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2003 DIGILAW 2410 (ALL)

KISHUN KHETAN v. VTH ADDITIONAL DISTRICT JUDGE

2003-10-13

S.U.KHAN

body2003
S. U. KHAN, J. ( 1 ) THIS is tenants writ petition arising out of eviction/ release proceedings on the ground of bonafide need under Section 21 of U. P. Act No. 13 of 1972. Chatur Bhuj Agarwal (C. B. Agarwal in short) filed a release application giving rise to the instant writ petition being P. A. Case No. 19 of 1990 on the file of Prescribed Authority/civil Judge, Azamgarh, Sri Kishun Khetan petitioner (since deceased and survived by L. Rs.) who was the tenant was impleaded as opposite party No. 1 in the release application. Vijai Krishan Agarwal (V. K. Agarwal in short) and Gopal Krishan agarwal (G. K. Agarwal in short) nephews of C. B. Agarwal and co-landlords were impleaded as proforma opposite party Nos. 2 and 3. V. K. Agarwal and G. K. Agarwal are sons of late ghanshyam Agarwal (G. S. Agarwal in short) real brother of Sri C. B. Agarwal. Release application was allowed on 24. 7. 1991 and appeal against the same filed by the tenant being P. A. Appeal No. 141 of 1991 was also dismissed by Vth Additional District Judge, Azamgarh, on 4. 4. 1997, hence, this writ petition. ( 2 ) THE tenant pleaded and tried to prove that it was only G. S. Agarwal who was the landlord and not C. B. Agarwal however, both the courts below have rightly held that both C. B. Agarwal and g. S. Agarwal were joint owners/landlords. For arriving at the said findings, reliance has been placed upon the case filed by tenant himself under Section 30 in which he showed all the three persons, i. e. , C. B. Agarwal, V. K. Agarwal and G. K. Agarwal as landlord respondents and rent receipt in which the names of all the three persons were mentioned as landlord. In one of the supplementary-affidavits filed in this writ petition tenant has himself described V. K. Agarwal as one of the co-owners (supplementary-affidavit sworn in November, 1997 ). Learned counsel for the petitioner has also not seriously challenged the said findings. ( 3 ) THE main argument of learned counsel for the tenant petitioner is with regard to availability of other shops to the landlord. Learned counsel for the petitioner has also not seriously challenged the said findings. ( 3 ) THE main argument of learned counsel for the tenant petitioner is with regard to availability of other shops to the landlord. In the release application it was stated by C. B. Agarwal that he had four sons and the shop in dispute was required for Vinay Kumar Agarwal one of his sons to start business. Both the courts below particularly the Prescribed Authority has held after taking into consideration the material on record that the shops vacated by Girdhar Das and Annapurna Devi were being used by V. K. Agarwal and G. K. Agarwal the other co-landlords. The said shops, therefore, cannot be said to be available to C. B. Agarwal. ( 4 ) ALONG with one of the supplementary-affidavits it has been stated that the building in tenancy occupation of U. B. I. was got vacated in proceedings under Section 16 of the Act. Copy of the judgment by revisional court directed against the order of R. C. and E. O. in Civil Revision No. 227 of 1999, decided by Additional District Judge Court No. 8 Azamgarh, dated 5. 1. 2002, has been annexed along with one of the supplementary-affidavits. With regard to the said accommodation, it has been stated by the landlord that the same was got vacated by C. B. Agarwal for himself and application for the same was filed in the year 1991 being Case No. 29 of 1991 on the file of R. C. and E. O. The same, therefore, cannot be held to be available to Vinay Kumar Agarwal son of C. B. Agarwal. The Supreme Court in AIR 1998 SC 2696 has held that accommodation in use of landlord cannot be taken into consideration while considering the need for his son. ( 5 ) THERE is one more shop situate near marwari dharamshala which was stated by the tenant to be available to the landlords. With regard to the said shop a lot of litigation has taken place. The judgment in one of such litigations, i. e. , O. S. No. 921 of 1989, decided by XIth Additional munsif, Azamgarh in between Ram Vilas Pathak, C. B. Agarwal and his two nephews dated 22. 4. 1993 has been annexed along with supplementary-affidavit by tenant himself. In the fifth supplementary affidavit sworn on 25. 8. The judgment in one of such litigations, i. e. , O. S. No. 921 of 1989, decided by XIth Additional munsif, Azamgarh in between Ram Vilas Pathak, C. B. Agarwal and his two nephews dated 22. 4. 1993 has been annexed along with supplementary-affidavit by tenant himself. In the fifth supplementary affidavit sworn on 25. 8. 2002 by the tenant petitioner, it has been stated that the said shop has been let out to one Sri Vinod Kumar Rai. ( 6 ) ALONG with third supplementary-affidavit, documents pertaining to a release application numbered as P. A. Case No. 8 of 1991 filed by V. K. Agarwal against some tenants including one mumtaz Ahmad has been brought on record. This supplementary-affidavit was sworn in november 1997. Annexure-S. A.- 1 to the said supplementary-affidavits is copy of objection filed in the said release application by Mumtaz Ahmad opposite party No. 16. In para 2 of the said objection. It was mentioned that he had two shops in his tenancy occupation out of which he was ready to vacate one shop, which could be taken by the landlord for his own use or for adjusting any other tenant. This reply of tenant was filed in March 1992. The appeal giving rise to the instant writ petition was decided in the year 1997, The aforesaid documents annexed along with third supplementary-affidavit in November 1997, could very well be brought on record before the lower appellate court which was not done. Supreme Court in the recent authority in AIR 2003 SC 632 , has held that in release matters subsequent events should be brought on record promptly otherwise they would not be considered. In the aforesaid supplementary-affidavit it has not been stated as to what happened to the release application mentioned therein and whether applicant of the said release application, i. e. , V. K. Agarwal (respondent No. 4 in the instant writ petition) got possession of one of the shops by the tenant Mumtaz Ahmad or not. Reply to the said supplementary-affidavit by the landlord is also evasive. The only thing which has been stated in supplementary counter-affidavit sworn on 29. 8. Reply to the said supplementary-affidavit by the landlord is also evasive. The only thing which has been stated in supplementary counter-affidavit sworn on 29. 8. 2000 is that the shop mentioned in the supplementary-affidavit is neither vacant nor suitable for the business proposed to be set up by the son of the answering respondent (para 4) and if the assertion made regarding the said shop being vacant is found and taken to be correct then answering respondent shall have no objection in offering the same to the petitioner in lieu of the shop in dispute. The effort of the tenant petitioner in bringing on record the fact regarding the availability of the shop which was in tenancy of Mumtaz Ahmad to the landlord can be described to be belated and half baked. No final order can be passed on such allegations. ( 7 ) THE concurrent findings of bona fide need and comparative hardship recorded in favour of landlord do not suffer from any such error, which may require interference in exercise of writ jurisdiction. The tenant did not bring on record any effort, which he might have made by him to search alternative accommodation after filing of the release application. This omission clearly tilts the balance in favour of the landlord regarding comparative hardship. ( 8 ) THERE is therefore, no merit in the writ petition and it is accordingly dismissed. ( 9 ) HOWEVER, in view of the allegations made by the tenant that one shop near marwari dharamshala was let out by the landlord to Vinod Kumar in 2002 and in Release Application No. 8 of 1991. Vijai Krishan v. Anand Prakash and Ors. , one of the tenant respondents Mumtaz ahmad offered to vacate one of the shops, it is directed that petitioner is at liberty to apply for allotment of any of the two aforesaid shops before R. C. and E. O. under Section 16 of U. P. Act No. 13 of 1972. Vijai Krishan v. Anand Prakash and Ors. , one of the tenant respondents Mumtaz ahmad offered to vacate one of the shops, it is directed that petitioner is at liberty to apply for allotment of any of the two aforesaid shops before R. C. and E. O. under Section 16 of U. P. Act No. 13 of 1972. In case such an application is filed with regard to the shop situate near marwari dharamshala alleged to have been let out in 2002 to Vinod Kumar, and R. C. and E. O. after hearing tenant petitioner, landlord and the aforesaid Vinod Kumar comes to the conclusion that the shop was given on rent to Vinod Kumar without allotment order then the said shop must be allotted by r. C. and E. O. to the tenant petitioner. With regard to the said shop R. C. and E. O. must neither entertain release application of the landlord nor allotment application of any one else including vinod Kumar. In case release application is filed by the tenant petitioner before R. C. and E. O. regarding the shop alleged to have been offered to be vacated by Mumtaz Ahmad aforesaid R. C. and E. O. must decide after hearing tenant petitioner, landlord respondent and the aforesaid mumtaz Ahmad as to whether the said shop has been vacated and handed over to the landlord or not. If it is found that the said shop is in possession of the landlord then the same must be allotted to the petitioner even if landlord is carrying on any business therein or has let that out to any one else without allotment order. With regard to the said shop also R. C. and E. O. must not entertain any release application by the landlord or allotment application by any one else including aforesaid Mumtaz Ahmad. If allotment application is filed by tenant petitioner before r. C. and E. O. within a month from today, the same shall positively be disposed of within four months from the date of filing. ( 10 ) TENANT petitioner shall not be evicted from the shop in dispute for a period of six months from today. .