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Atama Ram v. Vith A.D.J. - WRIT - A No. 16858 of 1992  RD-AH 6696 (1 December 2005)
Civil Misc. Writ Petition NO. 16858 of 1992
Atma Ram Versus VI Additional District Judge and others.
Hon'ble S.U.Khan J
This is tenant's writ petition arising out of eviction / release proceedings initiated by landlord respondent No. Sri Kapil Dev on the ground of bonafide need under section 21 of U.P Act No. 13 of 1972 in the form of P.A case No. 65 of 1988. Prescribed authority/ Munsif (City), Saharanpur Sri Hukum Singh allowed the release application on 19.9.1990. Against the said judgment and order tenant petitioner filed appeal being R.C Appeal No Nil. of 1990, Atma Ram Vs. Kapil Dev. VI Additional District Judge, Saharanpur through judgment and order dated 17.4.1992, copy of which is annexure 14 to the writ petition, dismissed the appeal (in annexure 14 number of appeal is not mentioned). This writ petition is directed against the aforesaid judgment and order passed by the prescribed authority as well as appellate court.
The main point which has been argued by learned counsel for the tenant petitioner is that District Judge, Saharanpur through order dated 31.5.1990 passed under section 3(e) of U.P Act No. 13 of 1972 had divested Sri Hukum Singh with all his powers to decide the release applications under section 21 of the Act in respect of buildings within Tehsil Saharanpur (where property in dispute is situate) and had appointed Km. Manju Rani Gupta, I Additional Civil Judge, Saharanpur as prescribed authority in respect of the buildings of the said area. Copy of the said order is annexure 7 to the writ petition. In the said order, it was also mentioned that all pending P.A cases (under section 21 of the Act) pertaining to Tehsil Saharanpur stood transferred to the Court of I Additional Civil Judge, Saharanpur. Thereafter tenant also filed some applications before Sri Hukum Singh who was City Munsif at that time to the effect that he had ceased to have any jurisdiction. According to the learned counsel for the tenant petitioner, the above judgment of Sri Hukum Singh learned Munsif acting as prescribed authority is utterly without jurisdiction.
Along with the counter affidavit a letter sent by Sri Hukum Singh to the District Judge has been annexed as annexure 2. In the said letter Sri Hukum Singh intimated that in seven P.A cases pertaining to buildings situate in Tehsil Saharanpur (including the case in question) he had heard the arguments and only decision was to be delivered hence the said cases might be permitted to be decided by him. The said letter was sent on 19.6.1990. Annexure CA 3 is a copy of order of District Judge, Saharanpur of the same date i.e. 19.6.1990. Through the said order request of Sri Hukum Singh was accepted and it was directed that the said cases could be retained and decided by him and for those cases he would be treated as prescribed authority. Under section 3(e) of the Act, District Judge has got power to pass such an order. In respect of application of the petitioner, which was filed before Hukum Singh, Sri Hukum Singh passed the order on 7.8.1990, copy of which is annexure CA 4. In the said order, it was mentioned that under orders of District Judge dated 19.6.1990 he was competent to decide the said case. Learned counsel for the tenant petitioner has argued that he has not been able to obtain copy of order dated 19.6.1990 and it is not available on any file also. However when the prescribed authority in its order dated 7.8.1990 passed in the case in question mentioned that such an order was passed no further enquiry in this regard is required. Probably it was for this reason that even though in the ground of appeal this ground was taken however it was not pressed hence there was no mention of this ground in the judgment of the appellate court.
As far as merit of the case is concerned, absolutely no fault can be found with the findings recorded by both the courts below in respect of bonafide need and comparative hardship in favour of the landlord.
Learned counsel for the petitioner has argued that an application for inspection of the accommodation available to the landlord was filed before the prescribed authority but prescribed authority did not inspect the said building. This argument is of no value. Presiding Officer of the appellate court himself inspected the building at the disposal of the landlord. In the judgment of appeal, details of the said accommodation are mentioned. In any case landlord is only tenant in the said accommodation. Both the courts below have found that family of the landlord is quite big and one of the daughters of landlord Ms. Beena had been divorced by her husband and she alongwith her two children was residing with the landlord. In respect of comparative hardship both the courts below found that tenant did not make any efforts to search alternative accommodation. In view of Supreme Court authority reported in B.C.Bhutada Vs. G.R.Mundada AIR 2003 SC 2713, this was sufficient to tilt the balance of hardship against the tenant.
In respect of question of jurisdiction learned counsel for the landlord respondent has cited Purshottam Vs. Sheo Prasad 1972 ALJ 742. In the said authority, it has been held that even if there is any infirmity in the order of the trial court it stands cured, if appeal is filed before competent court. Whether release application was decided by Munsif or by Additional Civil Judge in both the cases appeal would have been maintainable before the District Judge.
Accordingly there is no merit in the writ petition and it is dismissed.
Tenant petitioner is granted six months time to vacate provided that-
(1) Within one month from today he files an undertaking before the prescribed authority to the effect that on or before the expiry of period of six months he 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 petitioner to vacate he is required to pay Rs. 3000/- (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.
It is further directed that in case undertaking is not filed or amount of Rs. 3000/- is not deposited within one month then tenant petitioners shall be liable to pay damages at the rate of Rs.2000/- per month since after one month till the date of actual vacation.
Similarly if after filing the aforesaid undertaking and depositing Rs. 3000/- the property in dispute is not vacated on the expiry of six months then damages for use and occupation shall be payable at the rate of Rs.2000/- per month since after six months till actual vacation.
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