PRITAM KAUR W/O TIRATH SINGH Vs. KANWAL JEET SINGH @ RANA S/O RANA PRAKASH SINGH & ORS
LAWS(UTN)-2013-11-97
HIGH COURT OF UTTARAKHAND
Decided on November 25,2013

Pritam Kaur W/O Tirath Singh Appellant
VERSUS
Kanwal Jeet Singh @ Rana S/O Rana Prakash Singh And Ors Respondents

JUDGEMENT

- (1.) By means of this writ petition, the petitioner has sought a writ in the nature of certiorari to quash the impugned judgment and order dated 27.7.2000 passed by the learned Second Additional District Judge, Dehradun and the order dated 6.12.1997 passed by the Prescribed Authority/Ist Additional Civil Judge (Senior Division) Dehradun (Annexure 10 and 11 to the writ petition), whereby the release application of the petitioner-landlady has been dismissed.
(2.) Brief facts of the case, giving rise to this writ petition, are that the petitioner is the owner and landlady of shop no.287 Tyagi Market Ram Nagar Dehradun. The said shop was given on rent twenty years ago to Sri Rana Prakash Singh on a monthly rent of Rs.300/-. At the time when the shop was let out, son of the landlady Amrit Pal Singh was minor and her husband was in service in Indian Military Academy (I.M.A.). By passage of time, the husband of the petitioner retired from service in the year 1986. He started the business of electrical goods in one of the shop available to the petitioner. In due course of time, son of the landlady/petitioner became major and got married. He further acquired qualification of Electronics Items and in order to earn his livelihood he has to be established in a separate business. The tenant Dr. Rana Prakash Singh was doing his medical practice in the tenanted shop and his all sons are employed except Kanwal Jeet Singh who is an advocate. The landlady/petitioner filed an application for release of the shop no.287 in possession of tenant Dr. Rana Prakash Singh on the ground of her bonafide and genuine need to settle her son Amrit Pal Singh in his independent business. In support of the release application, the landlady/petitioner filed her own affidavit supporting the release application. The release application was contested by the tenant by filing written statement. The petitioner/landlady filed her reply to the written statement of the tenant and averred that her need is genuine and bonafide and her son Amrit Pal Singh is not running any shop and sitting idle. It was further stated that tenant Kanwal Jeet Singh is keeping the shop closed and is unauthorizedly occupying it. The tenant Dr. Rana Prakash Singh has illegally transferred the possession to his son and he is not doing practice in the disputed shop. It is pleaded in the writ petition that learned Prescribed Authority appointed an Advocate Commissioner who inspected the disputed shop and found that the shop is measuring about 9Ft. x 28 Ft. and was very dirty which shows that the same is not in use. No medicines or register etc. were found in the shop in dispute. During the pendency of release application, the tenant Dr. Rana Prakash Singh died. His legal heirs were brought on record who filed additional written statement. In reply thereto, the petitioner-landlady filed her affidavit denying the contents of the written statement filed by the legal heirs of tenant Dr. Rana Prakash Singh. It was further stated that no shop is available for her son Amrit Pal Singh and there is only one godown which is in use of the petitioner's husband. After the death of tenant Dr. Rana Prakash Singh, only respondent no.1 Kanwal Jeet Singh claimed to have occupied the disputed shop and no other heir came forward for setting up their claim in the tenancy. The petitioner filed another affidavit in which she categorically stated that there are several other places where the respondent no.1 can establish his office. The disputed shop is situated in a commercial area and no office can be established there. Amrit Pal Singh, son of the petitioner, filed his own affidavit dated 12.5.1997 stating therein that he is living separately from his mother and that he has done Diploma in Electronics and requires the disputed shop to establish himself in business. After hearing learned counsel for the parties and perusing the record, learned Prescribed Authority observed that in addition to shop, which is in possession of petitioner's husband, the landlord/petitioner is in possession of another shop also which was vacated by Sunny Tailor. According to petitioner, the shop which was vacated by Sunny Tailor is not a shop, rather it is a godown. Learned Prescribed Authority had made spot inspection of the disputed shop and had found that there is a room measuring 8x10 ft. which is being used by the applicant-landlady as godown. The tenant/opposite party alleged that this is the same shop which was vacated from Sunny Tailor 4-5 years back and that there is also space for store behind the disputed shop and which is being used by the applicant for storing old goods. The applicant had also filed affidavit stating that the alleged shop is in fact a godown which is being used by her husband and son. Learned Prescribed Authority did not consider the bonafide need of the applicant and observed in its order that the store can be used for godown which is behind the disputed shop. Learned Prescribed Authority further observed that if the son of applicant/landlady cannot run shop in the alleged store, this shop ought to have been offered to the tenant as an alternate accommodation but during the course of hearing this offer was rejected by the applicant's son. Learned Prescribed Authority also gave finding of comparative hardship in favour of the tenant/respondent no.1 and, ultimately, by judgment and order dated 6.12.1997, he dismissed the release application of the petitioner. Being aggrieved by order of Prescribed Authority, the petitioner/landlady filed an appeal before the District Judge, who too dismissed the appeal on similar grounds. Hence, this writ petition has been filed.
(3.) Counter affidavit has been filed by the respondent/tenant in which the averments made in the writ petition has been denied.;


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