# Prakash and others v. Prescribed Authority

- **Citation:** (2000) 2 ILRA 48
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2000
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/prakash-and-others-v-prescribed-authority-39451
- **Pages:** 3

## Text

INDIAN LAW REPORTS ALLAHABAD SERIES [2000

48
those in the second entry, those in the third
entry, and so on in succession.

8. The son has preference to succeed to
the exclusion of grandson. The inheritance
takes place on the death of the tenant. In case
he is survived by four sons, such son shall
inherit the tenancy who was residing with his
father but in case the tenant dies leaving
behind him the only son but he was not
residing and shifted elsewhere but his
grandson is living, he will not inherit the
tenancy as for inheritance two conditions are
required to be fulfilled; firstly, that he inherits
the rights of the deceased tenant to the
property under the personal law and secondly,
he was residing at the time of death of the
tenant in such residential building. In Om
Prakash and others vs. Prescribed Authority
and others, 1984 (2) ARC 634, Hon'ble Mr.
Justice Saghir Ahmad (as he then was) dealt
with this question and held that a grandson in
the lifetime of his father would not inherit the
properties of the grandfather dying intestate.

9. The father of the petitioner, Prem Das
having purchased another premises and
residing therein since before the death of his
father, was not entitled to claim the tenancy
rights and when his father is not a tenant as
contemplated under section 3 (a) of the Act,
the petitioner cannot claim any right to
occupy the disputed premises as a tenant.

10. The last submission of the learned
counsel for the petitioner is that the landlords
of the premises in question, Khem Chand and
Gyan Chand, had entered into an agreement to
sell the property in dispute in favour of Ram
Sahodar, his grandfather, and therefore he is
entitled to continue in possession of the
premises in dispute. Mere agreement does not
itself create any interest in the property. The
agreement itself provides that the possession
of the property is not being given but it will
be delivered at the time of the execution of the
sale deed. The sale deed has yet not been
executed. The petitioner, in view of this
averment in the agreement, cannot claim any
right to continue in the possession of the
property after it has been found that the
disputed accommodation is vacant under the
law.

11. I do not find any merit in the writ
petition. It is accordingly dismissed.
Petition Dismissed.

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By the Court

1. This writ petition is directed against the
order dated 21.12.1989, passed by respondent
2All] Anand Babu alias Anand Swaroop V. IIIrd A.D.J., Jalaun at Orai and others
49
no.1, allowing the appeal and rejecting the
application filed by the petitioner for release
of the disputed shop.

2. Briefly stated the facts are that the
petitioner is landlord of the shop in question
situate in Mohalla Baldeo Chowk, Town Orai,
district Jalaun of which respondent no.3 was
tenant who has died during the pendency of
the writ petition and his heirs have been
substituted. He filed application for release of
the disputed shop against respondent no.3
under Section 21(1) (a) of U.P. Urban
Buildings (Regulation of Letting, Rent and
Eviction) Act 1972 (in short the Act) with the
allegations that his family consists of himself,
his wife, three sons and two daughters. His
eldest
son
Pramod
Kumar
Gupta
is
unemployed and required the disputed shop
for opening a general merchant shop. The
tenant-respondent owns a big double storied
house situate in Mohalla Gopalganj at a
distance of about 100 meters where he has
three shops on the ground floor and could
establish his business there. This application
was contested, denying that Pramod Kumar
was unemployed. The petitioner-landlord has
already a book seller shop and is also carrying
on lending business and his son Pramod
Kumar Gupta is already engaged with him. It
was stated that he is carrying of Sarafa
business in the shop and would suffer greater
hardship in case he is evicted. The Prescribed
Authority allowed the application on the
finding that the need of the petitioner to
establish his son Pramod Kumar Gupta in
business is bonafide and would suffer greater
hardship in case his application is rejected.
The tenant preferred an appeal. The appeal
has been allowed by respondent no.1 on
21.12.1989 and the release application filed
by the petitioner has been rejected.

3. I have heard learned counsel for the
parties.

4. Respondent no.1 took the view that the
petitioner has three shops. One shop is under
the tenancy of one Durga Prasad and in
another one he has a book shop and in the
third shop his business was being carried on
in the name of Sangama Ink Industry. This
business has been closed and, therefore, a
third shop is available to the petitioner to
establish his son in any business. This finding
has been challenged in the present petition.

5. Respondent no. 1 relied upon the
extract of the Municipal Assessment filed as
paper no. 45-C. This only refers to premises
nos. 132/1, 132/2 and 132/3. A copy of this
document has been filed as Annexure-7 to the
writ petition. This is an extract of Municipal
assessment for the year 1977-78 to 1981-82.
In column no.5 it does not clearly specify the
name of the tenant and exact portion in
occupation of the tenant.

6. The contention of the petitioner is that
there is only two shops, one is already in the
tenancy of another tenant and in the remaining
portion the business of book selling is being
carried on by the petitioner. This fact was to
be ascertained by appointing an Advocate
Commissioner as to what is the extent of the
shop in possession of the petitioner and
whether on the spot there are two shops. The
inference as to number of shops and their
extent cannot be ascertained from paper no.
45-C.

7. Learned counsel for the respondent
contended that in fact, son of the petitioner
had started his business in the name "Sangam
Ink Industry" and once that industry has been
closed that indicates that he does not require
the shop in question. A landlord is entitled to
establish his son in independent business.
The landlord may be carrying on the business
but if his son wants to carry on an
independent business irrespective of the
income of the father, he is entitled to carry on
his business as held in N.S. Datta and others
vs. VIIth Additional District Judge, Allahabad
and others, 1984 (1) A.R.C. 113. Secondly,
even assuming that his son is carrying on
INDIAN LAW REPORTS ALLAHABAD SERIES [2000

50
some business till he gets some independent
business, that will not deprive his to get a
separate accommodation for carrying on
independent business. In Smt. Ramka Bai vs.
Hazari Mal Dholak Chandak, A.I.R. 1999
S.C. 3089, where the landlady required the
premises to set up one of her sons in grocery
business but subsequently his son started
work of contractor, it was held that his need
did not extinguish merely because he started
some work. His son cannot be expected to
remain unemployed till the suit is finally
decided.

8. Lastly, it was urged by learned counsel
for the respondent that the tenant will suffer a
greater hardship. Admittedly, the tenant owns
three shops besides the disputed shop which
he has taken on rent. In one of the shops he
has printing business, the other two shops are
alleged to be on rent. In Bega Begum vs.
Abdul Ahad Khan, A.I.R. 1979 S.C. 272, it
has been held that the comparative hardship is
to be considered keeping in view all the facts
and circumstances of the case. The mere fact
that the tenant is to be evicted itself is no
ground to hold that the application is to be
rejected. On the one hand, his son requires to
set up his independent business and on the
other hand, the tenant has sufficient financial
status. The matter is to be examined keeping
in view all these facts.

9. In view of the above the writ petition is
allowed.
The
impugned
order
dated
21.12.1989 is hereby quashed. Respondent
no.1 is directed to decide the appeal afresh,
keeping in view the above observation and in
accordance with law within three months
from the date of production of a certified copy
of this order before his.

10. The parties shall bear their own costs.

Petition Allowed.

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