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Jai Prakash v. P.A. And Others - WRIT - A No. 37769 of 1995  RD-AH 1730 (16 December 2004)
Court No. 26
Civil Misc. Writ Petition No. 37769 of 1995
Jai Prakash Vs. Prescribed Authority & others
Hon'ble Vikram Nath J.
This petition is directed against the judgment and order dated 30.09.95 and 13.12.1995 Annexures-6 and 11 whereby the release application of the landlord respondent under section 21(1)(a) of the U.P. Act No. 13 of 1972 was allowed and recall application filed by the tenant petitioner has been dismissed.
The respondent filed release application setting up a need of the premises in dispute for his son Sunil Kumar for residential use who had set up a new business at Aligarh. In para 9 and 10 of the release application it has been stated that the tenant had acquired residential house being house no. 1/135 Jwalapuri Ravanteela Aligarh and therefore, he had no right to object in view of explanation to section 21(1) of the Act. The tenant petitioner filed written statement and in para 15 and 16 it was admitted that the said house has been acquired. However, it was contended that the accommodation acquired was not sufficient and therefore, he has right to contest. Affidavits were also exchanged between the parties. Subsequently the tenant Sri Ram (Dibba wale) died and his heirs were substituted. However, the heirs despite substituted service did not appear and Prescribed Authority proceeded exparte and allowed the release application vide judgment and order dated 30.09.1995. Thereupon the heirs of the tenant filed an application for recalling the order dated 30.09.1995. The said application has been dismissed by the order dated 13.12.1995. Aggrieved by the said judgment and orders the petitioner has filed the present writ petition.
I have heard Sri S.K.Lal, learned counsel for the petitioner and Sri M.K.Gupta, learned counsel for the respondent.
It has been contended by learned counsel for the petitioner that the order being exparte and there being no sufficient notice on the heirs, the order dated 30.09.1995 allowing the release application of the petitioner, was vitiated in law and liable to be set aside. On the other hand it was contended by learned counsel for the respondent that the heirs had full knowledge of the proceedings and were also doing pairvi even in the lifetime of their father. The Prescribed Authority disbelieved the contention of the heirs that they had no knowledge and after holding that the heirs had full knowledge of the proceedings, dismissed the recall application. I do not find any reason to disagree with the findings recorded by the Prescribed Authority, more so in view of the fact that the fact regarding acquisition of residential accommodation in the same municipal limits having been admitted by the tenant under the explanation u/s 2(1)(a) of the Act, he had no right to object to the release application. No purpose would be served by remanding the matter or allowing an opportunity of hearing to the petitioner.
Accordingly the petition is dismissed.
The Counsel for the petitioner has prayed that some time may be allowed to vacate the premises. The Counsel for the respondent has submitted that time may be granted subject to the condition that the petitioner submits undertaking on the terms and conditions that may be imposed by this Court. Upon consideration of facts and the long occupancy of the petitioner six months time is allowed from today to the petitioner to vacate and hand over peaceful possession of the premises in dispute to the landlord (respondent 2) subject to the condition that the undertaking incorporating the conditions as stated below is filed within four weeks from today before the Trial Court.
Learned counsel for the petitioner submitted that undertaking shall be filed by the petitioner before the Prescribed Authority on the terms and conditions imposed by this Court:-
1. The tenant-petitioner shall file before the concerned Prescribed Authority, on or before 15th January,2005an application along with his affidavit giving an unconditional undertaking to comply with all the conditions mentioned hereinafter:
2 Petitioner-tenant shall not be evicted from the accommodation in his tenancy for six months i.e. up to 15th June, 2005. Tenant-petitioner, his representative/assignee, etc. claiming through him or otherwise, if any, shall vacate without objection and peacefully deliver vacant possession of the accommodation in question on or before 15th June, 2005 to the landlord or landlord's nominee/representative (if any, appointed and intimated by the landlord) by giving prior advance notice and notifying to the landlord by Registered A.D. post (on his last known address or as may be disclosed in advance by the landlord in writing before the concerned Prescribed Authority) time and date on which Landlord is to take possession from the tenant.
3. Petitioner shall on or before 15th January, 2005 deposit entire amount due towards rent etc. up to date i.e. entire arrears of the past, if any, as well as the rent for the period ending on the 15th June, 2005.
4. Petitioner and everyone claiming under him undertake not to ''change' or ''damage' or transfer/alienate/assign in any manner, the accommodation in question.
5 In case tenant-petitioner fails to comply with any of the conditions/or direction/s contained in this order, landlord shall be entitled to evict the tenant-petitioner forthwith from the accommodation in question by seeking police force through concerned Prescribed Authority.
6. If there is violation of the undertaking of any one or more of the conditions contained in this order, the defaulting party shall pay Rs. 25,000/- (Rupees Twenty five thousand only) as damages to the other party besides rendering himself/herself liable to be prosecuted for committing grossest contempt of the Court.
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