Allahabad High CourtOm Prakash Yadav vs Bal Deo Dass Yadav on 22 April, 2011Author:Rakesh TiwariBench:Rakesh TiwariHIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. 7
 

 

 
		        Civil Misc. Writ Petition No.17033 of 2006
 
Om Prakash Yadav 						  ...........Petitioner. 
 
					Vs.
 
Bal Deo Dass Yadav 					      ..........Respondents. 
 
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Hon'ble Rakesh Tiwari, J.Heard learned counsel for the parties on C.M. Recall/Restoration Application No. 64865 of 2011.Cause shown for non appearance is sufficient.  Restoration application is allowed. The order dated 23.2.2011 dismissing the writ petition in default is recalled. The writ petition is restored to its original number.Heard learned counsel for the parties on merits of the case.This writ petition has been filed challenging the validity and correctness of the judgment and orders dated 18.3.2006, passed by 12th Additional District Judge, Court No. 13, Agra, by which, Misc. R.C. Appeal No. 97 of 2002:Om Prakash Yadav Vs. Baldeo Dass Yadav, has been rejected and the order dated 30.5.2002 by which release application  (paper no. 4-Ga) was allowed directing the petitioner-tenant to vacate the peaceful possession of the shop in dispute situated at 28/40 Chauraha, Gokulpura, Agra within a period of 30 days from the date of passing of said order.The facts of the case are that respondent-landlord filed P.A. Case No. 100 of 1997 underSection 21 (1) (a)of U.P. Urban Building (Regulation of Letting Rent And Eviction) Act, 1972 for release of shop in dispute.  The petitioner contested P.A. Case by filing written statement denying plaint allegations on the ground that property no. 28/40 is old property under the tenancy of petitioner @ Rs.10/- per month. The Prescribed Authority dismissed the application paper no. 62-C which was filed for cross-examination of applicant and his witnesses as well as for local inspection of the existing accommodation  in  dispute  and  the  said  authority  by  order  dated
 

 

 
30.5.2002 directed release of accommodation in question without providing any opportunity of cross-examination of the witnesses. Aggrieved by order dated 30.5.2002, petitioner filed Rent Control Appeal No. 97 of 2002, under Section 22 of U.P. Act No. 13 of 1972.  In the meantime, appellate Court rejected the application of the petitioner refusing inspection of the accommodation in dispute. Subsequently, the appellate Court vide its order dated 18.3.2006 rejected the Rent Control Appeal No. 97 of 2002. Aggrieved by the said order, petitioner has filed this writ petition.The impugned order has been assailed by the petitioner on the ground that petitioner is having only the shop in dispute in his tenancy for his source of livelihood, but the Prescribed Authority has arbitrarily and on erroneous consideration rejected the application of the petitioner made for local inspection with regard to availability of other suitable accommodation lying vacant with the landlord vide its order dated 7.10.2004; that lower appellate court has not taken into consideration the provisions ofSection 34and Rule 27 of Act No. 13 of 1972; that during pendency of the case, respondent-landlord had constructed several new shop and had also raised construction in building in question.The contention of learned counsel for the petitioner is that release application filed underSection 21 (1) (a)of Act No. 13 of 1972, cannot be entertained unless period of six month has expired, but in the instant case notice dated 29.5.1997 was given after filing of release application no. 100 of 1997 on 28.5.1997. It is also submitted that no finding has been given by the court below regarding comparative hardship between  petitioner-tenant and the respondent-landlord. It is argued that consideration of alternative accommodation is immaterial for allowing release application in respect of commercial shop.Per contra, learned counsel for the respondent has submitted that after giving six months' notice, he had filed release application on 4.12.1997 which was allowed by the Prescribed Authority on 30.5.2002 holding the need of respondent-landlord to be greater than petitioner-tenant; that petitioner had never taken any ground about the validity of notice; that although the petitioner argued that respondent-landlord has 06 shops, but it is admitted by him that in fact it is  only one shop in which 06 shutters have been fixed and that the  appellate court has held that house no. 28/298 which belong to the respondent-landlord, is residential accommodation and not commercial as such it cannot be said to be an alternate accommodation available to the landlord for business purpose and is not an accommodation suitable to him for this purpose.It is also argued that petitioner is also owner of Shop No. 28/501, 28/500 and 28/499A situated in the same locality which is evident from the Municipal Assessment; that son of the petitioner is residing with him.  So far as comparative hardship is concerned, respondent has submitted that since the petitioner has already 03 shops in his possession which is being used by his son and other shops are vacant which can be used by him, the question of suffering great hardship by the petitioner than the respondent does not arise in this case. Lastly, learned counsel for the respondent has submitted that the petitioner filed an application for cross-examination before delivery of judgment malafide only with intention to delay the proceedings which has subsequently been rejected. Thereafter during pendency of appeal, the tenant also filed application for appointment of Commissioner and another application underOrder 41 Rule 27 C.P.C. for filing additional evidence on record which were rejected by order dated 12.05.2005.Both the Courts below have recorded concurrent finding of facts against the petitioner after considering entire evidence on record by allowing release application filed by the respondent-landlord holding that respondent-landlord was in need of the shop in question to open his factory and sales office.  It was further held by the Prescribed Authority that if release of the accommodation is not allowed, the landlord-respondent will face greater hardship and he will not be able to open his factory and sales office in his own property which he requires for his business, whereas the tenant will not suffer any hardship as admittedly he has his own two storied shop no. 26/228, situated at Mohalla-Balka Basti, Gokulpura.The appellate Court also has rejected Misc. R.C. Appeal No. 97 of 2002:Om Prakash Yadav Vs. Baldeo Dass Yadav, affirming the reasons given by the Prescribed Authority while allowing release application of the respondent-landlord.  The Court below have arrived at the conclusion that tenant has his own two storied shop, plea of bonafide need of the landlord and comparative hardship would pale into insignificance.  These pleas are not available to the tenant in the circumstances and even otherwise the court below have recorded concurrent finding of facts on these issues, against the tenant-petitioner.For all the reasons stated above, I do not find any illegality or infirmity in the order impugned.The writ petition is, accordingly, dismissed. No order as to costs.Dated: 22.04.2011
 
RCT/-