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Bashi Dhar v. 3rd Adj & Others - WRIT - A No. 16177 of 1983  RD-AH 4662 (24 October 2005)
Civil Misc. Writ Petition No.16177 of 1983
Banshidhar Vs. IIIrd A.D.J., Aligarh and two others
This is landlord's writ petition arising out of eviction/release proceedings initiated by him against original tenant respondent no.2 Kishan Kumar since deceased and survived by legal representatives on the ground of bonafide need under Section 21 of U.P. Act No.13 of 1972. Release application was registered as case no.16 of 1977 on the file of Prescribed Authority, Hathras.
Property in dispute is a dochatti. Landlord in his release application set up the need for residence. In the remaining portion on the first floor on which dochatti is situate and on the second floor landlord is residing. Initially on the ground floor a shop was also in tenancy occupation of the tenant respondent no.2 which he later on vacated and was let out by the landlord to one Girraj Kishore. On the ground floor there are other shop also belonging to landlord-petitioner which are let out to different tenants. The entire property was got inspected by amin who submitted his report alongwith map copy of which is Annexure-5 to the writ petition. According to the said report landlord had in his possession only one room on the first floor and one small room on the second floor alongwith kitchen having tin shed and a portion of the same was converted into another small room by wooden partition. The Prescribed Authority found that at least there were nine members in the family of the landlord and his need was quite bonafide. Tenant had also pointed out that in another mohalla landlord had had his ancestral house in which he had a share. Landlord had stated that in the said ancestral house his brother was residing and in the said house landlord had only one room in his possession. As far as comparative hardship is concerned Prescribed Authority found that tenant had alternative accommodation available to him. Prescribed Authority found that there was a shop belonging to the tenant which was in possession of a tenant Gopi Nath with whom litigation was going on. Apart from that it was also found that in mohalla Kurchian gali also tenant had another shop. Prescribed authority also found that in the residential house of the tenant there was a baithak and a room in which tenant could carry on his business of watch repairing, which he was carrying on from the accommodation in dispute. Prescribed authority ultimately on 11.10.1982 allowed the release application. Against the said judgment and order tenant respondent no.2 filed U.P.U.B.appeal no.106 of 1982. Appeal was allowed by IIIrd A.D.J., Aligarh through judgment and order dated 19.9.1983 hence this writ petition.
Even the appellate court found the need of the landlord to be bonafide. The exact finding is quoted below.
"There cannot be two opinions that this accommodation is insufficient for residence of the family of landlord."
However appellate court had allowed the appeal on two grounds. Firstly, appellate court held that a room vacated by the tenant was let out by the landlord to Girraj Kishore at the rent of Rs.100/- per month. This finding was utterly erroneous. What was vacated by the tenant respondent no.2 was a shop on the ground floor which was let out by the landlord to Girraj Kishore. A shop is not used for residence. Even tenant nowhere pleaded that on the first floor he had vacated any room which was let out by landlord to Girraj Kishore or to any other person. Amin also did not find any portion on first or second floor let out to any tenant except the portion in dispute let out to respondent no.2.
The second ground taken by the appellate court was that in the ancestral house of landlord situate in another mohalla he had a share and one room was in his possession. Landlord was residing in the remaining portion of the building of which accommodation in dispute is a part. He is not supposed to divide his family and ask some of his family members to reside in the house in another mohalla. In any case in the ancestral house landlord had available with him only one room. In view of the finding of the Prescribed authority regarding number of family member of landlord and extent of accommodation available to him (which finding was not disturbed by the lower appellate court) it could not be said that even if the room available to the landlord in his ancestral house was taken into consideration landlord would not be having any bonafide need for the portion in dispute.
Regarding comparative hardship appellate court held that tenant had no shop available to him in a vacant state hence he would suffer greater hardship. Tenant did not bring on record anything to show that he made any efforts to search alternative accommodation after filing of the release application. This was sufficient to tilt the balance of comparative hardship against the tenant (vide B.C. Bhutada vs. G.R. Mundada A.I.R. 2003 S.C. 2713).
Accordingly, in my opinion judgment and order passed by the lower appellate court is patently erroneous in law and liable to be set aside.
Writ petition is therefore allowed. Judgment and order passed by the appellate court is set aside. Judgment and order passed by the trial court is restored.
Tenant-respondents are granted six months time to vacate provided that
(1) Within one month from today they file an undertaking before the Prescribed Authority to the effect that on or before the expiry of aforesaid period of six months they will willingly vacate and handover possession of the accommodation in dispute to the landlord-petitioner.
(2) For this period of six months which has been granted to the tenants to vacate they are 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 any of these conditions, tenants/respondents shall be evicted after one month through process of Court.
It is further directed that in case undertaking is not filed or Rs.3,000/- are not deposited within one month then tenant shall be liable to pay damages at the rate of Rs.2,000/- per month since after one month till the date of actual vacation.
Similarly if after filing the aforesaid undertaking and depositing Rs.3,000/- the accommodation in dispute is not vacated after six months then damages for use and occupation shall be payable at the rate of Rs.2,000/- per month since after six months till actual vacation.
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