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Zamir Ahmad Khan And Ors. vs Addl. District Judge, Court No. 5 ...

High Court Of Judicature at Allahabad|30 August, 2006


ORDER Rakesh Tiwari, J.
1. Heard counsel for the parties.
2. Landlords had filed an application for release of the shop in dispute. Both the courts below have recorded a finding of fact that the need of the landlords is genuine and bona fide. Though the prescribed authority has also gone into the question of comparative hardship, its finding on this issue, has been reversed by the appellate court on the ground that during the pendency of the appeal, one shop of the landlords became vacant, as such, need of the landlord stood extinguished.
3. The appellate court failed to take into consideration the fact that the tenant has his own shop which is hardly 100 metres away from the shop, in dispute where he has established his son in business. The application of the petitioner was moved under Section 21(1)(a) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as 'the Act'). Once the tenant acquired an alternative accommodation in vacant possession and established his son in business, question of bona fide need and comparative hardship would not be relevant on the analogy of Explanation (1) to Section 21(1)(a) of the Act. It was not open for the appellate authority in the circumstances to take into consideration the question of comparative hardship due to factum of possession of one shop by the landlords in vacant position during pendency of suit proceedings.
4. For the reasons stated above, the writ petition is allowed. Judgment and order dated 24.7.2001 passed by the respondent No. 1 (Annexure-7 to the writ petition) is quashed. The respondent will vacate the shop, in dispute, within a month from today. In case, the shop is not vacated by the respondent within the stipulated period of one month from today, the petitioner-landlord will be at liberty to evict him with the aid of local Pplice, force. No order as to costs.
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Zamir Ahmad Khan And Ors. vs Addl. District Judge, Court No. 5 ...


High Court Of Judicature at Allahabad

30 August, 2006
  • R Tiwari