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Vijay Kumar v. Addl. Dist. Judge Ghaziabad And Others - WRIT - A No. 64115 of 2005 [2005] RD-AH 4651 (21 October 2005)


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Civil Misc. Writ Petition No.64115 of 2005

Vijay Kumar Vs. Additional District Judge, Ghaziabad and others


Landlady-respondent no.3 Smt. Yashoda Rani filed release application against tenant-petitioner under Section 21 of U.P. Act No.13 of 1972 in the form of P.A. Case No.6 of 2003.  Building in dispute is a shop.  Landlady pleaded that she required the shop in dispute for establishing her Advocate son- Sanjai Kansal's chamber.  Tenant pleaded that landlady had eight room house  in which chamber of her Advocate son could very well be established.  Some other properties were also pointed out by the tenant to be available to the landlady.  Prescribed Authority held that landlady's family consisted of herself, her husband, three sons and three daughters hence there was not sufficient room in her residential house to establish the chamber of her Advocate son.  No other property was found available to the landlady.  In respect of comparative hardship Prescribed authority found that tenant did not make any efforts to search alternative accommodation hence balance of hardship was tilted against him.  This view is perfectly in accordance with judgment of the Supreme Court reported in B.C.Bhutada vs. G.R.Mundada A.I.R. 2003 S.C. 2713.  Prescribed authority/Civil Judge (SD), Ghaziabad allowed the release application on 17.2.2005.  Against the said judgment and order tenant-petitioner filed rent appeal no.36 of 2005 which was dismissed on 13.9.2005 by A.D.J. Court No.V, Ghaziabad hence this writ petition.

Appellate court agreed with the findings of the trial court of bonafide need and comparative hardship.  During the pendency of appeal it was brought on record by the tenant that a room situate on the third story which was in tenancy occupation of Nepal Tailor had been vacated by him hence chamber of landlady's son could be established therein.  Landlady denied the said assertion and filed her own affidavit and affidavit of Nepal tailor.  In any case portion in occupation of Nepal tailor was on the third story hence it was not much suitable for establishing advocate's chamber.  In this regard reference may be made to the authority of the Supreme Court reported in Chandrika Prasad & another Vs. Umesh Kumar Verms & Others A.I.R. 2002 S.C. 108 where it was held that non-occupation of an accommodation available to a doctor on the ground of non-suitability (being away from main road) Is no ground to reject release for his need.  Alongwith affidavit filed on 18.10.2005, copy of written statement was filed.  Written statement was amended during pendency of appeal and para 21-A was added in which it was stated that during pendency of appeal Nepal darzi who had in his tenancy occupation a room at third story of the building in which shop in dispute is situate had vacated the same.  Appellate court found the said assertion to be incorrect after perusal of the evidence filed by both the parties.

In my opinion there is no such error in the impugned judgments and orders which may warrant interference in exercise of writ jurisdiction.  

Accordingly, writ petition, is dismissed.

However, there is one disturbing feature of this case which requires serious consideration.  Appellate court dismissed the appeal on 13.9.2005 hence dis-possession could not take place until 13.10.2005 by virtue of Section 21 (6) of the Act. This writ petition was heard by me as fresh on 3.10.2005 and it was directed to be put up as fresh again on 7.10.2005.  Order dated 3.10.2005 is quoted below:

"As prayed put up as fresh on 7.10.2005.  Learned counsel for the petitioner prays for stay till 7.10.2005.  However, there is no question of granting any stay order as appellate court has dismissed the appeal on 13.9.2005 hence eviction cannot take place until 13.10.2005."

The said order was passed in the presence of Shri Vinod Sinha, learned counsel who had appeared through caveat for landlady-respondent.  Thereafter on 7.10.2005 the case was directed to be put up on 17.10.2005 and it was directed that petitioner should not be evicted until 17.10.2005.  Unfortunately petitioner was dis-possessed on 7.10.2005.  Dis-possession of the petitioner on 7.10.2005 shows highhandedness of landlady.  In view of order dated 3.10.2005 there was absolutely no occasion for dis-possessing the petitioner on 7.10.2005.

Accordingly, it is directed that respondent no.3 shall pay Rs.30,000/- as damages to the tenant-petitioner by 30.11.2005.  The amount shall be paid through draft drawn in favour of tenant-petitioner which may be given either directly to him or through the learned counsel for the petitioner in this Court.  In case, by 30.11.2005 the aforesaid amount is not paid then possession shall be re-delivered to the tenant by the Prescribed authority immediately after 30.11.2005.  In that contingency tenant-petitioner shall remain in possession for six months and thereafter possession shall be redelivered to landlady-respondent.




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