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PRATAP SHANKER BAJPAI versus D.J., KANPUR & OTHERS

High Court of Judicature at Allahabad

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Pratap Shanker Bajpai v. D.J., Kanpur & Others - WRIT - A No. 3011 of 1994 [2005] RD-AH 6915 (5 December 2005)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

(Reserved)

Civil Misc. Writ Petition No. 3011 of 1994

Pratap Shanker Bajpai Versus Appellate Court/ VIII Additional District Judge, Kanpur and others.

Hon'ble S.U.Khan J

This is landlord's writ petition arising out of eviction/ release proceedings initiated by him against original tenant respondent No.2 Sri Bachchan Lal (since deceased and survived by legal representatives) on the ground of bonafide need under section 21 of U.P Act No.13 of 1972 in the form of Rent Case No. 83 of 1985. Prescribed authority / ACMM (VII), Kanpur Nagar through judgment and order dated 28.5.1992, allowed the release application. Against the said judgment and order original tenant respondent No.2 filed Rent Appeal No. 163 of 1992. VIII Additional District Judge, Kanpur Nagar through judgment and order dated 15.10.1993, allowed the appeal, set-aside the judgment and order passed by the prescribed authority and dismissed the release application of landlord petitioner hence this writ petition.

Property in dispute is a shop situate on ground floor.

Annexure 1 to the writ petition is a copy of the amended release application. In Para 8 of the release application it was clearly mentioned "that there is no room on the road side in the premises No. 87/143-A Dev Nagar, Kanpur except the shop occupied by the opposite party which is suitable to be made office/ Chamber by the applicant 1/1 Pratap Shanker Bajpai, Advocate to attend and deal with his client" (Release application was filed by Dev Narain Bajpai who died during pendency of proceedings before the trial court and was substituted by his son P.S.Bajpai who is petitioner in this writ petition). After the death of Dev Narain Bajpai, release application was got amended and it was stated that according to the will executed by late Sri D.N.Bajpai, accommodation in dispute and first floor accommodation came in possession of petitioner, P.S.Bajpai. It was further stated that petitioner P.S.Bajpai was Assistant Manger in FCI from where he had voluntarily retired since 31.1.1985 and was practicing thereafter as advocate in Kanpur Courts. In the release application absolutely no need for residential purpose was set-up. Petitioner P.S.Bajpai also filed his affidavit before the trial court. In Para 11 of the said affidavit copy of which is annexure 3 to the writ petition, it was stated that petitioner had in his possession five rooms on both the floors (ground floor and the first floor) and he was using the said rooms for residential purpose. No allegation was made that he required any additional accommodation for residential purpose. It appears that some evidence was adduced that petitioner was heart patient however release application was not got amended and no need for residential purpose was set-up.

Prescribed authority appointed an Advocate Commissioner to inspect the premises in dispute and the accommodation in possession of the landlord. Copy of the report is annexure 6 to the writ petition. Advocate Commissioner found that on the ground floor just adjacent to the shop in dispute a big room admeasuring 14 feet by 10 feet was in occupation of the landlord which contained a bed, T.V Set , almirah and books. Lower appellate court on the basis of the report of advocate commissioner came to the conclusion that on the ground floor landlord had sufficient accommodation for establishing his chamber which he had not disclosed in the release application.

In my opinion absolutely no fault can be found with the finding of the lower appellate court to the effect that petitioner could not prove his bonafide need. Non-disclosure of the big room on the ground floor by the landlord was fatal. Secondly the need set up in the release application completely stood satisfied by the said room.

Learned counsel for the landlord petitioner has vehemently argued that landlord was also heart patient and required the room shown in the commissioner's map on the ground floor for residential purpose in order to avoid ascending or descending stairs which was harmful for his heart. Absolutely no such plea was taken in the release application.

Accordingly I do not find any error in the judgment and order passed by the revisional court. Writ petition is therefore dismissed.

I have held in Khursheeda Vs. A.D.J 2004(2) ARC 64 and H.M.Kichlu Vs. A.D.J 2004(2) ARC 652 that while granting relief against eviction to the tenant in respect of building covered by Rent Control Act or while maintaining the said relief already granted by the courts below writ court is empowered to enhance the rent to a reasonable extent. Property in dispute is a shop, which is situate in Kanpur which is most expensive city of Uttar Pradesh.

Accordingly it is directed that with effect from January 2006 onwards tenant respondent shall pay rent to the landlord petitioner at the rate of Rs. 750/- per month.

Waqar

Dated: 5.12.2005


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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