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2011 DIGILAW 1763 (ALL)

Arvind Kumar v. ADJ Court No. 7, Meerut and others

2011-07-21

SHASHI KANT GUPTA

body2011
Shashi Kant Gupta, J.;- 1.Supplementary affidavit filed today is taken on record. 2. An application under Section 21 (1) (a) of U.P. Act No. 13 (in short "Act") was filed by the Respondents no. 3, 4 and 5 for the release of the disputed premises on the ground of bonafide and genuine need. The Prescribed Authority after considering the material on record allowed the said application filed under Section 21 of the Act by order dated 3.11.2003. Thereafter the petitioner filed an appeal under Section 22 of the Act which was registered as PA Appeal No. 202 of 2003 and the same has been dismissed by order dated 4.7.2011. Hence the present writ petition. 3. Brief facts of the case are as follows; 4. Respondent No. 3 is a widow. The application under 21 was filed by the Respondent No. 3 for settling her elder son Respondent No. 4 in the business in the disputed premises. It was alleged that the disputed shop has come in the share of the Respondent No. 3 on the basis of family settlement as well as through will deed executed by father-in-law of the Respondent No. 3. Learned trial court after hearing the learned counsel for the parties and perusing the evidence on record allowed the said application and that order has been confirmed by the appellate court. 5. Learned counsel for the petitioner submitted that in fact there was no family settlement of the disputed property but in order to seek eviction of the petitioner, fictitious family settlement to create evidence has been filed by the landlord. It is further stated that during the pendency of the appeal, few shops were also let out to Manoj Sharma, Bangal Sweet and JRC Telvision and the appellate court has not considered the matter in proper perspective. 6. Heard the learned counsel for the petitioner and perused the record. 7. A perusal of the record shows that the both the courts below after perusing the pleadings and evidence on record held that the need of the landlord is bonafide and genuine, and the comparative hardship also tills in favour of the Respondent No. 3. 6. Heard the learned counsel for the petitioner and perused the record. 7. A perusal of the record shows that the both the courts below after perusing the pleadings and evidence on record held that the need of the landlord is bonafide and genuine, and the comparative hardship also tills in favour of the Respondent No. 3. The court below have categorically recorded the findings that the disputed shop has come in the share of Respondents No. 3 and 4 and also the elder son of the Respondent No. 3 is unemployed, and the shop in dispute is required for establishing him in business. The appellate court has also recorded the finding of fact that alleged shops were not let out by the Respondent No. 3 and 4 and petitioner has not been able to prove before the court below that any such shops were ever let out to any one. The court below has also recorded a finding that comparative hardship tilts in favour of the landlord and that during the pendency of the case, the petitioner did not make any effort to search out any alternative accommodation. 8. Both the courts below have recorded the findings of fact holding the need of the landlord to be bonafide and genuine and the said findings are based on the evidence available on record. Both the courts below have given cogent, convincing and satisfactory reasons while passing the order in favour of the landlord. The finding recorded by the courts below are neither perverse nor based on any extraneous or irrelevant material. The appellate court has on meticulous evaluation of evidence and material available on the record, found the need of the Respondent No. 3 to be bonafide and genuine. This court under Article 226 of the Constitution of India can not substitute its own opinion to the opinion of the courts below unless it is found that the conclusions drawn by the lower courts are erroneous being contrary to the mandatory provisions of law based on inadmissible evidence or arrived at findings without evidence. 9. No other point has been pressed by the learned counsel for the petitioner. 10. I do not see any merit in the writ petition, the writ petition is, accordingly, dismissed. 11. 9. No other point has been pressed by the learned counsel for the petitioner. 10. I do not see any merit in the writ petition, the writ petition is, accordingly, dismissed. 11. After the judgment was dictated, learned counsel for the petitioner urged that at least six months' time may be granted to him for vacating the premises in question. The learned counsel for the Respondent No. 3 did not raise any objection to it. 12. As urged by the learned counsel for the petitioner, six month's time is granted to the petitioner to vacate the premises in dispute provided the petitioner gives his undertaking in the form of an affidavit before the prescribed authority within one month from today specifically stating therein that he will handover the peaceful possession of the said accommodation to the opposite parties without inducting any third person within a period of six months' from today. It is further provided that the petitioner shall pay the entire arrears of rent including the rent payable upto the date of delivery of the vacant possession of the disputed premises within one month from today. 13. In the event of default in of any of the aforesaid conditions, the landlord opposite parties will be at liberty to proceed to evict the petitioner if necessary by coercive process with the aid of police force.