Jameel Ahmad vs Riyaz Ahmad

Rakesh Tiwari, J.—Heard learned counsel for the parties and perused the record.

This writ petition has been filed challenging the validity and correctness of the judgment and orders dated 26.11.2008 passed by Addl. Chief Metropolitan Magistrate 4th, Kanpur Nagar/Prescribed Authority in Rent Case No. 67 of 2003 and order dated 07.09.2010 passed by Addl. District Judge, Court No. 12, Kanpur Nagar in Rent Appeal No. 04 of 2009: Jameel Ahmad vs. Riyaz Ahmad & others, appended as Annexures5 & 8 to the writ petition.

The brief facts of the case are that an application under Section 21 (1) (a) of Act No. 13 of 1972 for release of the tenanted accommodation was filed by the landlordrespondent no. 1Riyaz Ahmad. The release application was contested by the petitionertenant by filing written statement denying plaint allegations of the landlordrespondent. An Advocate Commissioner was appointed by the Prescribed Authority during pendency of release application, who submitted his report in the month of November, 2007. Thereafter, the evidences were adduced by the parties. Subsequently, on 26.11.2008, the Prescribed Authority allowed the release application of the landlordrespondent. Aggrieved by the aforesaid order dated 26.11.2008, the petitioner preferred Rent Appeal No. 04 of 2009: Jameel Ahmad vs. Riyaz Ahmad & others, which was dismissed by the Addl. District Judge, Court No. 12, Kanpur Nagar on 07.09.2010 after recording cogent reason.

The contention of learned counsel for the petitioner is that the petitioner has no alternative accommodation and plot in Vishwa Bank Colony is land hence explanation to 3rd proviso to Section 21 (1)(a) would not be attracted. Hence the contention of landlordrespondent is that the petitioner had purchased House No. A150 Vishwa Bank Colony, Pokharpur, Kanpur Nagar in the name of his family member. It is further submitted by the petitioner that the courts below have misread the written statement filed by him in which it was categorically stated that the property mentioned at Pokharpur, Kanpur Nagar is absolutely non habitable and further his two sons who are residing in Dubai have no concern with the petitioner; that both the courts below have failed to give any finding pertaining to the categorical assertion made by the petitioner that his tenanted accommodation falls partly in the premises in question and its 1/3rd part situate in the adjoining house which has separate municipal number and not owned by the respondents. It is lastly argued by the petitioner that since release application was filed on the basis of material concealment the same is not maintainable and as such the order impugned have caused gross miscarriage of justice.

Per contra, learned counsel for the respondents has submitted that in fact the petitioner had not purchased the land in Vishwa Bank Colony, Pokharpur, Kanpur Nagar, but it was a habitable residential accommodation with land appurtenant to which he has allegedly shown as in dilapidated condition in the sale deed to evade court fee/registration charges etc. hence the provision of Act No. 13 of 1972 would apply.

The findings recorded by the trial court with regard to House No. A150 Vishwa Bank Colony, Pokharpur, Kanpur Nagar is as under:

It is further submitted that the petitioner at later stage, has claimed that there is no construction over the house aforesaid but it was land, hence Act No. 13 of 1972 was not applicable.

The findings recorded by the appellate court is as under:

Learned counsel for the respondent further urged that during pendency of litigation before the court below, the petitioner has sold aforesaid accommodation in Vishwa Bank Colony, Pokharpur, Kanpur Nagar, and has purchased a flat for a sum of Rs.9,00,000/ by saledeed dated 7.12.2009 which is appended as AnnexureS.A.3.

Having heard learned counsel for the parties and on perusal of record it is apparent that the petitioner had not purchased only land at Pokharpur, but had habitable construction by sale deed dated 7.12.2009 in Pokharpur, Kanpur Nagar bearing House No. Block A; Yojna No. EWS4. If the house was not habitable and there were no construction the petitioner could not have shown that there was some constructions/ruins of earlier constructions on the plot. However, he has sold the aforesaid property and vide sale deed dated 7.12.2009 has purchased a free hold land with house no. 87 LIG Colony, BlockF in Scheme No. 39, K.D.A. Colony, Kanpur Nagar having an area of 69.05 meters (covered area 40 sq. meters) for a sum of Rs.9,50,000/. Thus, from the subsequent development, it is apparent that petitioner has now purchased a residential accommodation vide sale dated 7.12.2009.

Both the courts below have given concurrent findings of fact against the petitioner holding bonafide need and comparative hardship in favour of the respondentlandlord.

In this view of the matter and also in view of subsequent development, the Court is not inclined to interfere in the concurrent findings of fact recorded by the courts below under Article 226 of the Constitution of India.

The writ petition is, accordingly, dismissed. As a consequence, the petitioner is directed to handover the peaceful possession of the vacant house in question to the landlordrespondent within a period of fifteen days. No order as to costs.