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1999 DIGILAW 1913 (ALL)

Rustam Ali v. District Judge Kanpur

1999-12-07

S.N.AGGARWAL

body1999
JUDGMENT : - Sudhir Narain, J. This writ petition is directed against the order dated 27-5-1982 passed by Appellate Authority allowing the appeal and releasing the disputed shop in favour of the landlady-respondent No. 3. 2. THE facts, in brief, are that the petitioner is a tenant of one shop situate on ground floor of Premises No. 59/1 Mirpur Cantt. Kanpur. It was owned by Munna Lai. He died leaving behind him his widow Ram Nandani-respondent No. 3, his son Om Prakash- respondent No. 4 and two daughters Smt. Usha and Km. Asha. His widow was working as Aya in a local school. She filed an application under Section 21 of U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (in short the Act) for release of the disputed shop against the petitioner on the ground that she requires the disputed shop for carrying on business of general merchandise. Her daughter Smt. Usha is widow and living with her and she will also join her. Her daughter Km. Asha is unmarried. Her son Om Prakash does not want to join the petition as such he has been impleaded as opposite party. This application was contested by the petitioner. It was denied that she re quires the disputed shop for carrying on any general merchandise business. Il was further stated that the application was not maintainable, as other co-landlords had not joined in the application. The Prescribed Authority rejected the application on 26-3-1981 on the finding that respondent No. 3 was already employed and does not require the shop in question to carry on any business. Respondent No. 3 filed appeal against the said judgment. The Appellate Authority has allowed the appeal on 27-5-1982. This order has been challenged by the petitioner. 3. I have heard Sri S. M. A. Kazmi, learned counsel for the petitioner and Sri S. N. Gupta learned counsel for the respondent. 4. LEARNED counsel for the petitioner submitted that the application filed by respondent No. 3 was not maintainable, as there were co-landlords. It has been found that the petitioner was paying rent to Smt. Ram Nandani, therefore, she was entitled to file the application. She had joined her son as proforma party as he did not want to join her. In the facts and circumstances the application filed by respondent No. 3 was maintainable. It has been found that the petitioner was paying rent to Smt. Ram Nandani, therefore, she was entitled to file the application. She had joined her son as proforma party as he did not want to join her. In the facts and circumstances the application filed by respondent No. 3 was maintainable. The next contention of the learned counsel for the petitioner is that the need of respondent No. 3 is not bona fide. She was employed as an Aya in a local school. This establishes that she is a working lady and after the death of her husband she stated that she requires the accommodation for carrying on business. The Appellate Authority examining the matter found that the version was correct. The finding that she requires the disputed shop for carrying on business does not suffer from any legal infirmiiy. 5. THE last submission of the learned counsel for the petitioner is that there is an alternative shop available lo respondent No. 3. He has referred to a report of the Commissioner which was appointed by the Prescribed Authority wherein he has slated that there is some covered Chabutra. THE Prescribed Authority took the view that this can be utilised by the landlady for running the business. It is not clear from the report that it is roofed structure. 6. THE contention of the respondent No. 3 was that the petitioner has some other alternative accommodation. THE Appellate Authority has made certain observation but has not pointed out the exact nature of the said alternative accommodation available to the tenant. Sri Ka/. mi, learned counsel for the petitioner, made statement that the petitioner is prepared to shift 10 the covered Chabutra. Considering the facts and circumstances of the ease the matter is remanded to the Appellate Authority to find out as lo whether the petitioner has an alternative accommodation to shift his business and if he has no other accommodation he will provide the covered Chabutra which has been mentioned in the report of the Commissioner unless it is a residential portion of the building of respondent No. 3. In this respect the Appellate Authority can again issue a com mission to find out the nature of the said Chabutra and also any other accommodation alleged to be available lo the tenant. In this respect the Appellate Authority can again issue a com mission to find out the nature of the said Chabutra and also any other accommodation alleged to be available lo the tenant. If he finds that there is no alternative accommodation with the petitioner, he will pro vide the Chabutra to the petitioner on which if there is no roof it will be open to the petitioner to put a roof on it without demanding any cost for construction. 7. IN view of the above the writ petition is partly allowed and the Appellate Authority is directed to decide the mailer afresh keeping in view the aforesaid observation. The appeal shall be decided within a period of three months from the date of production of a certified copy of this order. Petition partly allowed.