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Allahabad High Court · body

2016 DIGILAW 1546 (ALL)

Kishore Kumar Chaurasia v. Durga Devi

2016-04-25

SUNITA AGARWAL

body2016
JUDGMENT Mrs. Sunita Agarwal, J. – By means of the present writ petition, the petitioner is challenging the findings on bona fide need and comparative hardship recorded by two Courts below in the proceedings under Section 21(1)(a) of U.P. Act No. 13 of 1972 for release of the shop in question. 2. The need set up by the landlady in the release application was to establish her son in an independent business. The release application was contested by the tenant on the ground that the son of the landlady was doing business in a shop at Manniganj Bazaar. 3. In rebuttal, the landlady filed her affidavit before the Prescribed Authority to submit that the shop at Manniganj is occupied by her husband wherein he was doing his business. The son of the landlady was helping his father and he has a family to support. He needs to start his independent business in order to augment his income to support his family. 4. Challenging the release order, the submission of learned counsel for the petitioner is that the Appellate Authority has erred in rejecting the application for additional evidence and in passing an ex-parte order on the same day affirming the order of release passed by the Prescribed Authority. 5. In order to establish his contention, the attention of the Court has been invited to page 77 of the paper book the affidavit filed before the Prescribed Authority. This affidavit was filed before the Prescribed Authority and objections therein have been considered. So far as the affidavit which is filed before the Appellate Authority is concerned, the same is not on record. However, the objections of the landlord is on record at Page No. 93 of the paper book. A perusal of the same indicates that the said affidavit was nothing but repetition of the averments made in the affidavit at page 77 of the paper book filed before the Prescribed Authority. 6. In view thereof, this Court does not find any justification to interfere in the action of the Appellate Authority in rejecting the application for additional evidence and proceed to decide the appeal on merits. The Appellate Authority has categorically recorded that the counsel for the petitioner did not appear to argue the matter and as such the appeal was decided ex-parte. The Appellate Authority has categorically recorded that the counsel for the petitioner did not appear to argue the matter and as such the appeal was decided ex-parte. The plea taken by the petitioner is that he was ill and, therefore, could not appear before the Appellate Court. So far as the non appearance of the counsel is concerned, there is no explanation. 7. As far as the merits of the release application is concerned, learned counsel for the petitioner could not dispute that the son of the landlady is helping his father and is not engaged in an independent business. 8. It is well-settled that every adult member of the family has a right to do his/her independent business. The Rent Controller Authority cannot take any exception to the need set up by the landlady to settle her son in an independent business. 9. No other point has been pressed. 10. No infirmity is found in the orders impugned as it is categorically recorded by both the Courts below that the tenant has failed to establish that the landlady's son is doing an independent business. 11. Lastly, learned counsel for the petitioner requested that some reasonable time may be provided to the tenant to shift his belongings elsewhere. 12. To this submission, no objection was taken by the learned counsel for the respondent. 13. It is, therefore, directed that the petitioner shall file an undertaking within a period of four weeks before the Court below that he will vacate the shop in question on or before 01.05.2017. In case the petitioner fails to furnish the undertaking or vacate the shop in question within the time given above, proceedings for his eviction may be initiated. 14. With the above observations and directions, the writ petition is dismissed. Petition dismissed.