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Allahabad High Court · body

2015 DIGILAW 2156 (ALL)

Mukesh v. Additional District Judge

2015-07-28

SUNITA AGARWAL

body2015
JUDGMENT Mrs. Sunita Agarwal, J. Heard Shri Arvind Kumar Srivastava, learned counsel for the petitioner. 2. Respondent no.3 landlord has filed an application under section 21(1) (a) of the U.P. Act no. 13 of 1972 setting up his need for the shop in question for carrying out the business of gold and sliver ornaments. It is stated in the release application that the applicant was suffering from terminal disease called Cancer and had incurred huge expenditure for his treatment. The business of money lending which he was carrying out was not sufficient to meet the expenditure. He wanted to settle himself by opening shop of gold and sliver ornaments. 3. The release application was contested by the petitioners, sitting tenant on the ground that the applicant was suffering from a terminal disease for the last five years. At the relevant point of time it was not possible for him to start a new business. Apart from this fact the applicant possess other accommodation available on the Main Road Tundla area of Firozabad in which he could carry on his business. 4. Learned counsel for the petitioner further submits that the release application was filed in the year 2004 and now more than eleven years have passed.The applicant has now turned about 65 years and is also suffering from the terminal disease and therefore he is incapable to do the business. This aspect of the matter has not been considered by the Appellate Authority as well as the Prescribed Authority as well. 5. Further submission is that the alternative accommodation available to the landlord has been narrated in paragraph-6 of the written statement and paragraph 8 of the affidavit filed by the petitioner no.1 on 7.9.2009. Affidavits of two persons in support of assertions of the petitioners, namely, Vidya Ram and Yogendra have also been filed. Both the courts below did not record any specific finding of this issue while considering the bonafide need of the landlord. The need of the landlord is neither genuine nor bonafide. 6. Having heard learned counsel for the parties and perused the record. 7. Both the courts below did not record any specific finding of this issue while considering the bonafide need of the landlord. The need of the landlord is neither genuine nor bonafide. 6. Having heard learned counsel for the parties and perused the record. 7. So far as the first contention of the learned counsel for the petitioner is concerned this court is of the view that though landlord might be suffering from cancer but accepted position of the fact is that the applicant has been able to fight the said disease and has survived for so long. The Prescribed Authority and Appellate Authority did not commit any error in not accepting this argument of the tenant. 8. So far as the age of the applicant is concerned this court is of the view that a man of 65 years of age cannot be said to be incapable of starting a new venture. In this view of the matter both the courts below are justified in not accepting this contention of the learned counsel for the petitioner while deciding the release application. 9. So far as the alternative accommodations are concerned this court has examined the averments made in paragraph- 6 of the written statement and paragraph-8 of the affidavit filed by the petitioner. The assertions of paragraphs 6 and 8 of the written statement and paragraph-8 of the affidavit are vague in as much as it is stated therein that the applicant is in possession of one building on Samle Prasad Road in which shop was given on rent which was vacated during the pendency of the release application.The applicant has not given details of the shop and even name of the tenant who had vacated the alleged shop. 10. So far as the other accommodations are concerned perusal of the averments indicates that either they are dwelling units or in occupation of other family members of the applicant i.e his brother. The assertion of the petitioner regarding alternative accommodation being available to the landlord has been categorically denied by the landlord by filing his affidavit and affidavits of three persons namely, Mujiburahaman, Kishan Chandra and Shyamveer. The evidences led by both the parties in the shape of the affidavits have considered by the Appellate Authority and Prescribed Authority and a finding of fact has been recorded that the landlord is in bonafide need of the premises in question. The evidences led by both the parties in the shape of the affidavits have considered by the Appellate Authority and Prescribed Authority and a finding of fact has been recorded that the landlord is in bonafide need of the premises in question. On the alternative accommodation finding is that no alternative accommodation is available to the landlord.The contention of the petitioner-tenant has rightly been rejected by both the courts below. 11. Learned counsel for the petitioner has not been able to point out anything from the record to show that the findings of the courts below are perverse or against the record. No interference is required in the orders passed by both the courts below. 12. Learned counsel for the petitioners lastly submits that the petitioners-tenant undertake to vacate the shop in question within a period of three months. He may be granted time to vacate the premises in order to settle his belongings. 13. In view of this submission, it is provided that : - 1.the petitioners shall file an undertaking in the form of an affidavit before the court below within a period of three weeks along with the certified copy of the order. 2. In case, the petitioner files such an undertaking he may be allowed to occupy the shop till 30th November, 2015.He shall vacate the shop in question on or before 30th November, 2015. 3.In case, the petitioners fail to handover the vacant possession by the above date or fails to furnish the undertaking, with the time given above, appropriate proceeding for his eviction be initiated and be proceeded in accordance with law. 14. With these observations, the writ petition is dismissed.