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Allahabad High Court · body

2005 DIGILAW 1060 (ALL)

Rajendra Kumar Agarwal v. IIIrd A. D. J.

2005-05-26

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VIKRAM NATH, J. ( 1 ) WRIT Petition No. 41143 of 1998 and Writ Petition No. 42141 of 1998 have been filed by the tenants for quashing of the judgment and order dated 15. 5. 1996 passed by the prescribed authority/civil Judge (Junior Division) Etah and the judgment and order dated 6. 11. 1998 passed by the IIIrd Additional District Judge, Etah, whereby the application for release of the premises in dispute under Section 21 (1) (a) of the U. P. Urban Buildings (Regulation of Letting Rent and eviction) Act, 1972 (hereinafter referred as the Act) filed by respondent No. 3 Someshwar prasad Goswami was allowed and the appeal against the same under Section 22 of the Act was dismissed. ( 2 ) WRIT Petition No. 38949 of 1997 has been filed by unauthorised occupant against the order of the Rent Control and Eviction Officer, Etah, dated 24. 10. 1997, whereby vacancy was declared in the premises in dispute under Section 12 of the Act. ( 3 ) SINCE in all three cases the initial proceedings were taken under Section 21 (1) (a) of the Act by the landlord Someswar Prasad Goswami and while deciding all the three applications the prescribed authority vide common judgment dated 14. 5. 1996 had held that Ravindra Singh yadav (petitioner in Writ Petition No. 38949 of 1997) was an unauthorized occupant and, therefore, decree of eviction could not have been passed against him and as such dismissed the release application against him. Consequent thereof proceeding under Section 12/16 of the Act were initiated and vacancy was declared on 24. 10. 1997 against which the third petition was filed. The facts being similar and the landlords need being common all the three petitions are being heard and decided together with the consent of the learned Counsel for the parties. ( 4 ) THE landlord Someswar Prasad Goswami had filed three separate applications for releasing of shops No. 284, 285 and 286 situated at G. T. Road, Etah, setting up the need for his judicially separated daughter Smt. Sunita Giri for setting up coaching school for primary classes in order to provide her occupation and financial support. ( 4 ) THE landlord Someswar Prasad Goswami had filed three separate applications for releasing of shops No. 284, 285 and 286 situated at G. T. Road, Etah, setting up the need for his judicially separated daughter Smt. Sunita Giri for setting up coaching school for primary classes in order to provide her occupation and financial support. In shop No. 284 Rajendra Kumar Agarwal (petitioner in Writ Petition No. 41143 of 1998) was a tenant, Kaloo Khan (petitioner in Writ petition No. 42141 of 1998) was the tenant in shop No. 285 and Ravindra Singh Yadav (petitioner in Writ Petition No. 38949 of 1997) was the tenant of shop No. 286. The need set up for release of all the shops was the same. It was alleged in the release application that only son of landlord Rajiv Goswami had died at an early age of 32 years leaving behind his widow and two minor children. Further the landlord had 4 daughters and all were married, however the marriage of one daughter Smt. Sunita Giri was not successful and she had been judicially separated from her husband through Court and was living with him. She needed to support herself as the landlord was a retired teacher and was getting nominal pension of about Rs. 382 per month. The income received by the landlord was not sufficient to support himself and his family members which included liability of his sons family, the judicially separated daughter and also occasional help to three other married daughters to use to visit him from time to time. It was further alleged in the release application that both Rajendra Kumar Agarwal as well as Kaloo Khan had shops in their ownership where they could shift their business and would not suffer any hardship in the event the shop was released whereas the landlord had no place to provide to her daughter for running the coaching school. ( 5 ) REPLY was filed by the tenants separately. Possession of vacant shops in their ownership was not denied rather it was said that the shops in their occupation were not suitable for the business and that they being tenants from a long period had built up goodwill and in the event of eviction would suffer greater hardship. ( 5 ) REPLY was filed by the tenants separately. Possession of vacant shops in their ownership was not denied rather it was said that the shops in their occupation were not suitable for the business and that they being tenants from a long period had built up goodwill and in the event of eviction would suffer greater hardship. It was also pleaded in the written statement that the landlord actually did not require the shops and there was no bona fide need and he had only filed the release application to harass the tenant and to seek enhancement of the rent. Certain other technical pleas like non-joinder of landlords other co-owners and some defect in the notice and that Smt. Sunita Giri was not judicially separated nor was educated and as such no need could be set up for her were also taken in the written statement. ( 6 ) BOTH the parties led evidence in support of their cases. The prescribed authority vide judgment and order dated 14. 5. 1996 came to the conclusion firstly that in respect of shop No. 286 rajendra Singh Yadav was an unauthorized occupant having occupied the premises after the coming of the Act and without an allotment order and, therefore, could not be evicted under section 21 (1) (a) of the Act. Secondly it was found after consideration of evidence that the need set up by the landlord was bona fide and genuine in respect of shop Nos. 284 and 285 and further that on comparison of hardship to be faced upon eviction the tenant would be lesser as they had alternative accommodation available with them. On these findings the prescribed authority had allowed the release application in respect of shop Nos. 284 and 285. ( 7 ) RAJENDRA Kumar Agarwal and Kaloo fifed appeals before the District Judge under Section 22 of the Act, which were registered as Misc. Appeal No. 70 of 1996 and 69 of 1996 respectively. Both these appeals were dismissed by the IIIrd Additional District Judge, Etah, vide judgment dated 6. 11. 1998. In so far as proceedings against Rajendra Kumar Agarwal were concerned the landlord filed an application under Section 12/16 of the Act for declaration of vacancy and release of shop No. 286. The Rent Control and Eviction Officer vide order dated 24. 10. 11. 1998. In so far as proceedings against Rajendra Kumar Agarwal were concerned the landlord filed an application under Section 12/16 of the Act for declaration of vacancy and release of shop No. 286. The Rent Control and Eviction Officer vide order dated 24. 10. 1997 held that Rajendra Kumar Agarwal was an unauthorized occupant and as such there was deemed vacancy under Section 12 of the Act. It is against these orders that all the tenant-petitioners had filed separate writ petition. ( 8 ) I have heard Sri Swapnil Kumar, learned Counsel appearing for the petitioners and Sri P. K. Jain, learned Counsel appearing for landlord/respondent Sri Someswar Prasad Goswami in all the three petitions. ( 9 ) LEARNED Counsel for the petitioners has tried to assail the findings on bona fide need on the ground that the landlord was already in possession of shop No. 284 which had been released in his favour and in case he wanted his daughter to start coaching classes, the said accommodation would have been utilized. This contention of the tenants has been considered by both the courts below and it has been held that the said shop was in the use and occupation of the landlord someswar Prasad Goswami who was himself carrying on business of stationery point and it was not vacant. ( 10 ) OTHER contention of the learned Counsel for the petitioner/tenants is that Smt. Sunita Girl was uneducated and could not start coaching classes on the ground that she had given an affidavit in the matrimonial proceedings against her husband alleging that she was uneducated. This plea has also been rejected by the courts below based upon evidence that she was class X pass and was sufficiently educated to teach students of primary classes, in order to earn her livelihood. ( 11 ) THE other point taken with regard to sending a commission by the appellate authority, also does not find favour with the appellate court inasmuch as the appellate authority recorded finding that the application for commission has been filed at a delayed stage with the motive to delay the proceedings. ( 12 ) IN the circumstances I find that all the grounds taken and the points raised by the petitioner have been considered by both the courts below and these findings are based upon consideration of evidence on record. ( 12 ) IN the circumstances I find that all the grounds taken and the points raised by the petitioner have been considered by both the courts below and these findings are based upon consideration of evidence on record. All these findings being findings of fact cannot be interfered with in writ jurisdiction under Article 226 of the Constitution. There does not appear any infirmity in the judgment of the prescribed authority as well as the appellate authority and the same are concluded by findings of fact. It is otherwise also well-settled that findings on the question of bona fide need and comparative hardship based upon evidence on record are findings of fact and cannot be interfered with in writ jurisdiction. Learned Counsel for the petitioner has not been able to point out any relevant material, which have been ignored by the courts below and if taken into consideration would have altered the finding recorded. In the circumstances the Writ petition Nos. 41143 of 1998 and 42141 of 1998 being devoid of merits are liable to be dismissed. ( 13 ) WITH regard to the Writ Petition No. 38949 of 1997 a perusal of the order dated 24. 4. 1997 declaring vacancy clearly indicates that the tenant Ravindra Singh Yadav had been repeatedly getting the proceedings adjourned only in order to delay. It is further mentioned that Ravindra singh Yadav had admitted in the said proceedings on affidavit that he did not have any allotment order in his favour. That being the position he was admittedly an unauthorized occupant. Ravindra Singh Yadav had also not challenged the finding recorded by the prescribed authority that he was unauthorized occupant. Even before this Court no material has been placed to show that Ravindra Singh Yadav was not an unauthorized occupant. In view of the admitted, position there cannot be any other conclusion but to hold that Rent Control and Eviction Officer has rightly declared shop No. 286 as deemed vacant under Section 12 of the Act. In these circumstances the writ Petition No. 38949 of 1997 also deserves dismissal. ( 14 ) IN view of the above discussion all the three writ petitions fail and are, accordingly dismissed but without any order as to costs. . .