Court No. 7 Case : WRIT A No. 18623 of 2008 Petitioner : Sneh Kumar Goyal Respondent : Kundan Lal Gulathi Petitioner Counsel : Ratnesh Kumar Pandey Respondent Counsel : A.A.Khan Hon'ble Devendra Pratap Singh,J.
Heard learned counsel for the parties.
This petition by the landlord is directed against an appellate
order dated 11th of January 2008 by which the appeal of the
respondent tenant against release of the disputed shop has been
allowed.
The petitioner landlord filed a release application No. 3 of
1994 inter alia with the allegation that the respondent was a tenant
of the disputed shop @ Rs.25/ per month apart from house and
water tax which is situated near the main crossing of Khurja in
Bulandshahr which is a prime business location and having a
dimension of 12′ x 7′. Navneet Kumar, the son of the landlord after
several attempts was able to clear his IX class but is not good in
studies and therefore he wanted to settle his son in the disputed
shop. The release application was contested by the respondent tenant
and after contest, the release application was allowed by an
exhaustive order dated 10th of July 1997 against which the tenant
preferred an Appeal No. 20 of 1997 which has been allowed on the
basis of the subsequent events.
It appears that the wife of the petitioner landlord was the
owner and landlord of two other shops which were in possession of
two tenants viz; Jumma Khan and Dal Chand and she had moved an
application for release under Section 21 (1)(b) of U.P. Act No. 13 of
1972 on the ground that it was in a dilapidated condition and needed
demolition and reconstruction. The matter reached the Apex Court
where the shops were released on agreed condition between the
parties that after reconstruction both the tenants will be reinducted
in the two shops @ Rs.375/ per month and accordingly the appeal
was finally disposed off on 29th of October 1999. It appears that in
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pursuance of the said order, the petitioner’s wife demolished the said
shops and made new constructions and allegedly let out the two
shops to those tenants but subsequently the shop of Jumma Khan
was sold. The respondent tenant moved an amendment application
bringing on record that out of the two newly constructed shops on
the ground floor, the petitioner’s wife had not inducted Jumma
Khan, the erstwhile tenant but had sold it through a sale deed dated
5th of January 2004 in favour of Tarun s/o Gurbux Singh and Smt.
Manjit Kaur wife of Gurbux Singh in vacant condition. After the
amendments were allowed, the parties proved their respective cases
and the appellate court after affirming the evidence of need of the
son of the landlord, held that it was not bonafide as one newly
constructed shop was sold during appeal.
Learned counsel for the petitioner has urged that the court
below had erred in holding that the shops were sold in vacant
condition and has also not considered the effect of the affidavit filed
by both the erstwhile tenants.
The certified copy of the sale deed dated 5.1.2004 was brought
on record and the appellate court after relying upon a recital therein
that the possession has been transferred to the transferee, held that it
was transferred in vacant condition. The copy of the sale deed is on
record and it nowhere states that actual vacant possession was
transferred. The recital merely indicates that the constructive
possession, which the transferee herself had over it, had been
transferred. Apart from that, the appellate court did not even
consider that Jumman himself had given an affidavit before and
after the amendment in the written statement that after
reconstruction he was inducted as a tenant @ Rs.375/ per month
and after the transfer he vacated the shop in favour of the new
landlords. There is no substantive evidence to disprove it and it was
the best evidence which has been totally ignored by the court below.
Even before this Court, apart from a bald denial, there is no evidence
to disprove the affidavit and which clinches the issue in favour of the
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petitioner.
For the reasons above, this petition succeeds and is allowed
and the impugned order dated 11th of January 2008 is hereby
quashed and that of the Prescribed Authority is restored.
In the circumstances of the case, no order as to costs.
Order Date : 15.7.2010
PKG