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2011 DIGILAW 214 (ALL)

Krishna Nand Gupta v. Additional District Judge Rae Bareli

2011-01-28

ANIL KUMAR

body2011
JUDGMENT Hon'ble Anil Kumar, J. - By means of the present writ petition, the petitioner has challenged the order dated 03.11.2009 and 25.10.2010 passed by Prescribed Authority in PA Case No. 6 of 2008 Mahesh Chandra Vs. Krishnanand Gupta and Appellate Authority in appeal No. 50 of 2009, Krishnanand Gupta Vs. Mahesh Chandra respectively. Facts in brief of the present case are that the controversy in the present case relates to house No. 398 Ward No. 17, Mohalla Mall Khana South Jahana Bad, Rae Bareli (hereinafter referred to as the premises in question) 2. O.P. No. 2 is a landlord of the premises in question and the petitioner is a tenant of one room and balcony of the said house at a monthly rent of Rs. 20/- per month. 3. The O.P. No. 2/landlord filed an application under Section 21 (1) (a) of Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the U.P. Act 13 of 1972) for eviction of the petitioner/tenant from the premises in question registered as P.A. Case No. 6 of 2008 in the court of Prescribed authority/Addl. Civil Judge (Sr. Div.), Court No. 14, Rae Bareli. Thereafter in the matter in question, the pleading as well as evidences were exchanged and on the basis of the same, the prescribed authority had come to the conclusion that a need of the landlord is more genuine and bona fide in comparison to the tenant and accordingly allowed the application under Section 21(1)(a) of U.P. Act 13 of 1972 moved by the O.P. No. 2/landlord vide order dated 23.11.2009. 4. Aggrieved by the same, the petitioner filed a rent appeal under Section 22 of the U.P. Act 13 of 1972 registered as Rent Appeal No. 50 of 2009 Krishnanand Gupta Vs. Mahesh Chandra). 4. Aggrieved by the same, the petitioner filed a rent appeal under Section 22 of the U.P. Act 13 of 1972 registered as Rent Appeal No. 50 of 2009 Krishnanand Gupta Vs. Mahesh Chandra). The appellate authority/ Additional District Judge, Rae Bareli after hearing the parties therein and on the basis of the material evidence on record come to the conclusion that the need of the landlord is more genuine in comparison to the need of the tenant/petitioner and also a finding has been recorded that since the date of filing of the release application, no effort has been made by the tenant/petitioner to search for an alternate accommodation, so his comparative need cannot be taken into consideration as per the settled proposition of law as laid down in this regard by the Apex Court as well as by this Court and on the basis of the said finding of fact which was based on record, dismissed the appeal and affirmed the order passed by the prescribed authority. Hence the present writ petition has been filed. 5. I have heard Sri R.K. Srivastava Gyan, learned counsel for the petitioner and Sri Manish Kumar and Sri Bireshwar Nath, Advocate on behalf of opposite party Nos. 1 and 2 respectively.. 6. Sri R.K. Srivastava Gyan, learned counsel for the petitioner while assailing the impugned orders which are under challegne submits that the orders passed by the courts below are totally illegal, arbitrary and contrary to the facts, he further submits that the petitoiner/tenant has no other house except the rented one in the city of Rae Bareli and in case if he vacate from the premises in question he will suffer a hardship, the said facts was not considered in the matter. So, the orders passed by the court below are liable to be set aside. 7. Sri Bireshwar Nath, learned counsel for the respondent No. 2 on the other hand submits that a concurrent finding of fact has been recorded by the courts below in respect to bona fide need of the landlord/respondent in the matter in question and after taking into consideration the said fact, as well as the fact that the petitioner/tenant has not made any effort to search the alternate accommodation in the matter in question, the present writ petition filed by him is liable to be dismissed. 8. 8. In view of the abovesaid facts and argument advanced by learned counsel for the parties and as per the position which is admitted by the counsel for the petitioner that no effort has been made by his client to search alternate accommodation in the instant case in regard to which the court below had given categorical finding of fact that the tenant did not make any effort to search an alternative accommodation immediately after filing of the release application and even during the pendency of appeal so the said facts were sufficient to tilt the balance of the comparative hardship against the tenant in the present case. In view of the law as laid down by Hon'ble Supreme Court in the case of B.C. Bhutada V. G.R. Mundada, wherein it was held that bona fide requirement implies an element of necessity. The necessity is a necessity without regard to the degree to which it may be. For the purpose of comparing the hardship the degree of urgency or intensity of felt need assumed significance. 9. In the above authority it has also been held in para 13, that tenant must show as to what efforts he made to purchase or take on rent other accommodation after filing of the release application which is quoted below:- " In Piper V. Harvey, the issue as to comparative hardship arose for the consideration of Court of appeals under the Rent Act, 1975. Lord Denning opined; "when I look at all the evidence in his case and see the strong case of hardship which the landlord put forward, and when I see that the tenant did not give any evidence of any attempts made by him to find other accommodation, to look for another house, either to but or to rent, it seems to me that there is only one reasonable conclusion to be arrived at, and that is that the tenant did not prove ( and the burden is on him to prove) the case of greater hardship." Hudson, L.J. ,opined: " the tenant has not been able to say any thing more than the minimum which every tenant can say, namely, that he was in fact been in occupation of the bungalow, and that he has not at the moment any other place to go to. He has not, however, sought to prove any thing additional to that by way of hardship such as unsuccessful attempts to find other accommodation, or , indeed , to raise the question of his relative financial incompetence as compared with the landlord." On such state of the case, the Court answered the issue as to comparative hardship against the tenant and ordered his eviction." Further this Court in the case of Salim Khan Vs. IVth Additional District Judge, Jhanshi and others, has held as under:- " in respect of comparative hardship , tenant did not show what efforts they made to search alternative accommodation after filing of release application . This case sufficient to tilt the balance of hardship against them Vide Bhutada V. G.R. Mundada. Moreover, rent of Rs. 6/- per month which the tenants are paying is virtually as well as actually no rent. By paying such insignificant rent they must have saved a lot of money. Money saved is money earned. They must, therefore, be in a position to take another house on good rent. Further, they did not file any allotment application for allotment of another house. Under Rule 10(3) of the Rules framed under the Act, a tenant, against whom release application has been filed, is entitled to apply for allotment of another house immediately. Naturally such person is to be given preference in the matter of allotment. Respondents did not file any such allotment application. Thus, the question of comparative hardship has also to be decided against the tenants." The said view has been further reiterated by this Court in the following cases:- (1) Jai Raj Agarwal Vs. Bhola Nath kapoor and others (2) Rulemuddin and others Vs. Abdul Nadeem (3) Mohabbey Ali Vs Taj Bahadur and other (4) Raj Kumar Vs. Lal Khan (5) Ashis Sonar and other Vs. Prescribed Authority and others 12. In the light of the abovesaid facts, I do not find any illegality or infirmity in the impugned orders which are under challenge in the present writ petition. 13. Needless to mention herein that learned counsel for the petitioner after arguing at some length had requested that sometime may be granted to the petitioner to vacate the premises in question and his client will hand over the peaceful possession of the same to the landlord/respondent no. 2. 14. 13. Needless to mention herein that learned counsel for the petitioner after arguing at some length had requested that sometime may be granted to the petitioner to vacate the premises in question and his client will hand over the peaceful possession of the same to the landlord/respondent no. 2. 14. Keeping in view the said fact, the tenant/petitioner is permitted to retain the possession by 31st of July, 2011 provided he gives an undertaking on an affidavit before the prescribed authority/Addl. Civil Judge (Sr. Div.), Court No. 14, Rae Bareli within a period of three weeks from today that he will vacate and hand over the peaceful possession of the premises in question on or before 31st of July, 2011. 15. With the above observations, the writ petition is dismissed.