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2017 DIGILAW 2727 (ALL)

Chandra Prakash Soni v. Additional District Judge

2017-11-24

RAJAN ROY

body2017
JUDGMENT : Rajan Roy, J. Heard Shri M.A Khan, learned Senior Advocate assisted by Shri Mohd. Aslam Khan, learned counsel for the petitioner and Shri Shishir Chandra along with Vishnu Pratap, learned counsel for the opposite parties no. 3 and 4. 2. This is a petition under Article 227 of the Constitution of India challenging the judgment and order passed by the Prescribed Authority as also the judgment and order in Appeal sustaining the application of the opposite parties-landlord for release of the premises in question in proceedings under Section 21-(1)(a) of the U.P. Urban Buildings (Regulation of Letting, Rent & Eviction Act) of the Act, 1972. 3. It is not in dispute that the petitioner was a tenant of one of the four shops of which the opposite parties no. 3 and 4 were the owner landlords. The application under Section 21-(1)(a) of Act 13 of 1972 was filed on the ground of genuine and bona fide need of the landlord. 4. On a perusal, the pleadings reveal that out of the four shops while the shop, which had been let out to the petitioner-Chandra Prakash Soni, was required for passage, the other three shops were required for setting up a business after consolidating them into one shop. The Prescribed Authority after considering the pleadings and evidence on record held that there was genuine bona fide need in favour of the landlord accordingly ordered for release of the shop in question and its handing over by the petitioner to the opposite parties within three months. 5. The contention of the petitioner herein before the Prescribed Authority was that the landlords were residing at Jaunpur, however, they could not prove the same. 6. On the contrary the landlord successfully proved the fact that after the death of opposite party no. 3's father the husband of the opposite party no. 4 they shifted from Jaunpur to Lakhimpur Kheeri some times in 2012. No such evidence could be led by the petitioner herein to the contrary. The Appellate Court has affirmed and agreed with the findings of the Prescribed Authority. 7. 3's father the husband of the opposite party no. 4 they shifted from Jaunpur to Lakhimpur Kheeri some times in 2012. No such evidence could be led by the petitioner herein to the contrary. The Appellate Court has affirmed and agreed with the findings of the Prescribed Authority. 7. Before this Court the contention of Shri M.A. Khan, learned Senior Advocate was firstly that in all the four applications filed against the four tenants under Section 21(1)(a) of the Act No. 13 of 1972 the same pleading alleging bona fide need for passage had been asserted which certainly could not be treated as bona fide. He also submitted that one of the shops having already been released the bona fide need, if any, already stood satisfied and there was no occasion for the release of the shop in question. 8. The other contention of Shri Khan was that the finding that there was no egress or ingress passage available to the landlord is absolutely perverse. In this regard he invited the attention of the Court two photographs annexed as Annexure No. 13 to the petition. 9. On the other hand Shri Shishir Chandra, learned counsel appearing for the opposite parties no. 3 and 4 contended that findings of fact have been recorded by the two Courts below regarding the genuine and bona fide need of the landlord as also comparative hardship being in favour of them which do not require any interference. 10. Having heard learned counsel for the parties and perused the records, the Court finds that the four shops in the premises in question, each of them measure 7x12 feet as has been averred in the application and there is nothing to the contrary on record. It is also borne out that opposite parties no. 3 and 4 were earlier residing at Jaunpur but after the death of father of the opposite party no. 3 some times in 2012 they shifted to Lakhimpur Kheeri and it was specifically averred before the Courts below that the shop of the petitioner as disclosed in the map annexed with the application was required for passage as there was no road of Nagar Mahapalika by the side of the building and the only passage which was being used was from the side which opened upon a land in front of an other building belonging to another person. It was also contended that the scenario was such that even if some vehicle, thela etc. is sought to be brought to the door towards the side it was not possible. This need of the opposite parties no. 3 and 4 has been found to be genuine and bona fide and findings of fact have been recorded by both the Courts below. 11. As regards the comparative hardship also both the Courts below have held that no effort was made by the tenant to seek another shop on rent, therefore, relying upon various decisions of the Higher Courts a conclusion has been arrived at regarding comparative hardship being in favour of the landlord. 12. Shri Khan emphasized upon two photographs annexed by him as Annexure No. 13 to this petition. Although, this Court under Article 227 of the Constitution of India would not appreciate evidence but only because Shri Khan has insisted that the Court may see the photographs, on seeing the same, the Court is not at all persuaded with his arguments that the finding recorded by the Courts below regarding absence of appropriate passage to the landlord is in any manner perverse. The photographs itself show that there is a door towards the left of the building which is being used for ingress and egress to the premises in question. The access to the said door is from a land which does not belong to the opposite parties. There is no road on that side. From the photographs it can also not be said that any vehicle or thela as was correctly alleged by the landlord could approach the door. This is assuming as is alleged by Shri Khan that the father of the opposite party no. 3 had been carrying out some retail business in a room inside the premises near the Baithaka. It is not in dispute that the door is an entrance to the Baithaka and there is some room inside which even Shri Shishir Chandra, learned counsel for the opposite party no. 3 and 4 admits, was being used by the father of the opposite party no. 3 for some retail business, but, after his death the same was not being carried further. 13. 3 and 4 admits, was being used by the father of the opposite party no. 3 for some retail business, but, after his death the same was not being carried further. 13. As regards the contention of Shri M.A. Khan, learned Senior Advocate that one of the shops had already been released, the need shown is for a composite shop comprising of all the three existing shops other than the one shop in the tenancy of the petitioner herein. As far as the petitioner's shop is concerned, it is to be used as a passage giving access to the road, therefore, this contention is also not acceptable. 14. The contention that in all the four applications the same pleadings had been made, is also a misconception. The opposite parties no. 3 and 4 having expressed genuine and bona fide need for all the four shops the pleading in the case is that so far as the shop of the petitioner is concerned, it is required for passage to the road, whereas, the other three shops are to be consolidated for engaging in a business as mentioned in the pleadings, thus, this contention is also repelled. 15. The fact of the matter is that there are concurrent findings of fact on the question of genuine and bona fide need of the landlord as also on the question of comparative hardship which this Court is loathe to interfere in exercise of its power under Article 227 of the Constitution of India as there is no such valid ground for doing so. 16. In view of the above, no interference is called for with the impugned judgments. 17. Having said so, on a request made by Shri Khan that some more time be granted to the tenant to vacate the premises, the ends of justice would suffice, if, instead of three months, a period of six months is granted to the petitioner for vacating the premises in question. 18. It is ordered accordingly and the judgments of the Courts below are modified only to this extent. 19. Subject to the above, the petition is dismissed.