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2011 DIGILAW 2415 (ALL)

Satya Deo Prasad v. Spl. Judge/A. D. J, & others

2011-10-17

S.K.GUPTA

body2011
Shashi Kant Gupta, J.;- 1. This writ petition is directed against the order dated 4.4.2002 (Annexure - 22 to the writ petition) passed by the Special Judge/Additional District Judge, Azamgarh and the impugned order dated 20.5.1993 (Annexure 16 to the writ petition) passed by the Prescribed Authority (Civil Judge) whereby the release application of the landlady has been allowed. 2. Brief facts of the case are as follows; 3. The release application was jointly filed under Section 21 of the UP Act No. 13 of 1972 (in short "Act") in the year 1984 by Smt. Bhuna and her daughter Smt. Sushila Devi whereby the need of the son of Respondent No. 3 Shushila Devi namely Puncham was set up for carrying on the business from the disputed shop. The petitioner filed his written statement and contested the matter. The Prescribed Authority by order dated 29.10.1986 allowed the release application. Against the said order, an appeal was filed by the petitioner and the appellate authority by order dated 23.8.1989 remanded the matter back to the Prescribed Authority with certain direction. Thereafter, the Prescribed Authority again allowed the release application by order dated 21.4.1990. The petitioner filed again an appeal and the appellate authority again set aside the order passed by the Prescribed Authority and remanded the matter back to the Prescribed Authority by judgment and order dated 30.11.1990. Thereafter, the Prescribed Authority after considering the pleadings and evidence on record as well as rival submissions made by the parties allowed the release application by judgment and order dated 20.5.1993. Being aggrieved and dissatisfied with the said order, the petitioner filed an appeal and the said appeal was registered as Appeal No. 64 of 1990. The appellate court, by judgment and order dated 4.4.2002 dismissed the appeal. Hence, the present writ petition. 4. Learned counsel for the petitioner has submitted that the courts below have erred in allowing the release application, holding the need of the landlady to be bonafide and genuine, and also that the comparative hardship in her favour. It is further submitted that no partition of the disputed property ever took place among the legal heirs of late Smt. Bhuna. 5. Per contra, learned counsel for the landlady, Respondent No. 3 has supported the impugned orders and submitted that the judgment and order passed by the courts below are in accordance with law and does not require any interference. 5. Per contra, learned counsel for the landlady, Respondent No. 3 has supported the impugned orders and submitted that the judgment and order passed by the courts below are in accordance with law and does not require any interference. 6. Heard the learned counsel for the petitioner and perused the record. 7. Both the courts below after perusal of pleadings and evidence available on record held that the need set up by the landlady Shushila Devi for her son, is bonafide and genuine and the comparative hardship also tilts in her favour. It was categorically held by the courts below that the the son of the landlady is unemployed and does have any other premises to carry on the business and on the other hand, the petitioner has got sufficient resources and alternative accommodation to shift his business. The courts below have recorded a finding that the property in dispute was originally owned by Smt. Bhuna Devi who executed a gift deed in favour of her three daughters namely, Smt. Sushila Devi, Respondent No. 3, Champa Devi and Urmial Devi and partition of the disputed premises took place among the three daughters of Smt. Bhuna and the premises in dispute fell into the share of Smt. Sushila, Respondent No. 3, as such, she became the owner of the said premises. 8. The finding of facts recorded by the courts below with regard to gift deed and partition among the daughters is based on material available on record and cannot be interfered with. Both the courts below after perusal of evidence and pleadings on record have held the need of the landlady to be bonafide and genuine and this finding is based on record. The courts below have given cogent, convincing and satisfactory reasons while passing the order in favour of the landlady. The courts below have also found the comparative hardship in favour of the landlady and further held that the petitioner has got alternative accommodation to shift his business. The finding recorded by the courts below are neither perverse nor based on any extraneous or irrelevant material. The appellate court below has on meticulous evaluation of evidence and material available on the record, found the need of the landlord-respondents to be bonafide and genuine. The finding recorded by the courts below are neither perverse nor based on any extraneous or irrelevant material. The appellate court below has on meticulous evaluation of evidence and material available on the record, found the need of the landlord-respondents to be bonafide and genuine. This court under Article 226 of the Constitution of India can not substitute its own opinion for the opinion of the courts below unless it is found that the conclusion drawn by the lower court is erroneous being contrary to the mandatory provisions of law applicable or based on inadmissible 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. After the judgment was dictated, learned counsel for the petitioner urged that at least six months' time may be granted to them for vacating the premises in question. The learned counsel for the landlady did not raise any serious objection to it. 12. As urged by the learned counsel for the petitioner, six months' 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 landlord-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 current rent at the rate 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 any of the aforesaid conditions, the landlord opposite party will be at liberty to proceed to evict the petitioners if necessary by coercive process with the aid of police force.