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2015 DIGILAW 2544 (ALL)

Rehanul Haq @ Kallu v. Imranul Haq

2015-08-21

SUNITA AGARWAL

body2015
JUDGMENT Mrs. Sunita Agarwal, J. This writ petition is directed against the order for release under Section 21(1)(a) of U.P. Act 13 of 1972 passed by the Prescribed Authority and affirmed by the Appellate Court. 2. the order passed by the Court below, Smt. Rama Goel "Bansal", learned counsel for the petitioner vehemently submits that the building in possession of the petitioner is residential in nature and it could not be vacated for commercial purpose in view of clear prohibition under Clause (ii) of third proviso to 21(1) which reads as under: - "Provided also that no application under clause (a) shall be entertained- (ii) In the case of any residential building, for occupation for business purposes" 3. She submits that the release application was filed both for residential and commercial need of the landlord. In the release application, the landlord has come out with a plea that brassware business is being run by him in front portion of the building in question for more than 40 years. He purchased it in the year 1995 to use it for commercial purpose. Apart from this, other properties have been purchased by him to accommodate his extending family from time to time and they are using the building in question both for commercial and residential purposes. The landlord has six sons and one daughter. The family of four sons are living in the houses purchased by him. In brassware business which is being run in a room in the building in question, now his two sons have joined and for expansion of his business and to settle his sons during his life time, he needs the premises. 4. The release application was contested by the tenant on the ground that the building in question is quite big and there exists two rooms and one 'Baithak' which are in vacant state and in possession of the landlord and the landlord may use it for the need set up by him. 5. Both the courts below have given findings of fact on the issues whether the landlord was carrying out the business, nature of the building and the need of his sons and found that the landlord was carrying on business of brassware for the last 40 years and now his sons joined him. 5. Both the courts below have given findings of fact on the issues whether the landlord was carrying out the business, nature of the building and the need of his sons and found that the landlord was carrying on business of brassware for the last 40 years and now his sons joined him. So far as alternative accommodation alleged by the tenant, the tenant has not been able to prove.The finding is that a portion of the building is being used for commercial business i.e. brassware business. 6. Challenging this findings, Smt. Rama Goel, learned counsel for the petitioner/tenant vehemently submits that as per clause (ii) of third proviso to Section 21(1) of the Act the building which is residential in nature cannot be vacated for commercial purpose. Though it is admitted to the tenant that the respondent landlord is carrying on his brassware business in a portion of the house, the contention is that the dominant purpose of use of the building is to be seen. 7. Heard learned counsel for the parties and perused the record. 8. Before dealing with the submission of learned counsel for the petitioner, the proviso (ii) to Section 21(1) of the Act is to be seen. The word "residential building" refers to the building as a whole and not only the tenanted accommodation/tenement." Admittedly, in the front portion of the building, the landlord is doing his brassware business for the last 40 years. There is nothing on record brought by the petitioner/tenant that there are other tenants in the building in question or the other portion of the building is being used for residential purpose except the accommodation in possession of the petitioner tenant. The extent of the tenement in occupation of the petitioner has not been disclosed in the written statement. 9. Learned counsel for the respondent/landlord submits that the tenant occupies only one small room and is using open verandah which exists at back portion of the building. Apart from this, the entire front portion of the building is being used for commercial purpose. Thus, the dominant purpose of the building as it reflected from the record is commercial. The building cannot be said to be a "residential building" as per Clause (ii)of third proviso of section 21(1) . 10. Apart from this, the entire front portion of the building is being used for commercial purpose. Thus, the dominant purpose of the building as it reflected from the record is commercial. The building cannot be said to be a "residential building" as per Clause (ii)of third proviso of section 21(1) . 10. In this view of the matter, the argument of learned counsel for the petitioner is that it could not be released for commercial purpose cannot be accepted. There is no other submission. No infirmity is found in the order impugned. 11. The writ petition is dismissed. 12. Learned counsel for the respondent/landlord submits that the petitioner/tenant has not paid rent of the tenement since the inception of the tenancy and he is a rank defaulter. A suit for arrears of rent and eviction has been filed before the Judge, Small Causes Court. Smt. Rama Goel, learned counsel for the petitioner submits that as per instructions received by her, entire rent has been deposited before the Judge, Small Causes. 13. So far as arrears of rent is concerned, the respondent may move an application before the Judge, Small Causes Court. 14. Learned counsel for the petitioner further requested that the petitioner may be given sufficient time to remove his belongings from the disputed accommodation. Learned counsel for the respondent has no objection. 15. In view of the same, it is directed that the petitioner shall file an undertaking before the Court below within a period of two weeks stating therein that he would vacate the premises in question on or before 30th November, 2015. In case, he fails to file the undertaking or vacate the premises within the time provided herein above, proceedings for his eviction shall be undertaken.