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1981 DIGILAW 5 (ALL)

Banerji Das v. State of U. P

1981-01-01

S.D.AGARWAL

body1981
ORDER S.D. Agarwal, J. - This is a petition under Article 226 of the Constitution arising out of proceedings for release under Section 21 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, U.P. Act No. XIII of 1972, hereinafter referred to as the Act. 2. The property in dispute is a shop. The petitioner is the landlord. Opposite party No. 4 Jamal Uddin is the tenant. The application for release was filed on the ground that the petitioner needed the shop to enable his son Pradeep, who has just finished his education, to start a cloth business and, therefore, it was contended that his need was genuine and bona fide. Opposite party No. 4 contested the petition on the ground that the need of the petitioner was not genuine and bona fide. The petitioner was already carrying on a Saraffa business and was aged 65 years and therefore he did not require the shop in dispute at all. It was further urged that greater hardship would be caused to opposite party No. 4 in case the release application was allowed as opposite party No. 4 has been in occupation of the shop for the last 45 years. 3. The Prescribed Authority by judgment dated 4th December 1978 dismissed the application for release holding that the need of the petitioner was not bona fide and genuine and also on the ground that greater hardship would be caused to opposite party No. 4 in case the release application was allowed. Against the decision dated 4th December 1978 the petitioner filed an appeal before the District Judge, Banda. The appeal was also dismissed by the IIIrd Additional District Judge, Banda, on 1st August, 1979. Against the judgment dated 1st August, 1979 the present petition has been filed in this Court. 4. Learned counsel for the petitioner has urged that the finding in regard to hardship recorded by the appellate authority is vitiated in law as the appellate authority has not considered the effect of Rule 16 (2), sub-clause (d) of the Rules framed under the Act. 5. 4. Learned counsel for the petitioner has urged that the finding in regard to hardship recorded by the appellate authority is vitiated in law as the appellate authority has not considered the effect of Rule 16 (2), sub-clause (d) of the Rules framed under the Act. 5. Rule 16 (2), sub-clause (d) of the Rules provides that the Prescribed Authority shall also have regard while considering the application for release in respect of a building let out for the purposes of any business where a son has after the building was originally let out completed his technical education and is not employed in Government service and wants to engage in self-employment. This clause (d) would only apply to a case where the son has completed his technical education and is not employed in Government service. Both these clauses have to be read together. The son should have completed his technical education and also should not have been employed in Government service. These two clauses cannot be read disjunctively. In the instant case the son of the petitioner has passed only High School. He has not completed any technical education. In the circumstances the question of applicability of clause (d) of Rule 16 (2) of the Rules does not arise in the present case at all. The submission, therefore, made by the learned counsel for the petitioner is, therefore, not well founded. 6. Learned counsel for the petitioner has further urged that the petitioner has offered alternative accommodation to opposite party No. 4 and the authorities acted illegally and with material irregularity in not considering the said alternative accommodation. The appellate authority has in the instant case considered this question and has found that the offer of alternative accommodation is not genuine nor bona fide as no specific offer has been made in respect of any particular portion of the property. In my opinion the appellate authority was justified in recording this finding. I do not find any error of law in the said finding. 7. In the result there is no force in this petition. It is accordingly dismissed but in the circumstances of the case parties are directed to bear their own costs.