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1977 DIGILAW 563 (ALL)

Israran Begum v. Ist Additional District Judge, Shahjahanpur

1977-10-28

M.P.SAXENA

body1977
JUDGMENT M.P. Saxena, J. - This is tenant's writ petition under Article 226 of the Constitution of India arising out of proceedings under section 21 of the U.P. Urban Buildings (Regulation of Letting Rent and Eviction) Act, 1972 (hereinafter called the Act). 2. Triloki Nath, respondent No. 3 is the owner of the shop in dispute which is situate in the market of Bahadurganj. in the town of Shahjahanpur. It was let out to one Abdul Hadi Khan who died in 1968 leaving behind Smt. Israrn Begum, the petitioner as his widow. She started paying rent to the landlord. The latter filed an application under section 21 of the Act for release of the shop on the ground that his son has come of age and he wants to settle him in Sarafa business in this shop. Therefore, it is bona fide required by him. It was also alleged that Smt. Israran Begum it not using the shop herself but has sub-let it to one Azhar Ali who is carrying on stationery business on it. 3. Smt. Israran Begum did not appear before the Prescribed Authority. Azhar Ali alone filed a written statement saying that Smt. Israran Begum has executed a Mukhtarnama in his favour. He denied that the landlord has any bona fide need for that shop, that several efforts were made to evict Abdul Nadi Khan but in vain. He also gave out that greater hardship will be caused to him if the application for release is allowed than will be caused to the landlord by rejection of the application. 4. After going through the evidence on the record the Prescribed Authority held that the landlord has bona fide need for that shop and that greater hardship will be caused to him than to the tenant if his application is rejected. He also held that the landlord is willing to offer alternative accommodation to the tenant in which she can run her business without loss. Accordingly the shop was released on the condition that the landlord will place the tenant in possession of the shop which he has offered to her. 5. He also held that the landlord is willing to offer alternative accommodation to the tenant in which she can run her business without loss. Accordingly the shop was released on the condition that the landlord will place the tenant in possession of the shop which he has offered to her. 5. Smt. Israran Begum and Azhar Ali both filed an appeal under section 22 of the Act and the learned 1st Additional District Judge, Shahjahanpur agreeing with the findings of the Prescribed Authority rejected the appeal, but granted one month's time to the tenant to vacate that shop. 6. So far as the question of bona fide need is concerned, there can be no manner of doubt that the family of respondent No. 3 consists of himself, his wife and five sons. One of them has separated and is carrying on business elsewhere. Therefore, there are six members in the family of the respondent. One of his sons is grown up and the respondent No. 3 wants to settle him in Sarafa business. There is nothing on the record to doubt this version of the landlord. It has been believed both by the Prescribed Authority as well as by the Additional District Judge. As held in the case of Smt. Ram Devi v. Vishny Deo Sharma, 1976 (U.P.) R.C.C. 185, finding regarding bona fide need cannot be interfered with in writ jurisdiction unless vitiated by manifest error of law. In the instant case no such error has been pointed out and this finding cannot be disturbed. 7. Then arises the question of comparative hardship to the landlord and the tenant. The learned Prescribed Authority has dilated on this point at length and the learned Additional District Judge has expressed full agreement with him on the appraisement of evidence. There is no force in the contention of the learned counsel for the petitioner that question of comparative hardship has not been gone into. He has, however, referred to three points in this connection. In the first place it is urged that the landlord has other shops Which he can utilise for running Sarafa business and no hardship will be caused to him if his application is rejected. It is not tenable because the landlord had stated that the shop which is lying vacant is in Khalil Sharqi where Sarafa business cannot be carried on. It is not tenable because the landlord had stated that the shop which is lying vacant is in Khalil Sharqi where Sarafa business cannot be carried on. The same shop is offered to the petitioner for running a stationery business and if he is hesitant to do so it makes it clear that the contention of the landlord that Sarafa business cannot be carried on there carries force. 8. In the second place it is urged that the alternative accommodation offered to the petitioner is not suitable for her purpose. It is important to state that the landlord is entitled to use his shop when he has bond fide need for the same. The petitioner is not carrying on the stationery business herself. Lesser hardship will be caused to her if she carries on this business in the shop which the landlord is prepared to place at her disposal. Absolutely no material has been furnished as to why that shop cannot serve the purpose of the petitioner. 9. Lastly, it is urged that the goodwill earned by the petitioner was not taken into consideration nor any compensation awarded to her as contemplated by law. There is nothing on the record to warrant that the stationery business 'carried on by her is on such a scale that she has earned any goodwill in respect of it. So far as the question of compensation is concerned, this plea was not taken before the Prescribed Authority or the Additional District Judge. As held in the case of Khusdil Prasad v. Sewa Ram Jain and others, 1976 (U.P) R.C.C. 346, if plea regarding two years' rent as compensation is not raised before the Prescribed Authority it cannot be raised in writ petition. I am, therefore, in judgment that even on comparative hardship the reasons given by the Prescribed Authority and concurred by the learned Additional District Judge are quite weighty and cannot be disturbed. 10. In the result the writ petition is dismissed with costs on parties. The release application will, however, stand allowed on the same condition as imposed by the Prescribed Authority i.e. the landlord shall place the petitioner in possession of the alternative accommodation offered by him within two month's hereof and the petitioner will vacate the disputed shop and place it in possession of the landlord within the same period.