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2015 DIGILAW 2101 (ALL)

A. K. Tandon v. S. P. Rastogi

2015-07-24

SUNITA AGARWAL

body2015
JUDGMENT Mrs. Sunita Agarwal, J. Heard Sri Kuldeep Saxena, learned counsel for the petitioner and Sri Rajesh Gupta, learned counsel for the respondent. 2. This writ petition is directed against the order passed on a release application filed under Section 21(1) A of U.P. Act 13 of 1972, setting up the need of respondent no. 3 Shantanu Rastogi for his lawyer's chamber. The release application was filed on 25.05.1999, it was contested by the petitioner-tenant on the ground that initially he was tenant of the open land and after occupying the land on tenancy, he had constructed a building over it out of his own expenditure. The respondent-landlord were not owners of the building and in view of Section 29 A of U.P. Act No. 13 of 1972, the petitioner is protected. He cannot be evicted from the building in question. 3. It was further stated that respondent no. 3 was a junior Advocate and there are three other landed property in the name of family in which he can open his chamber to satisfy his need. The Prescribed Authority has held that the receipts produced by the tenant were not sufficient to conclude that the land was taken on rent and the provisions of U.P. Act No. 13 of 1972 were not applicable. However, on the bonafide need, it was held that as there were several properties belonging to the family in District Meerut which were commercial and residential and hence the need of the landlord was not bonafide. He could have settled himself in any other accommodation for the need set up in the release application. The need was a mere desire and neither bonafide nor genuine. 4. The Appellate court also came to the conclusion that the petitioner has failed to establish that he was tenant of the open land and not shop in question. On bonafide need, the Appellate Court found that the alternative accommodation suggested by the Prescribed Authority were not suitable for opening the lawyer's chamber. The Kothi Motion Compound Meerut is a residential property of the joint family. Moreover, the tenant cannot dictate terms to the landlord to meet out his need in a particular manner. It was found that the landlord bonafide required the shop in question for opening lawyer's chamber. The Kothi Motion Compound Meerut is a residential property of the joint family. Moreover, the tenant cannot dictate terms to the landlord to meet out his need in a particular manner. It was found that the landlord bonafide required the shop in question for opening lawyer's chamber. On comparative hardship, the appellate court below has held that in view of the pressing need of the landlord and the fact that the tenant did not make any effect to fetch any other accommodation, the tenant would not suffer any hardship. 5. Challenging the orders impugned, learned counsel for the petitioner strenuously argued that the findings of court below on the issue raised by the petitioner that the release application under Section 29 A was not maintainable, suffers from grave error of law and are perverse. With the aid of documents filed by the tenant namely receipts of constructions and Municipal assessment record of the year 1982 learned counsel for the petitioner vehemently submits that those documents were sufficient to conclude that the constructions were raised by the tenant in the year 1982 and the building was assessed for the first time thereafter it was occupied by the tenant. It was an open land which was given on rent on which constructions were raised by the petitioner. 6. He further submits that the alternative accommodation available to the landlord has been brought on record by filing supplementary affidavit dated 10.08.2014, during the pendency of this writ petition. A shop came in possession of the landlord which fact is admitted by him. The proceedings for allotments were under taken by the RC and EO and vacancy was declared on 18.06.2014. 7. A perusal of the documents filed with the supplementary affidavit shows that the landlord had categorically stated in the document relied upon by the petitioner that the shop which fell vacant on account of declaration of vacancy has been occupied by his nephew. Prateek Rastogi son of Prem Prakash Rastogi and it is the premises belonging to joint family. In view of the fact that one of the family members is occupying the premises which fell vacant in the year 2014, it cannot be accepted that the same is available to the petitioner. 8. Prateek Rastogi son of Prem Prakash Rastogi and it is the premises belonging to joint family. In view of the fact that one of the family members is occupying the premises which fell vacant in the year 2014, it cannot be accepted that the same is available to the petitioner. 8. In so far as the applicability of Section 29 A is concerned, suffice it to say that the burden was upon the petitioner to prove by leading cogent evidence that he had taken the land on rent and not the building in question. The alleged receipt of constructions and the Municipal assessment record cannot be said to be sufficient evidence to prove the case of the petitioner. In view of this, it cannot be accepted that the petitioner had taken land on rent. It has also been recorded by the Appellate Court that the rent receipts are of shop and godown and not of the land. 9. In view of the above discussion, this court does not find any infirmity in the findings of fact recorded by both the courts below on the issue of applicability of Section 29 A of the Act. 10. On bonafide need, this court is satisfied that the tenant cannot dictate terms to the landlord as to where he should open his chamber. 11. No interference is required in the order passed by the Appellate Authority 20.07.2010 passed in Misc. Appeal No. 150 of 2003, impugned in the present writ petition. 12. Learned counsel for the petitioner further submits that the petitioner may be given a reasonable time to vacate the premises. In order to meet the ends of justice it is provided that the petitioner shall vacate the premises in question on or before 31.10.2015 provided: - 1. The petitioner files an undertaking in the form of an affidavit before the Prescribed authority within a period of two weeks that he shall vacate the premises in question on or before 31.10.2015. 2. In case the petitioner fails to file the undertaking or does not vacate the premises within the time prescribed above, appropriate proceedings for his eviction shall be undertaken in accordance with law.