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Smt. Babban Kunwar vs The Special Judge, S.C./S.T. Act ...

High Court Of Judicature at Allahabad|28 February, 2008


1. Heard learned Counsel for the parties.
2. This is landlady's writ petition arising out of eviction/release proceedings initiated by her against tenant respondent No. 2, Keshav Babu Dixit on the ground of bona fide need under Section 21 of U.P. Urban Buildings (Regulation of Letting, Rent & Eviction) Act, 1972 in the form of Rent Case No. 19 of 1999. Property in dispute is a shop, which was sought to be released for the need of Surendera Bahadur son of landlady. Release application was allowed on 03.04.2001 by Prescribed Authority/Additional Civil Judge (Senior Division), Kanpur Nagar. Against the said judgment and order, tenant respondent filed Rent Appeal No. 37 of 2001. A.D.J./Special Judge, SC/ST Act, Kanpur Nagar allowed the appeal on 19.01.2002, set aside the judgment and order passed by the Prescribed Authority and rejected the release application of the landlady, hence this writ petition.
3. During pendency of this writ petition, Sri Surendra Bahadur son of the landlady for whose need release application was filed, died. An amendment application was filed, which has been allowed. Through the said application, it has been stated that the business proposed to be carried out by Surendra Bahadur, would now be done by his wife and son.
4. Under Section 21(7) of the Act, after the death of the landlord, his legal representatives are entitled to prosecute release application under Section 21 of the Act on the basis of their own need and in substitution of the need of the deceased. Same principle will apply in case of death of a family member of the landlord, for whose need release application was filed.
5. When release application was filed, Surendera Bahadur was doing business from an adjoining shop of the landlady, which is on the back side. On 25.09.2007, learned Counsel for the landlady, petitioner stated that the landlady petitioner was ready to offer the shop which was in occupation of Surendra Bahadur and which is shown in the sketch map contained in Paragraph-3 of the supplementary affidavit filed by the tenant respondent himself, to the tenant respondent in exchange of the shop in dispute.
6. Rent of the shop in dispute is Rs. 250/- per month.
7. Appellate court mainly allowed the appeal on the ground that some shops became available to the landlady after the alleged need for Surendera Bahadur arose still none of the said shops was utilized by Sri Surendra Bahadur. It has also been held that some of the shops were got released under Section 21 of the Act but they were not utilized for the purpose for which they were got released. One specific circumstance, given by the lower appellate court, is of a shop, which was got released for establishing the Chamber of the other son of the landlady Sri Jitendra Bahadur Singh, advocate. However, afterwards, the said shop was let out to another tenant and Chamber of Sri Jitendra Bahadur, advocate was not established therein. Paragraph-13 of the writ petition is quoted below:
That is was clearly denied that the alleged disputed shop was forcibly taken by the petitioner or that the case was pending before the Hon'ble High Court. The space beneath the stair case was got released under Section 21(1)(a) of Act No. 13 of 1972 for the office of her elder son Jitendra Bahadur Singh, who was already enrolled an Advocate. However, its size was very small and not fit for an Advocate Office, therefore, on 1-4-1998 it was let out to Sri Shashi Kant where he ran P.C.O. Business. Jitendra Bahdur had shifted his Office on the first floor in a room. The shop alleged to be in the tenancy of Rajiv Tripathi was wrong. It was in the possession of the husband of the petitioner since 1986.
8. In the aforesaid paragraph, it has clearly been admitted that the shop which was got released for Jitendra Bahadur Singh for establishing his Chamber was not used as such. The excuse of smallness is utterly untenable. If the said shop was not suitable to be used as his Chamber of an advocate, then the release application for the said need should not have been filed.
9. Tenant is a teacher in a school and from the shop in dispute, his wife runs a retail business. The tenant respondent No. 2 asserted that he was not the tenant but his wife was the tenant of the shop in dispute. Both the courts below held that respondent No. 2 was the tenant and not his wife.
10. In view of the above facts, it cannot be said that landlady has fully proved his bona fide need for establishing her son and after his death, his widow and son. The shops of the landlady including the shop in dispute have been shown by the tenant himself. In the supplementary affidavit dated 21.05.2004 in Paragraph-3, a rough sketch map of the shops has been given. In the said map, five shops are shown towards west. Fourth shop on the western side counting from south is in tenancy occupation of Respondent No. 2. Towards north-east of the shop in dispute is the shop in which Surendra Bahadur was carrying on business and after his death, his widow and son are carrying on business. The said shop is offered by the landlady in exchange. At this juncture, Rule 16(2)(C) of the Rules framed under the Act is quoted below:
16(2)(c) the greater the existing business of the landlords own, apart from the business proposed to be set up in the leased premises, the less the justification for allowing the application, and even if an application is allowed in such a case, the prescribed authority may on the application of the tenant impose the condition where the landlord has available with him other accommodation (whether subject to the Act or not) which is not suitable for his own proposed business but may serve the purpose of the tenant, that the landlord shall let out that accommodation to the tenant on a fair rent to be fixed by the prescribed authority.
11. Supreme Court in Chandrika Prasad v. Umesh Kumar Verma has held that availability of less suitable accommodation is no ground to reject release application on the ground of bona fide need for a more suitable accommodation.
12. In view of the facts that landlady is offering another accommodation to the tenant, respondent No. 2 is a teacher and on the principle underlying the aforesaid Rule 16(2)(c) and aforesaid authority of C. Prasad (supra), this release application deserves to be allowed in spite of the fact that landlady did not utilize the other shops, which were got released by her under Section 21 of the Act.
13. Accordingly, writ petition is allowed. Judgment and order passed by the appellate court is set aside. Judgment and order passed by the prescribed authority releasing the shop in dispute in favour of the landlady is restored subject to modification that the landlady shall simultaneously handover the possession of the aforesaid offered shop to the tenant (in which Surendra Bahadur was carrying on business). The exchange shall take place within three months. If parties are unable to mutually exchange the shops, then application under Section 23 of the Act may be filed by the landlady before the prescribed authority on which exchange shall be effected promptly by Prescribed Authority.
14. Since April, 2008, the tenant shall pay the rent to the landlady @ Rs. 1500/- per month. This rent is being fixed in view of the fact that existing rent of Rs. 250/- per month for a shop in Kanpur City, which is most expensive City of the Uttar Pradesh, is almost no rent. Even rent of Rs. 1500/- per month will be hardly 1/4th or 1/3rd of the current rent, hence it is quite fair rent and it is to be fixed in accordance with the above Rule 16(2)(c).
15. Writ petition is allowed accordingly.
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Smt. Babban Kunwar vs The Special Judge, S.C./S.T. Act ...


High Court Of Judicature at Allahabad

28 February, 2008
  • S Khan