Shaukat Ali vs Vth Addition District Judge and Another

S.U. Khan, J.—Heard learned Counsel for the petitioner as well as learned Counsel for the landlords respondents who appeared through caveat.

This is tenant''s writ petition arising out of eviction/release proceedings initiated by landlord respondent No. 2 Smt. Nafisa Begum on the ground of bona fide need u/s 21 of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 in the form of Rent Case No. 29 of 2002. Prescribed Authority/A.C.J. (J.D.) Court No. 1, Kanpur Nagar through judgment and order dated 5.3.2005 dismissed the release application. Against the said judgment and order landlady respondent No. 2 filed Rent Appeal No. 27 of 2005. A.D.J. Court No. 5 Kanpur Nagar through judgment and order dated 21.5.2008 allowed the appeal, set aside the order passed by the Prescribed Authority and allowed the release application of the landlord. This writ petition is directed against the aforesaid judgment/order of the appellate court.

Property in dispute is a shop having two portions/rooms/Khans one in the front and the other at the back. Rate of rent is Rs. 550 per month. Landlady stated that she had following sons:

Mohd. Iqbal (32 years)

Mohd. Shahid (30 years)

Mohd. Zakir (26 years)

Mohd. Mehfooz (24 years)

Mohd. Mehraz (22 years)

Mohd. Shakir (20 years)

Mohd. Mahmood (16 years)

Mohd. Shahnawaz (14 years)

It was further stated that eldest son Mohd. Iqbal was running a P.C.O. in a shop near the shop in dispute and he (Mohd. Iqbal) was also Secretary of a fair price shop run by a cooperative society in another area of same city Kanpur.

It was further stated that apart from Mohd. Iqbal all other sons as well as husband of the landlady were unemployed and entire family was dependent upon the income of Mohd. Iqbal and she was unable to marry off her other sons as they were not earning. Landlady alleged that she wanted to settle her three sons in business in the shop in dispute, i.e., Shahtd, Nasir and Mohd. Zakir. It was also stated that the fair price shop of the cooperative society was situate in a narrow land of about four feet. Landlady also asserted that tenant was doing business from site No. 1 Renue Bazar, Kanpur Nagar and possessed other commercial accommodation also. Tenant pleaded that landlady possessed other building.

Prescribed Authority had held that even though the three sons of landlady for whose need shop was to be released were not having any shop still they had become major in the year 1993 when her husband constructed eight shops in the property No. 40/41. However, none of the aforesaid sons was settled in any of those shops and the shops were let out to other tenants.

Lower appellate court held that it was correct that husband of the landlady in another case, i.e. Rent Case No. 50 of 1986 had filed an affidavit in the year 1993 stating therein that he had constructed eight shops in the property bearing No. 44/41 (or 40/41) Chobey Gola Bakar Mandi, Kanpur Nagar after getting the plan sanctioned, however, in the same affidavit husband of the landlady had asserted that the ages of his three sons Mohd. Sahid, Mohd. Nasir and Mohd. Zakir were 21, 19 and 17 years in the year 1993. There is no such requirement that the moment a person crosses the age of 18 years, he must start doing business. The said shops were constructed and let out in the year 1993, i.e., nine years before filing of the release application giving rise to the instant writ petition. Tenant could not point out that these three sons of the landlady were doing any business or service. Normally at the age of 22-24 years a person starts doing business or joins a service. Lower appellate court rightly held that as at that time the ages of these three persons were in between 17 to 21 years hence they were not mature enough to do business independently.

In view of the fact that Prescribed Authority itself found that the three sons of the landlady or for that matter none of the sons of landlady except Iqbal neither had any business nor were employed anywhere, need was more than proved. The fact of letting out eight shops nine years before filing of the release application was immaterial for two reasons. Firstly, it was quite distant in time and secondly at that time the children of the landlady were of tender age even though two sons had just become major. Mohd. Sahid was married during pendency of appeal. Lower appellate court placed reliance upon Sushila Vs. IInd Addl. District Judge, Banda and Others, wherein it has been held that every adult member of landlady''s family is erjtitled to separate business. The said judgment has been followed in Rishi Kumar Govil Vs. Maqsoodan and Others,

Accordingly, I do not find least error in the finding of the appellate court that need was quite bona fide.

In respect of the comparative hardship lower appellate court held that it was fully proved on the basis of certified copy of the Municipal assessment that tenant owned property No. 90/260A Hiraman Purwa, Kanpur Nagar, where there were available five vacant shops in which he could easily start his business. Accordingly, in my opinion finding of comparative hardship has also rightly been recorded in favour of -the landlord by the lower appellate court.

I, therefore, do not find least error in the impugned judgment and order by the lower appellate court.

Writ petition is therefore dismissed.

Tenant-petitioner is granted six months time to vacate provided that:

Within one month from today petitioner tenant files an undertaking before the Prescribed Authority to the effect that on or before the expiry of aforesaid period of six months he will willingly vacate and handover possession of the property in dispute to the landlord-respondent.

For this period of six months, which has been granted to the tenant petitioner to vacate, he is required to pay Rs. 12,000 (at the rate of Rs. 2,000 per month) as rent/damages for use and occupation. This amount shall also be deposited within one month before the Prescribed Authority and shall immediately be paid to the landlord-respondent.

In case of default in compliance of any of these conditions tenant-petitioner shall be evicted through, process of Court after one montn.

It is further directed that in case undertaking is not filed or Rs. 12,000 are not deposited within one month then tenant-petitioner shall be liable to pay damages at the rate of Rs. 3,000 per month since after one month till the date of actual vacation.

Similarly, if after filing the aforesaid undertaking and depositing Rs. 12,000 the accommodation in dispute is not vacated on the expiry of six months then damages for use and occupation shall be payable at the rate of Rs. 3,000 per month since after six months till actual vacation.

It is needless to add that this direction is in addition to the right of the landlord to file contempt petition for violation of undertaking and execution application u/s 23 of the Act.