Sumit Narayan vs Usha Devi

Shishir Kumar, J.—Heard learned Counsel for petitioner.

This writ petition has been filed for quashing the order dated 29.1.2008 passed by prescribed authority and order dated 9.10.2009 passed by Upper District Judge, Etawah.

This is a tenant petition filed against an order passed by authorities below by which the prescribed authority on an application made by respondent-landlord, has allowed the application u/s 21(1)(a) of the Act No. 13 of 1972 holding therein that need of landlady is genuine and bonafide. Appeal filed by petitioner has been dismissed confirming the order passed by the prescribed authority.

It appears that respondent being landlady has filed an application on the ground that petitioner is a tenant of the shop in question and is paying Rs. 1800/- as rent and respondent requires the said property in dispute for some commercial purposes as well as residential purposes as she has no source of livelihood. Further averment has been made that she is having an unmarried daughter to maintain. Written statement was filed denying the allegations made in the plaint and it has been stated that rent is Rs. 1500/- per month. Further, it has been stated that in the application u/s 21(1)(a) of the Act nothing has been disclosed that what is the purpose for getting release of the said accommodation. The prescribed authority after considering the case of the parties has recorded a finding that need of the landlady is genuine and bonafide and comparative hardship is also in favour of respondent. The application was allowed vide judgment and order dated 29.1.2008. Appeal filed by petitioner has also been dismissed vide its judgment and order dated 9.10.2009. Hence, the present writ petition.

Sri Rajesh Gupta, appearing for petitioner has submitted that from perusal of the application u/s 21(1)(a) of the Act, it does not disclose the reasons and requirement that for what purpose she wants to get the shop in question released in her favour. The purpose for which she wants to get releaseof the said accommodation has to be mentioned in the application. If it has not been disclosed, the application cannot be allowed. Further, as regards the finding recorded having another shop in the locality of Azad Nagar, has also not been established as it is in the name of his son and he is paying the rent and living separately and doing business. In such situation, learned Counsel for petitioner submits that release application ought to have been dismissed instead of allowing the same. Various documents on behalf of petitioner has also not been considered. Further relying upon a judgment of this Court reported in 2006 (UP) RCC 769 Nand Kishore Awasthi v. Additional District Judge, Kanpur Nagar and Ors. Learned Counsel for petitioner submits that in view of provision of Rule 16(1)(d), release of part of the accommodation, seeing the accommodation which is in possession of petitioner could have been considered but the same has not been taken into consideration and the appeal filed by petitioner has also been dismissed without considering the claim of petitioner that, in case, the part of the accommodation is released in favour of landlady-respondent, that will satisfy the need of petitioner as well as respondent.

I have considered the submissions made on behalf of petitioner and have perused the record. In the application for release, it has been specifically averred that she has got no source of livelihood having an unmarried daughter and in case, shop in question is released in her favour she will do some business and maintain the livelihood. As regards, selling out the property by respondent, the Court has not believed because no documentary evidence was filed, only an affidavit of one Santosh Kumar Verma was filed in support thereof by petitioner. As regards, having another shop at Azad Nagar, it has been admitted by petitioner that there is a shop but it has been stated that the said shop is in possession of the son of petitioner and he is the tenant of the said shop doing separate business. Contention raised by petitioner regarding considering the part of the accommodation, in my opinion, taking into circumstances the facts of the present case, it is a property of a widow having no male member of the family, the prescribed authority as well as the Appellate Authority has taken into consideration the fact that if part of the accommodation is released, in that circumstances, whether it will be feasible that petitioner can do business in the same premises. It appears that taking into this facts and circumstances, the Court has not considered the release of part of the accommodation as required under Rule 16(1)(d) of the Rules.

In view of aforesaid fact, I find no merit in the writ petition. The findings recorded by the court below is a finding of fact, needs no interference.

The writ petition is hereby dismissed without imposing any cost.

At the last, learned Counsel for petitioner submits that some reasonable time may be granted to vacate the said premises. Six months time is granted on a condition that petitioner will submit an undertaking before the prescribed authority clearly stating therein that he will vacate the said premises within a period of six months from today and will not induct any third person in the said premises and will pay rent for this period then in that case after due satisfaction, the prescribed authority will grant six months time to vacate the said premises.