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2007 DIGILAW 1920 (ALL)

Umesh Chandra Shukla v. Additional District Judge

2007-07-18

RAKESH TIWARI

body2007
JUDGMENT : RAKESH TIWARI, J. 1. Heard learned Counsel for the parties and perused the record. 2. The petitioner is the owner and landlord of the southern portion of the premises No. 504, Mumfordganj, Allahabad which he got in family settlement. On the basis of the family settlement the petitioner got his name mutated in the records of the Nagar Mahapalika and a new No. 504A/1 was allotted to the portion allotted to him. The shop in dispute is situated in the said premises No. 504A/1, Mumfordganj, Allahabad. The petitioner states that though he is a post-graduate from Allahabad University he could not get any job despite his best efforts. In the meantime he was married. To earn his livelihood he decided to ply a trecker and purchased the same in the year 1981. However, to his bad luck he fell seriously ill in the year 1987 and suffered heavy loss in that business compelling him to sell his trecker to pay the instalments of the loan. It is further stated by the petitioner that he remained ill for about 3 years which badly affected his financial condition forcing him to partition the hall of his drawing room by erecting a wall facing the road and opened a small shop in the year 1990 under the name and style of "Manisha General Store." To his another misfortune he sustained injuries and fracture due to fall from the roof of his house and became unable to run the shop. The injuries were so grievous in nature that they continued for three years with the result he became financially indebted and physically incapacitated, hence he let out the shop to one Sri Nileshwar Das Gupta who subsequently shifted to Calcutta after handing over the vacant possession of the shop in dispute to the petitioner on 15.4.1997. 3. The intimation about vacancy of the shop in dispute was given to the Rent Control and Eviction Officer 1st, Allahabad who directed the Rent Control Inspector to inspect the shop in dispute and submit a report. In the meantime applications for allotment of the shop in dispute were moved by some prospective allottees. The Rent Control Inspector accordingly submitted his report dated 5.5.1997 and the Rent Control and Eviction Officer declared vacancy on 25.5.1998. 4. In the meantime applications for allotment of the shop in dispute were moved by some prospective allottees. The Rent Control Inspector accordingly submitted his report dated 5.5.1997 and the Rent Control and Eviction Officer declared vacancy on 25.5.1998. 4. Since the petitioner had no other source of livelihood, as such in the compelling circumstances he decided to enter into business again in his own shop. He therefore filed release application for his personal need of the shop in dispute after declaration and notification of vacancy by the Rent Control and Eviction Officer who again called report from the Rent Control Inspector. The Rent Control Inspector also vide his report dated 2.9.1998 reported that the need of the petitioner is genuine and bona-fide. 5. From the record it appears that the release application was rejected by the Rent Control and Eviction Officer vide judgment and order dated 15.12.1998 appended as Annexure-3 to the writ petition on the ground that the prospective allottee had intimated that the petitioner had wrongly mentioned his income from rent as Rs. 1,400 per month whereas he is getting Rs. 2,270 per month as rent and the shop in dispute was let out to someone. The prospective allottee is alleged to have filed several objections against the release application filed by the petitioner. The petitioner preferred Rent Control Revision No. 1 of 1999, Umesh Chandra Shukla vs. Rent Control and Eviction Officer, Allahabad, before the District Judge, Allahabad against the order dated 15.12.1998. However, the aforesaid revision filed by the petitioner against the order of the Rent Control and Eviction Officer before the District Judge was also dismissed vide impugned judgment and order dated 6.1.1999 appended as Annexure-8 to the writ petition. 6. The Rent Control and Eviction Officer thereafter allotted the shop in dispute to Sri Mohd. Yasin, respondent No. 3 vide order dated 31.3.1999 on a monthly rent of Rs. 250 only. 7. The petitioner again filed Revision No. 410 of 1999 against the aforesaid order dated 31.3.1999 which too has been rejected vide impugned order dated 11.12.2001, hence this writ petition. 8. By means of this writ petition the petitioner has prayed for a writ of certiorari for quashing the impugned orders dated 11.12.2001, 31.3.1999 and 15.12.1998 passed by respondent Nos. 1 and 2 and allow the release application of the petitioner. 8. By means of this writ petition the petitioner has prayed for a writ of certiorari for quashing the impugned orders dated 11.12.2001, 31.3.1999 and 15.12.1998 passed by respondent Nos. 1 and 2 and allow the release application of the petitioner. It is further prayed by the petitioner that a writ of mandamus be also issued commanding respondent No. 2 to stay further proceedings in Case No. 12 of 1997, Mohd. Yaseen vs. Umesh Chandra Shukla, in respect of premises No. 504, Mumfordganj, Allahabad and also not to interfere with the peaceful possession of the petitioner of the shop in dispute till the disposal of the writ petition. 9. The contentions of the learned Counsel for the petitioner are that the shop in dispute was never let out to any one except Sri Nileshwar Das Gupta that the need of the petitioner is genuine and bona-fide; that there is basic difference between Section 16 and Section 21(1)(a) of the U.P. Urban Buildings (Regulation of Letting. Rent and Eviction) Act, 1972 (Act No. XIII of 1972) and therefore the bona-fide need of the petitioner cannot be compared u/s 21(1)(a) of the Act ; that the prospective allottee has no right to oppose the release application of the petitioner and to adduce any evidence in rebuttal on the bona-fide need of the petitioner; that the allottee has not complied with the mandatory provision of paying rent within a week from the date of allotment and the courts below have erred in holding that the allottee could not pay the rent within a week from the date of allotment because the petitioner had obtained stay order whereas the stay order was granted after more than a week of the passing of the allotment order and that the courts below have erred in holding that the allotment order is in form 'B' whereas issuance of form 'B' is a ministerial act and is issued in consonance with the allotment order. 10. In support of his contention the learned Counsel for the petitioner has relied upon the decisions of this Court in Smt. Savitri Devi Rohatagi vs. Vth Additional District and Sessions Judge, Kanpur Nagar, 2006 (62) ALR 267 and Baleshwar Nath Bhargava vs. District Judge, Saharanpur and Others, 2006 (62) ALR 201. 10. In support of his contention the learned Counsel for the petitioner has relied upon the decisions of this Court in Smt. Savitri Devi Rohatagi vs. Vth Additional District and Sessions Judge, Kanpur Nagar, 2006 (62) ALR 267 and Baleshwar Nath Bhargava vs. District Judge, Saharanpur and Others, 2006 (62) ALR 201. In Smt. Savitri Devi (supra), it has been held: In the absence of allotment order or release order, it is only landlord who is entitled to possess the building in dispute. It has further been held: The concept of bona-fide need u/s 16 is slightly different in the concept of bona-fide need u/s 21 of the Act u/s 16 there is no sitting tenant and prospective allottee has got no say in matter while u/s 21 there is a sitting tenant whose interest is to be safeguarded. In a particular case need may not be grave enough for release u/s 21 of the Act against sitting tenant but it may be quite sufficient for release u/s 16 of the Act. 11. In Baleshwar Nath Bhargava (supra), it has been held: As held in the Full Bench authority of this Court in Talib Hasan vs. A.D.J. 1986 (12) ALR 113 (FB) and by the Supreme Court in Ram Narayan Sharma vs. Shakuntala Gaur, (2002) 5 SCC 184 prospective allottee cannot be heard at the time of consideration of release application of landlord u/s 16 of the Act. He cannot even oppose the need of the landlord. He can also neither refute the evidence adduced by the landlord nor adduce any evidence regarding bona-fide need of the landlord. In the instant case not only allottee was permitted to adduce the evidence in rebuttal of bona-fide need of landlord but even the need of landlord and prospective allottee were compared by the courts below. It is patently against the letter and spirit of Section 16 of the Act. Concept of bona-fide need u/s 21 on the one hand and u/s 16 on the other hand is quite different u/s 21 interest of sitting tenant is to be safeguarded while u/s 16 there is no sitting tenant and prospective allottee has got no say in the matter unless release application of the landlord is rejected. 12. Concept of bona-fide need u/s 21 on the one hand and u/s 16 on the other hand is quite different u/s 21 interest of sitting tenant is to be safeguarded while u/s 16 there is no sitting tenant and prospective allottee has got no say in the matter unless release application of the landlord is rejected. 12. On the contrary the main contentions of the learned Counsel for the respondent-prospective allottee are that the judgment and order dated 31.3.1999 passed by the prescribed; authority is legal, proper and genuine and is liable to be confirmed by this Court; that the judgment and order dated 11.12.2001 passed by the revisional court is legal and proper and need no interference by this Court; that both the courts below have recorded concurrent findings of fact, as such liable to be upheld by this Court ; that the petitioner has given contradictory statement regarding his income. 13. As far as the objection filed by the respondent is concerned, from the record it is disclosed that the same is not supported by any affidavit, hence the same cannot be relied. 14. The shop in dispute was always found locked whenever the Rent Control Inspector visited the shop in dispute and is still vacant. Besides this it is also come on record that the daughter of the petitioner is of marriageable age and the petitioner is unable to marry her due to financial crunch and that after the shop is released the petitioner is desirous of opening his own General, Merchant shop after taking loan from his relatives and friends. 15. In my opinion the contention of the learned Counsel for the petitioner has force and the need of the petitioner is bona-fide. Even comparative hardship of the petitioner is greater than that of the respondent who otherwise being a prospective allottee has neither any right of say in the matter nor has any right to challenge the bona-fide need and comparative hardship of the landlord. The allotment to a prospective allottee was in the teeth of the law laid down in Smt. Savitri Devi (supra) and Full Bench decision rendered in Baleshwar Nath (supra) wherein it has been held that prospective allottee cannot even be heard at the time of consideration of release application. This right under the Act is only of the tenant who is in actual lawful physical possession of the accommodation. 16. This right under the Act is only of the tenant who is in actual lawful physical possession of the accommodation. 16. For the reasons stated above, the petition is allowed. The impugned orders are quashed. No order as to Costs.