Neeyat Rout vs IVth Addl. District Judge and Others

Rakesh Tiwari, J.—Heard learned Counsel for the parties and perused the record.

This writ petition hag been filed challenging the validity and correctness of the order dated 4th December, 1999 passed by I Vth Additional District Judge, Varanasi by which the order passed by the Prescribed Authority declaring vacancy has been set aside.

The case of the landlady was that she was the owner of property bearing house No. D. 33/5 Khalispura, Varanasi; that she being old age her daughter Niyati Raut is looking after all the affairs of the applicant and managing the said property. It is further stated that the house in dispute consists of only one shop of two doors on the ground floor, 2 rooms, 1 store room, latrine Bathroom on the first floor, 3 small rooms, 1 kitchen Latrine and Bathroom on the second floor and one small room on the third floor. It is further averred that the landlady being very old and suffers from old age her daughter is residing with the applicant in the, upper story of the said house and is taking care of her and the family of the applicant consists of members: (1) Snehlata Sinha (applicant), (2) Niyati Rauth (daughter), (3) Sri Pulin Bihari Rauth (son in law), (4) Arup Kumar Rauth a/a 25 years and (5) Anup Kumar Rauth a/a 19 years. The accommodation on the upper stories is in use for residential purposes by her daughter; that in the year 1990 the opposite party No. 2 occupied the said shop on the ground floor is without getting any allotment order and refused to vacate the accommodation in question.

The Court notified the vacancy of the said shop and the applicant received notice of vacancy on 24.6.1998. It is averred that the applicant''s husband has already been expired and she has no source of income for maintaining himself; that as such the applicant has started to do the business of General Merchandise and Readimade Garments with the help of her grand-son Anup Kumar Rauth but she has no other shop or commercial accommodation in the city of Varanasi except the shop in which Respondent is an unauthorised occupant; that she has bona fide need of the shop/accommodation in possession of the Respondent for her own use and occupation.

It appears that considering the facts and circumstances, the accommodation and number of family members of the landlord the Prescribed Authority released the accommodation in dispute on release; application in Case No. 64 of 1997 u/s 16(a)(1) of U.P. Act No. 13 of 1972, by order dated 2.9.1998. Rent Revision No. 10 of1998, Vijay Kumar Gupta v. State of U.P. preferred by the Respondent was allowed quashing the order dated 2.9.1998 on the ground of jurisdiction by which the Prescribed Authority had declared vacancy. The relevant extract of the order impugned dated 4.12.1999 reads thus:

Whereas, the case of the tenant was that need of the landlady was not genuine and bona fide and that the shop is used for industrial purpose hence provisions of U.P. Act No. XIII of 1972 are not applicable.

The contention of learned Counsel for the Petitioner is that the revisional Court in the aforesaid circumstances ought to have remanded the matter for consideration to the Trial Court.

The finding of the revisional Court is that after appreciation of evidence on record, the Revisional Court has recorded a categorical finding of fact that provision of U.P. Act No. 13 of 1972 will not apply in this case as the accommodation/shop in dispute was given on rent to the Respondent for industrial purpose. The Court also found that the landlady who had set up need of shop in dispute has died during pendency of revision and as such her personal need did not exist any longer.

After hearing learned Counsel for the Petitioner and on perusal of record, it is apparent that the shop was given on rent to the Respondent for running a Printing Press i.e., for industrial purpose, hence the provision of U.P. Act No. 13 of 1972 will not apply in the present case. Therefore, the Revisional Court has rightly held that Prescribed Authority had no jurisdiction and suit is the remedy.

The need set up by landlady concerned, after her death is not remained in existence.

For all the reasons stated above, the writ petition is accordingly, dismissed. No order as to costs.