Nandani Devi (Smt.) Vs. Ist Additional District Judge and ors.

Nandani Devi (Smt.) vs ist Additional District Judge and ors.

Disposition Petition allowed Court Allahabad Decided Sep 02, 2004

~3 min read

https://sooperkanoon.com/case/491503

For advocates & juniors · 7-day free trial

Brief this judgment before chambers

Stop skimming 50 pages - get an 18-section AI Brief on this case, ask scoped follow-ups, and find related precedents with Semantic Search. Full trial, no card required.

18-section brief - facts, issues, ratio, relief
Ask this case - answers cite the judgment
Semantic search - find precedents by meaning
Research drawer - sections, cites, related cases

Citation: sooperkanoon.com/491503
Court: Allahabad High Court
Judge: S.U. Khan, J.
Decided On: Sep 02, 2004
Case Number: C.M.W.P. No. 3110 of 1984
Subject: Tenancy
Disposition: Petition allowed

Case Summary

AI-generated summary - not the official court judgment text.

- LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land acquisition is not purely ministerial act to be performed by executive No...

Key legal issue: Tenancy
Outcome / disposition: Petition allowed
Acts & sections: Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 - Sections 21 and 22

Parties & Advocates

Appellant / Petitioner

Nandani Devi (Smt.)

Respondent

ist Additional District Judge and ors.

Legal References

Acts: Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 - Sections 21 and 22
Cases Referred: (vide Badri Narain Chunnilal Bhutada v. Govindram
Reported In: 2005(1)ARC58

Excerpt

.....the provisions of land acquisition act, 1894. it would, however, be open to the court in exercise of that power to invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time frame. however, the power of the court under article 226 must necessarily stop at that. thereafter, if the decision taken by the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the court to quash the decision and to require reconsideration. but no direction in the nature of mandamus whether interim or final can be issued by the court under article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose. section 4; compulsory acquisition of land powers of state government held, renewal of lease in favour of petitioners would not take away power of state government of compulsory acquisition of land. renewal of lease would at best be taken into consideration for determining quantum of compensation. .....the appellate court mainly allowed the appeal on the ground that swarnkari business was family business of landlady's husband hence it should be presumed that her sons jugal kishore and mangesh kumar might be intending to take the orders and manufacture the ornaments themselves. the appellate court also held that landlady did not show as to how many shops were owned by her husband. if the tenants come up with the case that landlord has got other alternative accommodation available then the burden to prove the same lies upon them. appellate court also observed that landlady did not state as to whether her sons were separate in business and living or not. lower appellate court further held that 'these young sons jugal kishore and mangesh kumar may continue to work with their father and assist their father in this sarrafa business'. this view is quite contrary to the view expressed in this regard by supreme court in the following authorities:1. akhilesh kumar and ors. v. mustaquim and ors., air 2003 sc 532: 2003 scfbrc 137.2. sushila v. iind additional district judge, banda and ors., 2003 scfbrc 1094. the supreme court has held that every adult member of landlord's family have got a right to start independent business and no landlord or any of his family members, can be compelled to participate in the family business.5. lower appellate court also took into consideration that landlady or her husband had purchased a plot and constructed a house thereupon. residential accommodation cannot be taken into consideration to deny the need for commercial activity.6. regarding comparative hardship revisional court held that 'his (tenants) wife owns and possess a residential house in the lane. of course a room on ground floor can be separated for the floor mill, but it will carry a risk for the livelihood of jawahar lal and his family.'7. by virtue of above it is quite clear that tenants have got alternative accommodation, which is sufficient to decide comparative hardship.....

Full Judgment

S.U. Khan, J.

1. Heard learned Counsel for the parties.

This is landlord's writ petition arising out of eviction/release proceedings by him against tenants respondents on the ground of bona fide need under Section 21 of U.P. Act No. 13 of 1972.

2. Property in dispute is a shop. Release application was registered as P.A. Case No. 36 of 1978 on the file of prescribed authority/1st Additional Munsif, Varanasi, The landlady petitioner pleaded that she required the shop in dispute for establishing his sons in business. Prescribed authority by order dated 12.4.1982 allowed the release application, against which tenants respondents filed appeal under Section 22 of the Act being Rent Control Appeal No. 239 of 1982. 1st Additional District Judge, Varanasi through judgment and order dated 30.11.1983 allowed the appeal, hence, this writ petition by landlady.

3. Landlady had specifically stated that her sons intend to start the business of Swarnkari. The Appellate Court mainly allowed the appeal on the ground that Swarnkari business was family business of landlady's husband hence it should be presumed that her sons Jugal Kishore and Mangesh Kumar might be intending to take the orders and manufacture the ornaments themselves. The Appellate Court also held that landlady did not show as to how many shops were owned by her husband. If the tenants come up with the case that landlord has got other alternative accommodation available then the burden to prove the same lies upon them. Appellate Court also observed that landlady did not state as to whether her sons were separate in business and living or not. Lower Appellate Court further held that 'These young sons Jugal Kishore and Mangesh Kumar may continue to work with their father and assist their father in this sarrafa business'. This view is quite contrary to the view expressed in this regard by Supreme Court in the following authorities:

1. Akhilesh Kumar and Ors. v. Mustaquim and Ors., AIR 2003 SC 532: 2003 SCFBRC 137.

2. Sushila v. IInd Additional District Judge, Banda and Ors., 2003 SCFBRC 109

4. The Supreme Court has held that every adult member of landlord's family have got a right to start independent business and no landlord or any of his family members, can be compelled to participate in the family business.

5. Lower Appellate Court also took into consideration that landlady or her husband had purchased a plot and constructed a house thereupon. Residential accommodation cannot be taken into consideration to deny the need for commercial activity.

6. Regarding comparative hardship Revisional Court held that 'his (tenants) wife owns and possess a residential house in the lane. Of course a room on ground floor can be separated for the floor mill, but it will carry a risk for the livelihood of Jawahar Lal and his family.'

7. By virtue of above it is quite clear that tenants have got alternative accommodation, which is sufficient to decide comparative hardship against them. Tenants also did not show as to what efforts they made to search alternative accommodation after filing of the release application. This was also important factor for determining comparative hardship (vide Badri Narain Chunnilal Bhutada v. Govindram, Ram Gopal Mundada, AIR 2003 SC 2713).

8. Accordingly, writ petition is allowed. Judgment and order passed by Lower Appellate Court dated 30.11.1983 is set aside and order passed by prescribed authority dated 12.4.1982 is restored.

9. Tenants respondents are granted six months time to vacate provided that within one month from today they file an undertaking before the prescribed authority to the effect that on or before 2.3.2005 they will willingly vacate and handover possession of the shop in dispute to the landlady.

Same Court & Year Allahabad · 2004 Same Parties Nandani Devi (Smt.) vs ist Additional District Judge and ors. Same Subject Tenancy Same Judge S.U. Khan, J. Acts & Sections Uttar Pradesh Urban Buildings (Regulation of Letting, Rent an...

Tenancy