GANGA NARAIN Vs. IIND ADDITIONAL DISTRICT JUDGE

JUDGEMENT

(1.) This is a tenant's petition arising out of an application filed under Sec. 21 (1) (a) of U.P. Act 13 of 1972. It was claimed by the opposite Party that he had a godown of Tobacco situated in the different mohalla from where he was evicted, therefore, he needed the accommodation in dispute which was in occupation of the petitioner and was used as godown. The claim was contested by the petitioner and it was asserted that he being an Excise Licensee needed two go downs-one for duty paid goods and the other for non-duty paid Tobacco. It has been found by both the-authorities that the Opposite Party has been found to be bona fide. As regards hardship, the Prescribed Authority found that another accommodation in the name of petitioner's wife is being used as a Godown for Tobacce purposes. According to him the eviction of petitioner. therefore, could not result in any hardship to him. The finding has been affirmed by the appellate authority.

(2.) Learend counsed for the petitioner has assailed correctness of both the findings. According to him both the authorities committed manifest error of law in allowing the application and recording the finding that need of the landlord was bona fide without adverting to the extent of accommodation in his possession. He urged that no claim of bona fide need could be accepted unless it was found that accommodation in possession of the landlord was insufficient for the business which he wanted to carry and for which he had moved an application under Sec. 21 (1) (a). reliance is also placed on Rule 16 (2) (a) to support the submission that a tenant in occupation of commercial accommodation for a long period should not normally be disturbed and this circumstance should be taken in his favor. The submission has further been attempted to be supported by observations made in Ram Nath Vs. Distt. Judge, Varanasi 1979 A.R.C. 212 , Smt. Vimla Misra 1977 A.R.C. 14. and Haji Molyd. Yusuf Vs. IV A.D.J. 1967 A.R.C. 56. It is true that neither the Prescribed Authority nor the appellate authority have gone in detail to discuss the extent of accommodation in possession of the Opposite Party but the Prescribed Authority had got local inspection made and copy of commissioner's report has been filed as Annexure-III to the counter-affidavit. From this report it is evident that the tenant has an accommodation which is described as 51/7-B which is being used as godown of tobacco. This accommodation is in tenancy of the petitioner. The accommodation in dispute is described as 41/7-E. It has been mentioned that ten bags of tobacco-dust are lying in it, a cow is being tethered and room is being used for storing straw (Bhusa). Further, the petitioner has got accommodation of which his wife is the owner. The next part of the report deals with number of shops, which are owned by the Opposite Party. It is, therefore, not correct to say that the authorities were not aware of the extent of accommodation if there was no material before them on which they could have adjudicated the claim of the parties. After looking into the report it appears that the conclusion arrived at by both the authorities that the need of the landlord was genuine and he shall suffer greater hardship, does not appear to suffer from any error of law. The petitioner having stroge facility for tobacoo in a tenanted accommodation and having his own accommodation which is in the name of wife is not likely to suffer greater hardship than the landlord who having been evicted is in need of an accommodation which can he used as godown for Tabacco. It has been mentioned not with a view to substitute the findings of fact recorded by the two authorities or to fill-up lacuna but to demonstrate that the order cannot be quashed merely because it is not detailed.

(3.) The learned counsel vehemently argued that apart from the extent of accommodation the landlord has a number of shops available with him which could have been used as godown for tobacco or atleast it could have been given in exchange to the petitioner. Primafcie argument appears to be attractive but it is established that these shops were constructed prior to 1974 that is, when the landlord was evicted from his premises. The shops, therefore, could not be deemed to be available. Atleast no material has been brought on record that during the pendency of the application for release any shop became vacant, which could have been utilised as godown for tobacco. The learned counsel relied on Assessment list dated 1974-78 and then 1982 to show that some of the shops. It is doubtful if the assessment list could be substituted for evidence then 1982 to show that some of the shops were mentioned as vacant. From this he attempted to draw an inference that the authorities committed an error in not taking into account vacancies of the shops. It is doubtful if the assessment list could be substituted for evidence to establish that the shops were vacated after filing the application. In any case claim of the petitioner was that these shops could not have been used as godown for tobacco and therefore, to say, that petitioner should have been asked to shift his in one of the shope, could not be correct. As regards offer on behalf of the landlord for exchange of the shop, suffice is to say that in absence of any positive evidence of the shops having been vacant during pendency of the application, the offer of the petitioner could not be given any serious consideration. Moreover, if any shop had fallen vacant the tenant could have applied for its allotment as the shops are governed by U.P. Act 13 of 1971 and he would have got preference as provided in the Rules.