DEEP CHAND Vs. IIIRD ADDITIONAL DISTRICT JUDGE DEHRADUN

JUDGEMENT

(1.) This writ peti tion is directed against the order of the prescribed authority dated 22-7-1995 al lowing release application filed by landlord-Respondent No. 3 and the order of appellate authority dated 18-2- 2000 dis missing the appeal against the aforesaid order. 2, Respondent No. 3 is the landlord of shop No. 344, Dakra Bazar, Dehradun of which the petitioner is a tenant. Respon dent No. 3 had purchased this shop by a registered sale-deed on 24-11-1987 from its erstwhile owner of the properly. After expiry of three years from the date of pur chase of the shop in question, Respondent -No. 3 filed an application on 3-12-1990 under Section 21 (l) (a) of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, in short the Act for the release of the disputed shop with the allegations that he has no shop to carry on his business and, therefore, he required the shop for the same. This application was contested by the petitioner denying the allegations of the petitioner that he had no accommodation to carry on the business. It was stated that he was running business of parchun in the name of M/s. Vishnu Kumar and Vijai Kumar in shop No. 344 Dakra Bazar, Dehradun, and his brothers Ram Prasad and Shyam Sunder were carrying on the business in adjoining shop of 343, Dakra Bazar, Dehradun. The prescribed authority recorded a finding that Respon dent No. 2 is not carrying on any business in the name of M/s. Vishnu Kumar and Vijai Kumar. In fact, in the said shop Ram Prasad was carrying on the business. It was found that the need of the Respondent No. 3 is bona fide and genuine and if his ap plication is rejected, he would suffer a greater hardship. The application was al lowed on 22-7-1995. The petitioner preferred an appeal and the appeal has been dismissed by Respondent No. 1 on 18-2-2000. These orders have been chal lenged in the present writ petition. 3. I have heard Sri Rajesh Tandon, learned Counsel for the petitioner and Sri K. K. Arora, learned Counsel for the respondent. 4. Learned Counsel for the petitioner assailed the findings by the authorities below that the Respondent No. 3 is not carrying on any business in shop No. 344, Dakra Bazar, Dehradun. This property belonged to Prabhati Lai. He died leaving behind 5 sons, namely, Vishnu Kumar, Vijai Kumar, Ram Prasad, Shyam Sunder and Kailash Chand. Respondent No. 3 contended that Ram Prasad, his brother was carrying on business in the name of Vishnu Kumar and Vijai Kumar. He is the proprietor of the said shop and he is not carrying on any business in the said shop, nor he is a partner in the business run by Ram Prasad in the name of M/s. Vishnu Kumar and vijai Kumar. This business is registered under the provisions of Trade Tax Act. Ram Prasad has been shown as its proprietor. Respondent No. 3 filed documentary evidence to prove this fact. There was no documentary evidence to establish that Respondent No. 3 had any interest in the said property. Both the authorities have recorded a concurrent finding after considering material evidence on record, that Respondent No. 3 is not carrying on any business in the trade name of M/s. Vishnu Kumar and in fact the business is run by his brother, Ram Prasad who is running the business in the said trade name. This finding is based on assess ment of the evidence on record and I do not find any legal infirmity in this finding. 5. It is next contended by learned Counsel for the respondent that Shop No. 343, Dakra Bazar, Dehradun, also belongs to Respondent No. 1. This property is a joint family property. It was not the case of the petitioner that Respondent No. 3 was carrying on any business in the said premises. The petitioner had filed an af fidavit before the prescribed authority, a copy of which has been annexed as Annexure 3 to this writ petition. In paragraph 28 of this affidavit, he himself has stated that Ram Prasad and Shyam Sunder were carrying on business in the shop No. 343 Dakra Bazar, Dehradun. It was not his case that the petitioner was carrying on any business in shop No. 343, Dakra Bazar Dehradun. Respondent No. 3 had filed an affidavit, a copy of which has been annexed as Annexure 1 to the supplementary af fidavit and in paragraph 28 of the said affidavit he categorically stated that he is not carrying on any business. The learned Counsel for the respondent contended that both the authorities below confused the matter as in fact Ram Prasad was carry ing on his business in shop No. 343, Dakra Bazar, Dehradun, but it was taken of 344, Dakra Bazar. This contention is not cor rect. Both the authorities below have con currently considered the version of the panics in terms of shop No. 344, Dakra Bazar, Dehradun. It was found that, for fact Ram Prasad was carrying on his busi ness in terms of shop No. 344, Dakra Bazar, Dehradun. There are five brothers of Respondent No. 3. The petitioner has purchased the disputed shop in the year 1987 and it is found that he wants to carry on his business and there is no other shop vacant which is available to him to carry on his business. His need has been found to be bona fide and genuine. I do not find that there is any legal infirmity in this finding. 6. It is next contended that in the year 1997 the wife of Respondent No. 3 and one of his brothers had purchased an open piece of land at Garhi Cantt, Dehradun. The petitioner filed an application for making local inspection of the said land with the allegations that they are going to raise a commercial complex in the said land. It was denied by the. Respondent No. 3. It was stated that it was a residential plot and no commercial complex was con structed on the said land. The application filed by the petitioner for making local inspection was rejected. Learned Counsel for the petitioner urged that the authorties below acted illegally in rejecting the said application. It was not the case of the petitioner that any constructions had been made on the said plot. His contention was that the constructions was being raised. He never filed photographs showing that any construction was existing on the said plot. In absence of any construction of shop, it could not have been said that Respondent No. 3 is in possession of any other vacant shop 'where he can carry on his business. The application for local inspection, on the facts and circumstances of the case, was rightly rejected. 7. The last submission of the learned Counsel for the petitioner is that the shop is a big one and only a portion of it should have been released in favour of Respon dent No. 3. The petitioner never took up the plea either before the prescribed authority or before the appellate authority. In this petition, he has filed a supplementary affidavit annexing there with a map showing the position of the shop and its area, a copy of which has been filed as Annexure SA-3 to the supplemen tary affidavit. This map does not indicate that there are roads on both sides of the shop and looking to the dimensions the map is also not correct. Looking to its location and absence of road on both the sides the partition of the said shop could not be done. 8. I do not find any merit in the writ petition. It is accordingly dismissed. 9. In the end, the learned Counsel for the petitioner prayed that some time may be granted to the petitioner to vacate the disputed shop. Considering the facts and circumstances of the case the petitioner is granted six months time to vacate the dis puted shop, provided he gives an under taking on affidavit before the prescribed authority within two weeks that he would vacate the disputed shop within the time granted by this Court and would hand over peaceful possession to the landlord- Respondent No. 3. Certified copy of this order may be given to the learned Counsel for the par ties on usual charges within 3 days. Petition dismissed .