlord is denied by the tenant. During the pendency of the application before the prescribed authority the landlord filed an application seeking amendment in his application filed under Section 21 (1) (b) to the effect that before the word (b) after 21 (1) word (a) may be permitted to be added, meaning thereby  the application may also be considered under the provisions of Section 21 (1) (a) of the Act, namely release of the shop in dispute for landlord's bona fide need. The landlord also submitted before the prescribed authority that after demolition of the building he will construct five shops and out of these five shops, he will retain two shops for his own need and two shops he will give to other two persons who have agreed to pay him advance and remaining one shop, he is ready to let out to the petitioner. The petitioner-tenant contested the application on the point of bonafide need. The prescribed authority after considering the material available on record arrived at the conclusion that the building in which the disputed shop is situated, is in dilapidated condition and requires demolition and thereafter reconstruction. It also found that the need of the landlord is bonafide and further that the tilt of comparative hardship is also in favour of the landlord, as the landlord has no business nor any place to start his own business and particularly in view of the offer made by the landlord that he will give one shop to the tenant after reconstruction, the prescribed authority allowed the application filed under Section 21 (1) (a) and (b) and directed for release of the shop in dispute vide order dated 28.8.2001. Against the aforesaid order the tenant-petitioner preferred an appeal before the appellate authority. The appellate authority after discussing the evidence on record and respective arguments maintained the finding of the prescribed authority with regard to the building being in dilapidated condition which requires reconstruction after demolition and also affirmed the finding that the need of the landlord is bonafide and further that the tilt of comparative hardship is also in favour of the landlord, dismissed the appeal vide order dated 29.11.2005. Thus, this writ petition.

Before this Court also, learned counsel for the petitioner has submitted that the landlord being the office bearer of the local unit of Bhartiya Janta Party will not start any business as he has no time for running a business and further that the landlord does not require any business, the release orders deserves to be quashed. Suffice to say firstly, there is no material to support his argument and secondly contrary to this, there is categorical finding by both the authorities that the landlord has no accommodation to start his own business. It is settled law that in case, the landlord wants to start his own business, his need shall be deemed to be bona fide. So far as the tilt of comparative hardship is concerned since the need of the landlord is held to be bona fide and it has not been demonstrated either to be perverse or suffers from any error much less error apparent on the face of record, the tilt of comparative hardship cannot be questioned particularly in view of the fact that the landlord is ready to give one shop to the tenant after reconstruction of the building.  The landlord is directed to complete the construction within one year of the  petitioner handing over the possession of the shop released in favour of the landlord.

In view of what has been stated above, this writ petition has no force and is dismissed.

Learned counsel for the petitioner states that if the arguments advanced by him do not find favour of the Court, the tenant may kindly be granted some reasonable time to vacate the shop as the tenant is carrying on business from the disputed shop.

Considering the submission made by learned counsel for the petitioner and facts and circumstances of the present case, I direct that the petitioners shall not be evicted pursuant to the decree of eviction till 31st October, 2007 from today provided:

(1) petitioners furnish an undertaking before the prescribed authority within one month from today that they will hand over peaceful vacant possession to the landlord on or before 31st   October, 2007; and

(2) petitioners pay to the landlord or deposit the entire arrears of rent/damages, if not already deposited before the prescribed authority, at the rate of rent till date within one month from today and continue to pay or deposit the same by first week of every succeeding month so long they remain in possession or till 31st October, 2007, whichever is earlier. The landlord will be entitled to withdraw the amount so deposited.

In the event of default of any of the conditions referred to above, it will be open to the respondent-landlord to get the decree executed.

Dated: 8.5.2007

HR


Copyright

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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