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2009 DIGILAW 2605 (ALL)

RAJ KUMAR v. LAL KHAN (DEAD) Through LRs.

2009-07-20

POONAM SRIVASTAV

body2009
JUDGMENT Mrs. POONAM SRIVASTAV, J.--Heard Sri S.C. Mandhyan, learned Counsel for the petitioner and Sri Rishi Chaddha Advocate for the landlord/respondent. 2. The landlord instituted a release application under section 21 (1) (a) of the U.P. Act No. 13 of 1972 (hereinafter referred as the Act) to release the acrommodation No. 29/274/4 Katra Haji Hasan Nala Peepal Mandi. Agra. The release application was filed on the ground that the landlord had purchased another House No. 29/274/3 and 29/274/5 situated in Katra,. Haji Hasan Nala. Agra from Dr. Abdul Jalil Beig vide sale deed dated 30.10.1998 for stating a school in the name of L.K. Mansoori Public School. The disputed accommodation was required for extension of school. Besides, the tenant had taken unauthorized possession of one room on the ground floor and one room on the first floor, open roof and staircase of which he was not a tenant. In fact only Astbal and Phatak was let out at rent of Rs. 50/- per month. Previously the landlord was running his school from property No. 23/24 Pai Chowki, Agra which now stands transferred to the newly purchased property and studies upto Class VIII were being conducted having 16 teachers, 2 clerks, 2 chaprasi, 1 safai karmchari and 448 students at that time. Now the permission was accorded to the landlord to extend the school up till High School stage and since the disputed acommodation which was unauthorizedly occupied by the tenant as well as the acmrnmodation already in his tenancy, was required to run the classes as it was in the same vicinity. 150 additional students were transferred from Pai Chowki, Agra and the landlord had made a request to the petitioner for vacating one room the ground floor and one room on the first floor and the staircase. Previously the tenant gave assurance but subsequently he failed to respect his promise. The landlord claimed that the property was bonafidely required and greater hardship will be caused in great measure to the landlord in the event of refusal of release. Besides, it was pleaded that the petitioner has got a property No. 29/183, Nala, Peepal Mandi. Agra where he has got a shop which is near the property in dispute. In addition to this he is owner of Sunita Raj Bhawan. Besides, it was pleaded that the petitioner has got a property No. 29/183, Nala, Peepal Mandi. Agra where he has got a shop which is near the property in dispute. In addition to this he is owner of Sunita Raj Bhawan. The tenant contested the release application on the ground that be was doing crockery business on the ground flsoor and the first floor was being used for storing the goods as well as for residential purpose. The alternative accommodation suggested by the landlord was denied by the tenant on the ground that the property was in possession of his brother Gyan Chand who lives separately and Phatak was in possession of the son of the pebtioner Gopi Chand who also lives separately and doing his separate business. The property situated at Geeta Bhawan was claimed by the tenant to belong to his brother Sarvan Kumar who is also living separately and having his own business. Oral and documentary evidence were led. The prescribed authority by virtue of judgment and order dated 1.9.2005 dismissed the release application. The finding on the question of bona fide need and comparative hardship was recorded in favour of the petitioner. 3. Aggrieved by the judgment and order dated 1.9.2005, the landlord-respondent preferred Rent Appeal No. 159 of 2005 m the Court of District Judge, Agra which was transferred to the Court of Additional District Judge, Court No. 18, Agra who allowed the release application vide judgment and order dated 10.5.2006 on both the Counts that the need of the landlord is bona fide and he will suffer greater hardship than the tenant in the event of refusal of release. 4. The petitioner has tried to assert in the writ petition that the landlord has failed to produce any document that any such approval was accorded by the High court and Intermediate Board for upgrading his school up till Class Xo Assuming the school was upgraded then there was sufficient accommodation and also it is pleaded for the first time in the writ petition that the petitioner is a blind person. Counter-affidavit has been filed, all the assertions in the writ petition have been disputed. As agreed between the respective Counsels, the writ petition is being decided at the stage of admission itself. 5. I have heard the respective Counsels at length and gone through the judgments. Counter-affidavit has been filed, all the assertions in the writ petition have been disputed. As agreed between the respective Counsels, the writ petition is being decided at the stage of admission itself. 5. I have heard the respective Counsels at length and gone through the judgments. The Lower Appellate Court has recorded a finding on the basis of tax assessment record. In fact the disputed accommodation in tenancy is only Astabal/Phatak and the tenant has deliberately tried to confuse the issues before the Trial Court. Besides, after taking into consideration the evidence adduced on both sides, while recording a finding on the question of bona fide need, a number of decisions have been followed on the principle laid down in Gaya Prasad Rastogi Vo VIIIth Additional District judge, Kanpur,1 where this Court has concluded that while recording a finding on the question of 'bona fide need' the Court has to assess on the basis of evidence that whether the intention of the landlord is malafide or not? If the Court is of the view that there is no malice while instituting the release application and requirement pleaded by the landlord appears to be satisfactory, and substantiated, it is sufficient to come to a conclusion that the need is bona fide. Similar view was expressed in the case of jagdish Singh v. VIIth Additional District judge, Kanpur.2 1. 1990 (16) ALR 768=1990 (2) ARC 313. 2. 1986 (1) ARC 361. 6. Admittedly the disputed accommodation was also purchased along with other two buildings mentioned in the foregoing paragraphs of this judgment and admittedly for the purpose of running a school which was in occupation of the tenant since before its purchase, he had subsequently usurped some additional accommodation and, therefore, the landlord cannot be deprived of his own property only because the tenant is not willing to do so. In the case of jayant Kumar v. Prescribed Authority, Nainital and others3 it was held that it was not necessary for the landlord to establish from evidence that he is in a dire necessity of the accommodation in question, even if this requirement stands established by sufficient proof. It is enough to come to a conclusion and hold that it is bonafidely required. There are several recent decisions on the same lines which need not be gone into. 3. 1991 (1) ARC 456. 7. It is enough to come to a conclusion and hold that it is bonafidely required. There are several recent decisions on the same lines which need not be gone into. 3. 1991 (1) ARC 456. 7. The Lower Appellate Court has recorded categorically that the landlord requires the accommodation in question bonafidely. He had instituted the release application in the year 2002. A notice was already given to him in the year 2001 but the tenant has not made any effort to search out an alternative accommodation even on receipt of the notice. This is sufficient to debar him from consideration of his hardship by the Court. However, the Lower Appellate Court has also recorded a specific and categorical finding of fact that the need of the landlord is genuine and he will suffer greater hardship. The Lower Appellate Court while recording its finding on the comparative hardship was placed reliance on two decisions; Hetra Lill (deceased) through its. legal representative v. Vth Additional District judge, Bareilly,4 and Rajendra v. Gopal Krishna.5 4. 2006 (2) ALR 205. 5. 1994 (2) ARC 11 . 8. For the discussion already made above, I am of the view that the tenant has not made any convincing argument to set aside the judgment of the Appellate Court. No good ground for interference under Article 226 of the Constitution of India has been made out. There is no legal grounds whatsoever. This Court cannot reassess the evidence and enter into question of fact In the circumstances, the writ petition lacks merit and is accordingly dismissed. 9. In the end, learned Counsel for the petitioner has made a request that some time may be given to the petitioner to vacate the accommodation in question. This request appears to be justified. The tenant is permitted four months' time from today to vacate the accommodation in question and handover vacant possession to the landlord till 22.11.2009 provided he files an undertaking that he will handover vacant possession on or before 22.11.2009 and also deposits entire arrears of rent and also current rent up till 22.11.2009. In the event of default, this liberty shall stand discharged. Petition Dismissed.