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Ram Chandra Gupta v. Smt. Alhmadi Begum And Others - WRIT - A No. 11112 of 1995  RD-AH 94 (6 January 2005)
Court No. 26
W.P. No. 11112 of 1995.
Ram Chandra Gupta Petitioner.
Smt. Alhamadi Begum & others. Respondents.
Hon. Vikram Nath,J.
This writ petition is directed against the judgment and order dated 22.01.1994, passed by the Prescribed Authority, Etawah, and the judgment and order dated 31.03.1995 passed by the Special Judge, E.C.Act, Etawah, whereby the application for release under Section 21(1)(a) of the U. P. Urban Buildings (Regulation of Letting, Rent And Eviction) Act, 1972, filed by the respondent No. 1 for eviction of the petitioner, has been allowed.
Respondent No. 1, Smt. Alhamadi Begum is the owner and landlady of the premises in dispute, in which there were 3 tenants, namely, Bhagwan Das, Ram Chandra Gupta (petitioner) and Radha Krishna. The three persons were occupants of two shops on the ground floor one in the tenancy of Bhagwan Das and other of the petitioner and one room residential accommodation of the first floor was in the tenancy of Radha Krishna. The landlady filed an application for release of the premises from the occupation of the 3 tenants mentioned above, stating that there was need for establishment of office of two sons, who had started practising law. The application for release was contested by all the 3 tenants. It was alleged in the written statement that the landlord had sufficient accommodation available with her in the city to set up the office of her two advocate sons and that need was not bonafide and that it was just an attempt to oust them.
The Prescribed Authority after considering the material evidence on record vide judgment dated 22.1.1994 held that the need of the landlord is bonafide and after considering the comparative hardships between the tenants and the landlady, it recorded a finding that the landlady would suffer greater hardship. The reasons for recording this finding of hardship in favour of the landlady were firstly, that Radha Krishna and Bhagwan Das had their own accommodation available in the city of Etawah where they could shift, and in so far as the present petitioner Ram Chandra Gupta is concerned, it was observed that he had not made any efforts to search for alternative accommodation.
Against the judgment of the Prescribed Authority, two appeals were filed; one by Ram Chandra Gupta (petitioner) being P.A. Appeal No. 01 of 1994, and the other filed by Radha Krishna, in P.A. Appeal No. 02 of 1994. The Special Judge, Etawah, vide judgment dated 31.03.1995 dismissed both the appeals and affirmed the finding recorded by the said authority.
Aggrieved by the judgment dated 31.03.1995, two writ petitions were filed before this Court being C.M.W.P. NO. 12624 of 1995 Bhagwan Das & another vs. Smt. Alhamdi Begum and C.M.W.P.No. 11112 of 1995 Ram Chandra Gupta vs. Smt. Alhamdi Begum. The writ petition filed by Bhagwan Das and Radha Krishna, was dismissed on 23.09.1997 and Spl. Leave Petition against the same preferred before the Apex Court bearing S.L.P. (Civil) No. 2298 of 1998 was also dismissed vide order dated 23.02.1998. The present writ petition filed by third tenant Ram Chandra Gupta, has now come up for hearing.
I have heard Sri P.N.Saxena, learned Senior Counsel, assisted by Ms. Sanju Lata, Advocate for the petitioner and Sri M.M.D. Agarwal, learned counsel for the respondent.
A preliminary objection was raised by learned counsel for the respondent that the judgments of the Courts below having achieved finality up to the Apex Court in context with the Writ Petition No.12624 of 1995, therefore, nothing remains to be heard in the present petition and it deserves to be dismissed on this score only. It is further contended that the findings of the Courts below on the question of bonafide need and comparative hardship being findings of fact and having been held to be correct even by the Apex Court the petitioner cannot be permitted to assail the same in the present writ petition. The argument advanced is that this petition stands concluded by the correct findings of fact recorded up to the Apex Court. Learned counsel for the petitioner made a serious attempt to challenge the finding on bonafide need and comparative hardship recorded by both the Courts below as being perverse having been passed on misreading and in ignorance of the material evidence on record.
It would be pertinent to note that the landlady had set up a single and compact need for the three premises. The need was for one purpose of setting up offices for her two sons. The question of bonafide need had nothing to do with the tenants or their hardships as the landlady had to establish the same on her own. The findings of bonafide need as recorded by the Courts below and affirmed by this Court and the Apex Court in the matter of Radha Kishan stood concluded. Therefore, the petitioner cannot be allowed to assail the finding on bonafide need set up by the landlady.
The other contention raised by the learned counsel for the petitioner, is that both the courts below have recorded finding on comparative hardship on the basis of the fact that the petitioner did not bring on record any material to show that he made efforts to find alternative accommodation and a period of more than 17 years have elapsed since the tenancy was terminated and the proceedings were initiated and, therefore, the tenant cannot be said to suffer any hardship as against the landlady. This according to Sri Saxena could not be the sole factor to decide the question of hardship. According to him other relevant factors viz: (i) age of the tenant,(ii) his physical hardship, (iii) availability of sufficient accommodation with the landlady,(iv) period of tenancy (v) release of two portions in possession of other two tenants etc and (vi) extent / sufficiency of accommodation should also have been taken into consideration. The Appellate Authority having erred in not considering these aspects, the matter requires reconsideration.
On the other hand, Sri M.M.D. Agarwal, learned counsel for the respondent, has stated that the courts have examined the matter regarding the long period of tenancy and also the handicap of the petitioner and that he is an old and aged person, as also other factors raised. The Prescribed Authority has held after considering all the facts and material and, also taking into consideration the fact that the petitioner did not make any effort recorded a finding that landlady would suffer grater hardship. Each and every factor mentioned by Mr. Saxena has been considered by the Prescribed Authority. The contention of Sri M.M.D. Agarwal is that that no effort made by the petitioner was not the only ground for recording the finding for comparative hardship, but also that all other factors were taken into consideration by the Prescribed Authority as well as the Appellate Authority.
I have examined both the judgments. Even though the appellate authority has not considered the other aspects, except the fact that the petitioner did not make any effort, however, the Prescribed Authority has considered in detail all the other facts regarding age, long period of tenancy, non availability of alternative accommodation and physical handicap of the petitioner. The finding on the question of comparative hardship based upon material on record being finding of fact cannot be interfered by this Court is writ jurisdiction.
The petition, therefore, lacks merits and is, accordingly, dismissed.
Learned counsel for the petitioner has prayed for time to vacate the premises.
The counsel for the petitioner has prayed that some time may be allowed to vacate the premises. The Counsel for the respondent has submitted that time may be granted subject to the condition that the petitioner submits undertaking on the terms and conditions that may be imposed by this Court. Upon consideration of facts and the long occupancy of the petitioner one year time may be allowed to the petitioner to vacate and hand over peaceful possession of the premises in dispute to the landlord (respondent 2) subject to the condition that the undertaking incorporating the conditions as stated below is filed before the Trial Court as directed.
Learned counsel for the petitioner submitted that undertaking shall be filed by the petitioner before the Prescribed Authority on the terms and conditions imposed by this Court:-
1.The tenant-petitioner shall file before the concerned Prescribed Authority, on or before 14.02.2005 application along with his affidavit giving an unconditional undertaking to comply with all the conditions mentioned hereinafter:
2.Petitioner-tenant shall not be evicted from the accommodation in his tenancy up to 31.12.2005. Tenant-petitioner, his representative/assignee, etc. claiming through him or otherwise, if any, shall vacate without objection and peacefully deliver vacant possession of the accommodation in question on or before 31.12.2005 to the landlord or landlord's nominee/representative (if any, appointed and intimated by the landlord) by giving prior advance notice and notifying to the landlord by Registered A.D. post (on his last known address or as may be disclosed in advance by the landlord in writing before the concerned Prescribed Authority) time and date on which Landlord is to take possession from the tenant.
3.Petitioner shall on or before 06.03.2005 deposit entire amount due towards rent etc. up to date i.e. entire arrears of the past, if any, as well as the rent for the period ending on 31.12.2005.
4.Petitioner and everyone claiming under him undertake not to ''change' or ''damage' or transfer/alienate/assign in any manner, the accommodation in question.
5.In case tenant-petitioner fails to comply with any of the conditions/or direction/s contained in this order, landlord shall be entitled to evict the tenant-petitioner forthwith from the accommodation in question by seeking police force through concerned Prescribed Authority.
6.If there is violation of the undertaking of any one or more of the conditions contained in this order, the defaulting party shall pay Rs. 25,000/- (Rupees Twenty five thousand only) as damages to the other party besides rendering himself/herself liable to be prosecuted for committing grossest contempt of the Court.
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