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Smt. Lakhmiri Devi And Others v. Anwar Ali - WRIT - A No. 24997 of 2006  RD-AH 14338 (24 August 2006)
Judgment Reserved on 11.8.2006
Judgment delivered on 24. 8.2006
Civil Misc. Writ Petition No. 24997 of 2006
Smt Lakhmiri Devi and others Versus Anwar Ali
Hon'ble S.U.Khan J
Heard learned counsel for the parties.
This is tenants' writ petition arising out of eviction/ release proceedings initiated by landlord respondent on the ground of bonafide need under section 21 of the U.P. Act No. 13 of 1972 in the form of R.C Case No. 24 of 1996 on the file of prescribed authority / Additional Civil Judge (S.D), Court No. 12 Bulandshahr. The release application was allowed on 21.8.2002. Against the said judgment and order tenant petitioners filed R.C Appeal NO. 7 of 2002 which was dismissed on 26.4.2006 by A.D.J / Special Judge (S.C& S.T Act), Bulandshahr hence this writ petition.
According to the allegations in the release application, the property in dispute had been purchased by the landlord respondent on 14.1.1991 and petitioners were continuing as the tenants of the said property since before its purchase by the landlord. It was further pleaded that initially Sheobaran Singh was tenant and after his death tenants petitioners inherited the tenancy. Petitioner No.1 is the widow of Sheobaran Singh and petitioner No.2 and 3 are sons of Sheobaran Singh. During arguments, it was stated that petitioner No.1 is at present aged about 98 years. In the property purchased by the landlord there was another portion on the ground floor, which was in possession of another tenant who vacated the same on 3.12.1992. It was further pleaded by the landlord that he had three married sons and four daughters. It was further stated that the sons of original tenant were not residing at Bulandshahr and widow of the original petitioner i.e. Petitioner No.1 was residing with her sons as it was not possible for her to reside alone in old age. It was admitted that petitioner No.2 and 3 were residing in Nainital and Dehradun. It is also evident from particulars given in the title of the writ petition.
Landlord stated that he required the accommodation in dispute for his and his family's residence as he was residing in a house, which contained only two rooms and belonged to one of his sons. Property in dispute consists of four rooms, tin shed, Kitchen, Bathroom & latrine etc. It was further stated that on the first floor of the accommodation in dispute there were two rooms, store, Kitchen, bathroom etc in which one of the daughters of the landlord was residing and as that was in a dilapidated condition hence it was later on vacated by the said daughter of the landlord. Both the courts below found the need of the landlord to be bonafide. Question of comparative hardship was also decided against the tenants mainly on the ground that two male tenants were admittedly residing in other cities and their mother was also residing with them.
Learned counsel for the petitioner has mainly argued that the adjoining accommodation which was in possession of another tenant Jang Bahadur (and thereafter Smt Manju Sirohi) was got vacated by the landlord for residential purpose but he started using the same for commercial purpose hence landlord's need was not bonafide. In the counter affidavit, it has been stated that petitioner No.2 has constructed his house in district Udham Singh Nagar and petitioner No.3 has constructed his house in Meerut. These assertions have not been denied in rejoinder affidavit. In para 4 of the rejoinder affidavit, it has been stated that petitioner No.1 is regularly residing in premises in dispute. In para 5 of the counter affidavit, it is stated that petitioner No.1 was more than 85 years of age. This fact has also not been denied (however it was orally argued by learned counsel for the landlord that at present petitioner No.1 is around 98 years of age).
As far as vacation of adjoining portion is concerned, in para 9 of the counter affidavit, it has been stated that even though the release application against Smt. Manju Sirohi the other tenant was filed on the ground of residential need and under compromise it was allowed however under compulsion of circumstances landlord had to provide the said accommodation to one of his sons for commercial purpose. Neither before the courts below nor before this court copy of release application filed against Smt. Manju Sirohi has been filed. Copy of compromise application had also not been field. The entire house containing the accommodation in dispute as well as accommodation in possession of Manju Sirohi was purchased in 1991. It is not clear as to how in 1992 release application under section 21 was filed as by virtue of first proviso to section 21(1) of U.P. Act No. 13 of 1972 no release application can be filed for three years after purchase. However the crux of the matter is that the release application giving rise to the instant writ petition was filed after four years from getting the possession from the other tenant Manju Sirohi. Both the courts below have concurrently held that businesses of the sons of landlord are of such a large scale that they are genuinely required the accommodation vacated by Smt Manju Sirohi for commercial purpose. Both the courts below have found that the landlord has got no other accommodation for residential purpose and all the accommodation available to him is being used for commercial purpose. As far as petitioner No.1 is concerned she has been found not to be residing in the house in dispute. Petitioner No.2 is S.D.O/ J.E in Electricity Board, Nainital and petitioner No.2 is Executive Engineer in Electricity Board Dehradun (as per their description in the title of the writ petition itself). The rent of the house in dispute is negligible.
In view of the above, I do not find least error in the concurrent findings of bonafide need and comparative hardship recorded by both the courts below.
Writ petition is therefore dismissed.
Petitioners are granted time till 31.1.2007 to vacate provided that :
1. Within one month from today petitioners file an undertaking before the prescribed authority to the effect that on or before 31.1.2007 they will willingly vacate and handover possession of the property in dispute to the landlord-respondent.
2. For this period, which has been granted to the petitioners to vacate they are required to pay Rs. 9000/- (at the rate of Rs.1500/- per month for the period from 1.8.2006 to 31.1.2007) as damages for use and occupation. This amount shall also be deposited within one month before the trial court and shall immediately be paid to the landlord-respondent.
It is further directed that in case undertaking is not filed or amount of Rs. 9000/- is not deposited within one month then tenant petitioners shall be liable to pay damages at the rate of Rs.3000/- per month since after one month till the date of actual vacation.
Similarly, if after filing the aforesaid undertaking and deposit of Rs. 9000/- the property in dispute is not vacated on or before 31.1.2007 then damages for use and occupation shall be payable at the rate of Rs.3000/- per month since 1.2.2007 till actual vacation.
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