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Sri Kamal Kishore Khanna v. Sri Brij Mohan Sharma - WRIT - A No. 1056 of 2006  RD-AH 19151 (13 November 2006)
Civil Misc. Writ Petition No. 1056 of 2006
Sri Kamal Kishore Khanna
Sri Brij Mohan Sharma
Hon. Sanjay Misra, J.
Heard Sri K.K.Arora, learned counsel for the petitioner and Ms. Rama Goel, learned counsel appearing on behalf of the respondent.
Counter affidavit and rejoinder affidavit have been exchanged and with the consent of learned counsel for the parties, this writ petition is being disposed of finally at this stage itself.
By means of this writ petition, the petitioner seeks to challenge the judgment and order dated 16.10.2004 passed by the Prescribed Authority, Moradabad in P.A. case no.45 of 2001 as also the judgment and order dated 8.11.2005 passed by the Additional District Judge, Court No.7,Moradabad in Rent Control Appeal No.36 of 2004.
The petitioner is a tenant of the shop in question measuring 10' x 19' on a monthly rent of Rs.20/- per month. The respondent landlord filed an application under section 21(1) (a) of U.P.Act No.13 of 1972 setting up the need that he requires the shop in question for his son who is a graduate and qualified and intends to set up computer training centre in the shop in question. The prescribed authority found the need of the respondent landlord's son to be genuine and bonafide and the said finding has been affirmed by the appellate court.
On the question of comparative hardship the prescribed authority found that it would be more to the respondent landlord in case the shop was not released and therefore, it found that the premises in question was liable to be released in favour of the
respondent landlord. The appellate court has confirmed the aforesaid finding of the prescribed authority.
Learned counsel for the petitioner has submitted that earlier the petitioner had voluntarily vacated one room in the premises in question of which he was tenant in favour of landlord by mutual consent and his contention is that the said room is lying vacant and not being used by landlord therefore the need of the landlord could be satisfied from the aforesaid room. He submits that in the alternative he is prepared to vacate half of the shop in question so that the need of the landlord may be met and the petitioner's business may also continue in the shop. He has submitted that the question of release of a portion of shop has not been considered by the courts below and as such the impugned orders can not be sustained on that ground. Lastly he has submitted that since the room vacated by the petitioner voluntarily is lying vacant it was incumbent upon the authority concerned to make a spot inspection with respect to availability of the room and then decide the release application of the landlord.
On the other hand learned counsel for the respondent has submitted that in so far as spot inspection is concerned the same was found not to be required by the court below in as much as it was specifically held that the petitioner has not been able to establish on record any evidence whatsoever that he had in his occupation another room which he had voluntarily vacated in favour of landlord. It is contended that in the absence of such proof by the tenant there was no occasion for the courts below to consider the availability of the said room for use by the landlord for his business. It is also contended that the said room in the premises is in the interior portion of the building and is being used for residential purpose and therefore can not be exchanged for commercial purposes. Learned counsel for the respondent has further submitted that in so far as
question of partial release is concerned the shop has a frontage of 10 feet and depth of 19 feet therefore partial release of the shop can not be possible since a frontage of 5 feet is too small. It is submitted that the petitioner was originally doing kerosene oil business and thereafter he started food grain business and his license has since been cancelled. It is stated that the petitioner has an alternative shop in the city which is being run by his son and he has got available the said shop of his livelihood.
Having heard learned counsel for the parties and perused the impugned order on the aforesaid points it is found that the bonafide need of the son of the landlord has been found to exist by both the courts below. The findings recorded to such effect do not suffer from error on the facts or in law and as such require no interference in exercise of writ jurisdiction. In so far as exchange of shop with another room in the premises is concerned the said question was considered by the courts below and it was found that there was no evidence on behalf of the petitioner to indicate that said room was ever in the tenancy of the petitioner at any point of time therefore it has not been proved that the said room was vacated by the petitioner in favour of the respondent landlord voluntarily. Having recorded the said finding the courts below concluded that exchange of shop with the room could not be possible in as much as the said room was being used for residential purpose by the landlord and the tenant can not be permitted to advise the landlord in any manner how to use premises. In so far as spot inspection is concerned both the courts below had refused the same on valid grounds.
For the aforesaid reasons no error can be found in the concurrent findings of courts below.
The writ petition lacks merits and is accordingly dismissed. No order is passed as to costs.
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