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1996 DIGILAW 101 (ALL)

RAJENDRA KUMAR TRASHIT v. VITH ADDITIONAL SESSION JUDGE KANPUR

1996-01-23

A.B.SRIVASTAVA

body1996
A. B. SRIVASTAVA, J. This is tenants writ petition against an order dated 23-1-1990 of the Prescribed Authority under Act 13 of 1972 releasing a portion of House No. 104/406, Sisamau, Kanpur under Section 21 (1) (a) of the said Act in favour of respondent No. 3, the landlord and the order dated 24-4-1991 of the Additional District Judge, Kanpur, confirming the same in appeal. 2. The landlord-respondent moved an application for release of ground floor portion of the house in question consisting of one room, a Bhandariya and a Chatubara, on the ground floor of the house in question, in the tenancy of the petitioner on the ground of bona fide requirement to occupy the same for setting up the business of his elder son who, though trained, is unemployed and also for the residence of the family consisting of nine members who were to shift to their ancestral place at Kanpur in view of impending retirement of the landlord who was a primary teacher in Rewan (M. P. ). The petitioner it was alleged is keeping the accommodation in question locked as he is in possession of Hosue No. 104-A/165, Ram Bagh, Kanpur which is used both for residential and business purposes by him. The family of the tenant consist only of him and his wife. 3. The petitioner opposed the application denying the plea of bona fide re quirement or the landlord and stating that he has settled at Rewan since past 20 years and has a good income, his son being technical hand could easily get job in M. P. or even in Kanpur. The petitioner has his printing press in the house in ques tion from where he publishes a newspaper and magazine. He cannot shift his press to the residential accommodation for health reasons as the same will be hazardous to his health being a T. B. patient and it will also be detrimental to his business. The landlord has also filed release application against three other tenants with obvious intention to sell the house. 4. He cannot shift his press to the residential accommodation for health reasons as the same will be hazardous to his health being a T. B. patient and it will also be detrimental to his business. The landlord has also filed release application against three other tenants with obvious intention to sell the house. 4. The prescribed authority on a consideration of the evidence led before him came to the conclusion that the respondent-landlord has bona fide requirement to occupy the premises in question, that greater hardship will be caused to him if the release is refused than to the petitioner if the same is allowed in view of the fact that the petitioner has been reqularly running his printing business from House No. 104-A/165, Ram Bagh, Kanpur, and that he also did not make any attempt to get an alternative accommodation, in case he requires same house for his business. He accordingly allowed the release application. Confirming the said finding the District Judge dismissed the appeal. 5. Learned Counsel for both parites have been heard and record has been perused. 6. It would be found from that has been narrated above that in this case both the prescribed authority as well as appellate authority, have come to a factual conclusion that the need set up by the landlord for occupation of the premises in question is bona fide genuine and pressing. It being a finding of fact, ordinarily it cannot be interferred in writ jurisdiction, unless it suffers from manifest error of law, or some legally admissible and reliable evidence having altogether been over looked. In the instant case on the facts brought on record, however, no such infir mity is found in the approach of, or the conclusions arrived at by, the authorities below. There is no denial of the fact that the landlord is original residence of Kanpur and be along with his family was residing at Rewan in connection with his employment as primary school teacher. It is also not disputed that the landlord has since retired. It is also not disputed that the landlord has since retired. It is also undisputed that he has three sons and four daughters besides himself and his wife. It has been stated now that two of the daughters have since been married. Strength of the family as at present thus is seven. It is also not disputed that the landlord has since retired. It is also undisputed that he has three sons and four daughters besides himself and his wife. It has been stated now that two of the daughters have since been married. Strength of the family as at present thus is seven. All the children during about ten years pendency of the release proceedings must have now come of age and for their residential need itself substantially big accommodation is necessary. 7. The plea of the landlord that he is required to shift to his ancestral place at Kanpur and had already shifted part of his family prior to the filing of the release application, is also not open to doubt. To say that he and his family can continue to live at Rewan and should not shift to Kanpur is not a plea open to the tenant. Every person has a right to choose his residence as per his circumstances, and to shift on retirement to his native place. 8. As regards the fact of the elder son of the respondent, named Manoj Kumar, being unemployed, his version and evidence is unrebutted. Merely because he was a trained hand in this age of unemployment, it could not be presumed as suggested by the petitioner, that he could get private or Government employment at Kanpur or at any place at M. P. 9. Although no such plea was taken before the prescribed or appellate authority, before this Court it has been contended that the claim of Manoj Kumar being a technically qualified and trained hand is not correct. In this regard a sup plementary affidavit dated 11-1-1996 along with few annexures have been filed to show that the certificate of having obtained diploma and practical experience, as relied on behalf of the respondent-landlord is fabricated. Perusal of the affidavit and the annexures, however, goes to show that what has been filed as Annexures-1 and 2 is itself inadmissible. A letter alleged to be addressed to the petitioners ad vocate at Kanpur and the copy of the alleged affidavit of one Laxman Prasad which has been filed with supplementary affidavit are not admissible in evidence. The letter of the Principal itself does not show that Manoj Kumar has not passed the diploma examination. A letter alleged to be addressed to the petitioners ad vocate at Kanpur and the copy of the alleged affidavit of one Laxman Prasad which has been filed with supplementary affidavit are not admissible in evidence. The letter of the Principal itself does not show that Manoj Kumar has not passed the diploma examination. As far as copy of affidavit is concerned, it does not even annex the document which is stated to be fabricated. It obviously goes to show a last ditch and desperate attempt by the petitioner to disprove the respondent claim, and the same has to be rejected. 10. The plea that the respondent having got released a portion of house in question from the possession of another tenant Ashok Kumar, his need has been met, is also not tenable because the said portion consisted only of one room, Verandah and a Store. 11. For all these reasons therefore, the authorities below rightly held the need of the respondents to be bona fide and pressing. 12. On the question of comparative hardship also it would be found that two courts below have vividly and carefully considered the evidence led by the parties, including the documents and the circumstances, and have come to the conclusion that the tenant besides his residence, also uses House No. 1-4a/165 for his business purposes. It being a finding of fact is not liable to be disturbed in writ proceedings, as laid down in Munni Lal v. Prescribed Authority, AIR 1978 S. C. 29. 13. It is also worth mention in this regard that the petitioner at no stage ap pears to have made any attempt to seek alternative accommodation, in case as stated by him he still needs a separate portion for his printing press. In all these circumstances, the order of release passed by the authorities below does not suffer from any error of law or error of jurisdiction requiring interference by this Court. 14. The writ petition is accordingly dismissed. There shall however, be no order on costs. The petitioner is, however, allowed two months time to deliver vacant possession to the respondent No. 3, provided the furnishes an undertaking to this effect before the prescribed authority within a week. Petition dismissed. .