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Mohd. Abid And Others v. State Of U.P. And Another - WRIT - A No. 68648 of 2005 [2005] RD-AH 5147 (28 October 2005)


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(Court No.51)

Civil Misc. Writ Petition No.68648 of 2005

Mohd. Abid and others  Vs.  State of U.P. and another


This is tenants' writ petition arising out of eviction/release proceedings initiated by landlady-respondent no.2 Smt. Zarina Begum on the ground of bonafide need under Section 21 of U.P. Act No.13 of 1972.  Property in dispute is a shop.  The landlady set up the need for establishing one of her sons Mohd. Afzal in  business.  Release application was registered as R.C. case no.24 of 1999.  Prescribed authority/JSCC, Bulandshahar through judgment and order dated 6.10.2003 allowed the release application.  Petitioners filed R.C. appeal no.16 of 2003 against the said judgment and order.  A.D.J. Court No.3, Bulandshahar through judgment and order dated 20.10.2005 dismissed the appeal hence this writ petition.

The main point argued by learned counsel for the petitioner is that the husband of the landlady-respondent no.2 was carrying on his business from a shop belonging to him which according to the own admission of Mohd. Afzal was closed hence Mohd. Afzal could start his business from the said shop.  Copy of the affidavit of Mohd. Afzal is Annexure-2 to the writ petition.  In para-7 of the said affidavit the only thing which was stated was that his father's business from the other shop was not flourishing as he was doing job work on welding machine and kharad machine.  However, due to erratic supply of electricity, work was badly affected and that his father's shop was not clicking up inspite of installing generator.  

In my opinion there is no such admission in the said affidavit that his father has completely closed the business and shop is vacant.  In business one often faces lean phase.  In any case if the husband of the landlady was not getting proper return from his business from the other shop he could at any point of time change his business for which no one could prevent him.  In view of this I do not agree with the contention of the learned counsel for the petitioner that the said shop must be treated to be available for Mohd. Afzal son of landlady-respondent no.2.  Regarding finding of comparative hardship I do not find any error in the impugned orders.  Learned counsel for the petitioner has also stated that some other persons also filed affidavits that business of husband of landlady was almost closed or closed.  Even if due to recurring loss a particular business run by a person is closed, it cannot be said that he is not entitled to start any other business from his shop.  It has not been pointed out by any of the witness of tenant that husband of the landlady had engaged himself in any other profession.

Accordingly there is no merit in the writ petition hence it is dismissed.

Tenant-petitioners 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 property in dispute to the landlord-respondent.

(2) For this period of six months which has been granted to the petitioners 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-respondent.

In case of default in compliance of any of these conditions tenants petitioners shall be evicted through process of Court after one month.

It is further directed that in case undertaking is not filed or Rs.3,000/- are not deposited within one month then tenant petitioner 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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