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Jagdish Kumar v. Ramesh Chanddra Sharma - WRIT - A No. 45866 of 2004 [2006] RD-AH 19085 (12 November 2006)


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Court no. 7

Civil Misc. Writ No. 45866  of 2004

Jagdish Kumar ... Petitioner


Ramesh Chandra Sharma                 ...       Respondent

Hon'ble Rakesh Tiwari, J

Heard counsel for the parties and perused the record.

This is tenant's petition. The case of the petitioner is that he is tenant of ground floor in House no. 18/205, Kursawan, Ram Narain Bazar, Kanpur Nagar.  

Respondent-landlord filed release application under Section 21(1)(a) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 ( hereinafter referred to as ''the U.P. Act No. XIII of 1972') on the ground or personal need.

The petitioner contested the release application by filind written statement denying the averments contained in the release application and stating that the accommodation, in possession of the landlord, was sufficient.

After considering the evidence led by both the parties, the trial Court allowed the release application vide judgment and decree dated 9.8.2002.

Aggrieved, the petitioner preferred Rent Control Appeal No. 86 of 2002 before the District Judge, Kanpur Nagar which has been dismissed vide judgment and order dated 25.9.2004.

Aggrieved, the petitioner has invoked the writ jurisdiction by means of the instant writ petition.

At the outset, counsel for the respondent-landlord brought it to the notice of the Court that the tenant-petitioner had purchased premises no. 350, Hanspuram, Hamirpur Road, Kanpur and the voter list, contained in Annexure C.A.-1 shows that the petitioner was residing in the said accommodation.

Counsel for the petitioner frankly conceded that the petitioner had purchased the aforesaid accommodation, but she contended that owing to acute fiancial crisis, the petitioner sold the same and that the aforesaid property was purchased and disposed of prior to filing of the release application.

Hon'ble the Apex Court in a catena of cases has held that Act No. XIII of 1972 applies with full force to residential as well as commercial buildings, hence, in view of acquisition of alternate accommodation by the tenant, explanation (i) to Section 21(1) of the Act automatically applies to the facts of the instant case, which is as under :-

"Explanation- In the case of a residential building-

(i) where the tenant or any member of his family who has been normally residing with him or is wholly dependent on his has built or has otherwise acquired in a vacant state or has got vacated after acquisition a residential building in the same city, municipality, notified area or town area, no objection by the tenant against an application under this sub-section shall be entertained."

The petitioner-tenant having acquired alternate accommodation, irrespective of the fact whether it was acquired prior to filing of the release application or thereafter, he has no legal right to continue in possession of the disputed accommodation and cannot take any objection regarding bona fide need and comparative hardship in the application filed for release of the accommodation in the facts and circumstances of this case.

The object of the U.P. Act No. XIII of 1972 is to regulate rent and letting to the tenants and their eviction.  Certain categories of tenants have been given no right to continue in the tenanted accommodation, one of which is that if a tenant or any member of his family acquires a residential accommodation in a vacant state.  This is because after acquiring alternate accommodation, it is expected that the tenant will move to his own house and the tenanted accommodation vacated by him would be made available to the needy person(s).

  U.P. Act No. XIII of 1972 is a beneficial piece of legilslation.  It is not in dispute that the petitioner had acquired a house of his own in vacant state in which he was living, which is apparent from the voter's list.  It appears that the petitioner was retaining the possession over the tenanted accommodation with ulterior motive.  Strictly applying the provisions of explanation (i) to Section 21(1) of the U.P. Act No. XIII of 1972 to achieve the aim and object of the  U.P. Act No. XIII of 1972, the petitioner cannot be permitted to remain any further in the accommodation, in dispute.  If this is permitted and a lenient view is taken, such tenants would be taking such advantage, which is not permissible in law. The need of others who are in que and to whom roof is not available is question of prime importance, particularly on the facts and in the circumstances of the case where a tenant or any member of his family has acquired a residential building, in vacant state, he cannot gain by selling the house and then pleading that he has no roof over his head when the release application is filed.

Accordingly, the writ petition fails and is dismissed with the direction to the petitioner-tenant to hand over peaceful possession of the accommodation, in dispute, to the respondent-landlord within a period of two months from today failing which, he will be liable to be evicted by cocercive process, in accordance with law, with the aid of local Police. No order as to costs.

Dated 12.12.2006



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