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SRI KAMAL KISHORE KHANNA versus SRI BRIJ MOHAN SHARMA

High Court of Judicature at Allahabad

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Sri Kamal Kishore Khanna v. Sri Brij Mohan Sharma - WRIT - A No. 1056 of 2006 [2006] RD-AH 19151 (13 November 2006)

 

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

Civil Misc. Writ Petition No. 1056 of 2006

Sri Kamal Kishore Khanna

Vs.

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

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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

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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.

13.11.06

Gc.


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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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