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MITRASEN ASHOK KUMAR AND OTHERS versus RAM NIWAS

High Court of Judicature at Allahabad

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Mitrasen Ashok Kumar And Others v. Ram Niwas - WRIT - A No. 55082 of 2005 [2005] RD-AH 7428 (13 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. 55082 Of 2005.

Mitrasen Ashok Kumar and others                              ...Tenants/Petitioners.

Versus

Ram Niwas                                                               ...Respondent/Landlord.

.........

Hon'ble Anjani Kumar, J.

The petitioners-tenants of a shop by means of this writ petition under Article 226 of the Constitution of India question the orders passed by the prescribed authority under the provisions of U.P. Act No. 13 of 1972 ( in short 'the Act') in P.A. Case No. 29 of 2001 dated 22.5.2004 and also the order passed by the appellate authority dated 21.5.2005 whereby the appellate authority has affirmed the order passed by the prescribed authority releasing the accommodation in dispute in favour of the respondent-landlord under the provisions of Section 21 of the Act.

The brief facts giving rise to the filing of the present writ petition are that the respondent-landlord filed an application under Section 21 (1) (a) of the Act with the prayer that his application may be allowed and the accommodation in dispute which has been shown in the map attached to the application by the letters A,B,C,D,  may be released in favour of the landlord. That the applicant is the landlord of the accommodation in dispute and the petitioners are the tenants of the accommodation in dispute at the monthly rent of Rs. 100/-. the landlord has three grown-up sons namely, Sanjay Mittal, Vipin Mittal and Manoj Mittal who have already been married. Sanjay Mittal is the eldest son and is residing in House No. 37/2A Nai Mandi, Muzzafarnagar. The second son, Vipin Mittal is residing with his family on the first floor of the building in dispute and accommodation in his possession was shown in the map attached to the application by letters J,K,L,M,N,O. The landlord has asserted that the family of the landlord is growing family and they do not have sufficient accommodation at their disposal for living in the building in dispute. It has also been asserted that his son, Sanjay Mittal has social and political status and he is associated with many political and business organizations and is holding higher office in these organizations. The visitors who visit Sanjay Mittal are in large number and the accommodation at the disposal of Sajay Mittal in the building in dispute only consists of only one bed room and one kitchen whereas he requires at least two bedrooms, one drawing room, loby, toilet and one bathroom. The portion of the building which has been shown as EFGH, landlord wants to get demolished this portion and reconstruct the same to suit the need of his eldest son, Sanjay Mittal. It is further asserted that the accommodation which is at present at the disposal of Sanjay Mittal when available will be utilized by Manoj Mittal and thus, his requirement will also be fulfilled by release of the accommodation in dispute as stated in the application. It is further asserted that the tenants is in possession of three shops, two go-downs and some open space which he has already purchased in the name of different family members and even the business, that is being carried on by the tenant, has been shifted to another building No. 30-B/1 which is in just front of the shop in dispute and they are carrying on their business under the name and style of M/s Chandan Sweet House and only one Karigar sits in the shop in dispute with a view to occupy it. The aforesaid application was contested by the tenants denying all allegations except that he is the tenant. Both the parties adduced the evidence before the prescribed authority. It has been asserted on behalf of the tenant that originally the father of the tenant Mitrasen was the tenant and after his death the tenancy was devolved on his heirs and further that this application is liable to be dismissed on the grounds that the daughters of Mitrasen and other heirs have not been impleaded as party in the application. The prescribed authority considered the aforesaid argument and in view of the law laid down by the Apex Court and this Court in the case reported in 1995 (1) ARC 220; Harish Tandon Versus Additional District Magistrate, Allahabad, U.P. and others, 1998 (2) AWC 1438; Moharram Ali and another Versus Prescribed Authority, Allahabad and others, and 1989 (2) ARC SC 26; H.C. Pandey Versus G.C. Paul wherein it is held that after the death of the original tenant all the heirs succeed as joint tenant and single tenancy continued on the question of impleadment of heirs the prescribed authority relied upon the law that impleading one of joint tenant is sufficient and it is not necessary to implead all the joint tenant as party. For this purpose the prescribed authority relied upon  1995 (1) ARC 220; Harish Tandon Versus Additional District Magistrate, Allahabad, U.P. and others, 1998 (2) AWC 1438; Moharram Ali and another Versus Prescribed Authority, Allahabad and others, and 1989 (2) ARC SC 26; H.C. Pandey Versus G.C. Paul. On the question of bonafide requirement the prescribed authority arrived at the conclusion that the landlord has established that his need is bonafide as is clear from the material available on record. It  rejected the argument that the tenants are in occupation of the accommodation for the long time. In view of the law laid down by the Apex Court and this Court in the case reported in 2003 Manju Cases page 20 (SC); Sushila Versus IInd Additional District Judge, Banda and others and other cases. On the question of comparative hardship the prescribed authority arrived at the conclusion that since the tenant has already occupied the shop just in front of the shop in dispute the tilt of the comparative hardship is also in favour of the landlord. The prescribed authority therefore, allowed the application and directed for release of the shop in favour of the landlord. Aggrieved thereby the petitioner's-tenant preferred an appeal before the appellate authority. Before the appellate authority the same arguments were advanced as were raised before the prescribed authority. The appellate authority after considering the same affirmed the findings of the prescribed authority with regard to the bonafide requirement. The appellate authority also affirmed the findings on the question of comparative hardship. The argument that all the heirs of the tenant have not been impleaded, the appellate authority affirmed the view taken by the prescribed authority. Thus, the appeal by tenant-petitioner was dismissed.

Before this court the same arguments were advanced as were advanced before the prescribed authority as well as appellate authority on the question of bonafide requirement ad comparative hardship. In view of the law laid down by the Apex Court in the case of Ranjeet Singh Versus Ravi Prakash reported in [2004 (1) ARC 613], this Court will not sit in appeal over the findings recorded by the prescribed  authority and affirmed by the appellate authority unless the findings are demonstrated to be either perverse or suffering from any error much less manifest error of law. Learned counsel for the petitioners has not been able to demonstrate that the findings are either perverse or suffering from any error much less manifest error of law. In this view of the matter, this Court declines to interfere with the orders impugned in the present writ petition. On the question of non-joinder of all the heirs of tenant, the law in this regard is settled by the Apex court and this Court. In view of the aforesaid law the argument raised on behalf of the petitioner that all the heirs of the petitioner have not been impleaded, has no force and is rejected.

In view of the above discussion, this writ petition has no force and is dismissed.

Dated:

HR


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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