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Kashi Nath v. Iiird A.D.J.And Others - WRIT - A No. 5997 of 1985 [2005] RD-AH 2399 (6 September 2005)


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                    W.P. No. 5997 of 1985.

Kashi Nath                                                           Petitioner


The IIIrd Addl. District Judge,

Varanasi  & others.                                               Respondents.



Hon. Vikram Nath,J.

This writ petition has been filed by the tenant for quashing the judgment and orders dated 07.09.1983 and 04.02.1984, whereby the prescribed authority as well as the appellate authority have allowed the release application of the respondents landlord under Section 21(1)(a) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 and have directed for eviction of the petitioner.

The dispute relates to a shop situated in premises No. C-15/287-A, Mohalla Lalapura, Varanasi City, which is in the tenancy of the petitioner and owned by respondent no. 3 Suraj Prasad. An application for release of the shop in dispute was filed by respondent no. 3 under Section 21(1)(a) of the Act setting up a need for his son Budhi Ram, who was an electrician and want to start of business of electric goods in the shop in dispute. In the release application is also alleged that the petitioner has got his own house no. 14/160-29, in Mohalla Lalapur itself and another house no. C-14/230, Mohalla Kajipura, Varanasi City. It was further alleged that there was already a shop of Halwai in the petitioner's house would he goes easily shifted his business in either of the two houses. This application was registered as P.A. Case No. 75 of 1982. The application was contested by the petitioner and the contentions denied. It was alleged that the need was not bona fide and in fact respondent no. 3 want to evict the petitioner in order to let it out of a higher rent to another person after taking ''Pagadi'.  The prescribed authority after allowing the parties of exchange affidavits and evidence, vide judgment dated 07.09.1983 held that the need of the respondent no. 3 was setting up business of Budhi Ram was bona fide and that the petitioner would suffer lesser hardship. In the event the application was allowed and the petitioner was evicted. Aggrieved by the said judgment the petitioner filed an appeal under Section 22 of the Act, which was registered as Rent Appeal No. 371 of 1983 Kashi Nath vs. Suraj Prasad. This rent appeal was transferred to the court of 3rd Additional District Judge, Varanasi, vide judgement dated 04.02.1985 dismissed the appeal and confirmed the judgment of the prescribed authority dated 07.09.1983.

Aggrieved by the same, present writ petition has been filed.

I have heard Sri Vijai Kumar Rai, Advocate, holding brief of Sri Sankatha Rai, learned counsel for the petitioner and Sri Ashish Kumar Singh, learned counsel for the respondent.

The learned counsel for the petitioner has raised the following question. Firstly, that evidence filed by the petitioner, have not considered by the courts below, thereby, initiating the arrangement and secondly, that the provisions contained in Rule 16 (2) of the 1972 Rules have not been taken note of occasion resulting into as illegal judgment. In support of his contention he has relied upon the following 3 judgments: 1982 ARC page 440, 1984 (2) ARC 615 and 1996 (1) ARC 174.

On the other hand, learned counsel for the respondents has wrongly urged that the both courts below after considering the entire material on record have recorded concurrent finding of fact on the question of bonafide need and comparative hardship. Since this court in which is extra ordinary under Article 226 of the Constitution examined or re- appreciate evidence, the petition deserves to be dismissed without merits. While referring to the last question, the counsel for the petitioner pointed out that in one of the affidavit it was alleged that one small shop measuring 4x4 feet was released and its possession delivered to the respondent no. 3, thirdly, the need of the respondent no. 3 is satisfied, in which Budhi Ram come set up his shop for electric goods or in the alternative the said shop can be exchanged with the petitioner in lieu of the shop in dispute. Before this Court also the petitioner contended that he has his willing to take the similar shop measuring 4x4 feet and shall willing to vacate the shop in dispute measuring 8x12 feet. After was given to the respondent landlord to consider this aspect of the matter, it has been stated by the respondent that since the time the release application was filed in the year 1982 and today Budhi Ram for whose need the application was filed has 4 adult sons aged about 27, 25, 23 and 20 years respectively. One of the sons is already running above shop 4x4 feet small shop. It was contended that the need of the landlord with afflux of time had become grater and was more pressing.  

Apart from the said offer regarding taking of 4x4 feet, shop, the petitioner was not pointed out any other fact, which was said in any of the affidavit ignored by the courts below. The aspect relating to offer to exchange at this state in view of the case and the development that have taken place last 23 years cannot be considered.

The next contention of the learned counsel for the petitioner is that Rule 16(2) as the Rules has not been taken note of and, therefore, the impugned orders are vitiated. In response this learned counsel for the respondent has strongly urged that for the last 23 years the petitioner has not at a bona fide by making a need afford for alternative accommodation. Nothing has been brought on record by the petitioner to show that he made efforts and was enable to look another shop. Further, both the courts below have considered the fact that the petitioner has two houses of his own, one in the same locality of Lalapur way shop in dispute situated and second in Mohallah Kajipura, which is nearby, and which has been let out by the tenant. The finding of the court's below is that the petitioner shifted his business of Halwai in another either of the two houses separately one in the same locality.

In view of the above, the Rules 16(2) of the Rules losses it importance and, therefore, this point also fails.

In view of the above, the writ petition lacks and deserves to be dismissed.

Dated: 06.09.2005.

v.k.updh. (v-43)


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