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Nand Kishre v. The Prescribed Authority & Others - WRIT - A No. 18063 of 1985 [2005] RD-AH 3693 (29 September 2005)


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Civil Misc. Writ Petition No. 18063 of 1985

Nandkishor Vs. Prescribed Authority  Baraut , Meerut and others.


Hon'ble S.U.Khan,J.

This is landlord's writ petition arising out of eviction/ release proceedings initiated by him against tenant-respondent, on the ground of  bonafide  need under Section 21 U.P. Act No. 13 of 1972.  The Rent  of the house  in dispute is Rs. 40/- per month. Release application was registered as P.A. case No. 16/80. The Prescribed authority through judgment and order dated 25.6.1985 rejected the release application against which  the landlord petitioner filed   Misc. appeal No. 91 of 1981. The appeal was dismissed on 3.9.1985 hence this writ petition.

Both the courts below held that the landlord did not have any bonafide need as he was residing alongwith his family in one room in his father-in-law's house. The residence  of a person in his father-in-law's house is only as a licensee. Possession of some building by landlord as  licensee can never  be taken to be a ground to reject the release application as held by  Supreme  Court in M.E. Kshirsagar Vs Traders and Agencies A.I.R. 1997 Supreme Court, 59. Even otherwise in Indian Society, it is not  considered  graceful for a  person  to reside  with his wife and children in  his father-in-law's house. In this view of the matter, the orders of the  courts below holding the need of the landlord not to be bonafide are erroneous in law.

As far as  comparative hardship is concerned,  tenant had  got  his own house when release  application was  filed. When release application was filed the house of the tenant was beyond the limit of Municipal Board  of  Baraut where house in dispute is situate. However, in the year 1982-83 the limit of Municipal Board   Baraut was extended and the said house came within the limit of Municipal Board. Landlord had also initiated eviction proceeding in the form of a suit against the tenant on the ground of default. The said matter also came to the High Court in the form of writ petition No. 5029 of 1985 which has also been decided today. In the said proceedings it was held that the tenant was in possession of  said house. During pendency of the appeal  which was filed by the landlord against rejection of his release application tenant sold his house. This fact is mentioned in the judgment of appellate court. Strangely enough the appellate court held that as the said house had been sold by the tenant, it could not be taken into consideration while deciding the question of comparative hardship. No tenant can be permitted  to assert his hardship if during the pendency of release proceedings he sells the alternative building  available to him.

The Prescribed Authority also held that tenant was a Thekedar             ( Contractor)  and the people knew that he was residing  in the house in dispute hence he had earned a sort of good will from the house in dispute. The Prescribed  Authority  observed  that the house owned by the tenant was situated away from the main abadi, hence  he would not be able to get  any business if he started residing therein  and he would be staring the road throughout  the day.  In this regard firstly it is to be  noted that the house in dispute was let out to the tenant respondent for residential purpose and not commercial purpose. Secondly Thekedars do not get  customers daily. Even one contract is  sufficient to keep  a thekedar  engaged  for months. Thekedars are not expected  to receive   scores of  the customers daily like retailers.

In view of the above  I am clearly of the opinion that findings of the bonafide need  and comparative  hardship recorded by the courts below  are patently erroneous  in law. I also hold that landlord-petitioner established  his bonafide need.  It is also  established from the record that  the landlord would suffer greater hardship than the tenant, in case release application is rejected. In any case,  the  tenant did not   show  that he made efforts to search alternative  accommodation  after  filing of the release application. This, by  itself,  is sufficient   to tilt the balance of comparative hardship  against the tenant, as held  By Supreme Court in B.C. Bhutada Vs. G.R. Mundada A.I.R. 2003 S.C. 2713.  

When both the courts below have rejected the release application of the landlord and judgments are found to be erroneous in law by writ court, matter is normally remanded. However, that formula is not to be necessarily followed in every case particularly when the matter is pending for long. Release application in the instant case was filed in the year 1980 and this writ petition is pending since 1985. The Supreme Court in AIR 2002 S.C. 200 G.C. Kapoor Vs. N.K.Bhasin allowed the release application out rightly which had been rejected by the Prescribed authority, lower appellate court as well as High Court. In my opinion it is a fit case where ultimate relief shall be granted to the landlord. Supreme Court has also held in 2004 A.C.J. 304 (SC) R.E.V. Gounder Vs. V.V.P. Temple and 2002 (2) A.R.C. 298 (Supreme Court) R.C.Kesharwani Vs. Dwarika Prasad that when the matter is pending for long, remand must be avoided. Supreme Court in its authority reported in Shail Vs. Manoj Kumar 2004 A.C.J. 1213 placing reliance upon Surya Dev Rai Vs. R.C. Rai 2003 (6) S.C.C. 675 has held that in exercise of writ jurisdiction High Court has the jurisdiction also to pass itself such a decision or direction as the inferior court or tribunal should have made.

Accordingly the writ petition is allowed. Both the judgment and orders   of the courts below are set aside. Release application of landlord is allowed. Tenant  respondent No.3 is granted 6 months time to vacate   the premises in dispute provided that he files undertaking before  the Prescribed Authority within a period of one month to the effect  that he will vacate the premises in dispute on the expiry of the aforesaid period of six months. For this period of six months which has been granted to the tenant to vacate he is required to pay Rs.3,000/- (at the rate of Rs.500/- per month) as damages for use and occupation.  This amount shall also be deposited within one month before the Prescribed authority and shall immediately be paid to the landlord-petitioner.

In case of default in compliance with either of these conditions, tenant respondent shall be dispossessed after one month through process of court under section 23 of the Act.

It is further directed that in case undertaking is not filed within one month then tenant petitioners shall be liable to pay damages at the rate of Rs.3,000/- per month since after one month till the date of actual vacation.

Similarly if after filing the aforesaid undertaking the shop in dispute is not vacated after six months then damages for use and occupation shall be payable at the rate of Rs.3,000/- per month since after six months till actual vacation.

Dt. 27.9.2005



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