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1986 DIGILAW 650 (ALL)

Om Prakash v. 3rd Addl. DJ Others

1986-08-30

PARMESHWAR DAYAL

body1986
JUDGMENT Parmeshwar Dayal, J. - This is a tenant's writ petition under Article 226 of the Constitution of India for quashing the orders dated 11981 and 211082, passed by the Prescribed Authority (Rent Control), Sitapur and the lllrd Additional District Judge, Sitapur, respectively, contained in Annexures9 and 11 to the Writ Petition. 2. The dispute relates to the southern portion of shop no. 546, situated in Thomsanganj, Market, Sitapur. The entire shop measures 17.9 ft. x 26 ft. The frontage is of 17.9 ft. northsouth and the depth is 26 ft. eastwest. The northern portion of the disputed shop has been in possession of the landlords, namely, Sardar Kesar Singh, Sardar Bahadur Singh and Sardar Pritam Singh, opposite parties no. 3 to 5. They purchased the entire shop on 17676. Southern portion of this shop measures about 8 ft. in the front and 26 ft. in the depth and it has been under the tenancy of the petitioner Om Prakash at a rental of Rs. 145 per month. The landlords sent a notice dated 10876 to the tenant for vacating disputed shop within a period of six months to which he sent a reply dated 2976. 3. On 9779 the landlords moved an application under section 21(1) (a) of Act No. 13 of 1972 for release of the disputed shop in their favour on the grounds that the accommodation with them was insufficient for their business as the opposite party no. 5 Sardar Pritam Singh also wanted to start his business and that Jia Ji Cotton Mills has been insisting for establishing their own show room and in case they did not establish the same, they would suffer substantial loss in their business. This application is contained in Annexure1 to the Writ Petition. The landlords further pointed out in their application that the shops constructed by the Zila Parishad and Nagar Mahapalika at a distance of about 100 yards from the disputed shop were available for rent. 4. The tenant Om Prakash has been occupying the disputed shop since the year 1965. This application is contained in Annexure1 to the Writ Petition. The landlords further pointed out in their application that the shops constructed by the Zila Parishad and Nagar Mahapalika at a distance of about 100 yards from the disputed shop were available for rent. 4. The tenant Om Prakash has been occupying the disputed shop since the year 1965. He claimed in his written statement dated 7979, contained in Annexure2, that he acquired goodwill in his business In the disputed shop and since all the members of his family are engaged and are surviving on this cloth business which he is carrying on in the disputed shop, he would suffer great hardship if he is made to vacate the disputed shop. About the shops of Nagar Mahapalika and Zila Parishad, he pleaded that he would have to pay an amount of Rs. 28,000 to Rs. 30,000 as premium for getting that shop allotted. 5. The landlords moved an application under Section 16 (f) [Rule 16 (1)(f)?] dated 101179 that they would render financial help to the tenant in obtaining one of those shops of Nagar Palika or Zila Parishad as contained in Annexure3, to which the tenant replied vide Annexure4 that no shop was available. The Prescribed Authority made a local inspection and noted down its report dated 5981, vide Annexure8, to the effect that the shops of Nagar Palika were at a distance of about 100 yards from the disputed shop and in four of those shops cloth business was being carried on while the three were still vacant. 6. The Prescribed Authority, then allowed the application under Section 21 of the Act and granted two years' rent as compensation to the tenant and further granted six month's time to vacate the disputed shop by means of its order dated 11981, contained in Annexure9. The tenant filed Rent Appeal No. 4 of 1981. The landlords moved application dated 21182 during the proceedings of appeal, vide Annexure12, that they were prepared to render help to the tenant if he makes effort to have one of the shops of Nagar Palika and Zila Parishad. The appeal was dismissed on 211082 by means of judgment contained in Annexure11. 7. In this writ petition the tenant claimed that the Prescribed Authority had not framed any issue on the disputed point of comparative hardship of the parties. The appeal was dismissed on 211082 by means of judgment contained in Annexure11. 7. In this writ petition the tenant claimed that the Prescribed Authority had not framed any issue on the disputed point of comparative hardship of the parties. He referred to the three grounds on which basis the Prescribed Authority allowed the application of the landlords. The grounds were that in case the landlords did not provide a showroom according to Jia Ji Cotton Mills' requirements their agency would be terminated and they would suffer great loss; the landlords have to provide business to the opposite party no. 5; and that the landlords would not have invested the huge amount in purchasing the disputed shop, if their need would not have been genuine. 8. The contention of the petitioner is that the landlords have a huge business with a turnover of about Rs. 16 lacs while the tenant had to expand his business and that the ground that opposite party no. 1 also should have his own business is not a sufficient ground for getting the disputed shop vacated. He referred to the Rule 16(2) framed under the Act No. 13 of 1972. This rule lays down that; while considering an application for release under Section 21(1) (a) in respect of a building let out for purposes of any business the Prescribed Authority shall also take into account the likely hardship to the tenant from the grant of the application as against the likely hardship to the landlord from the refusal of the application and for that purpose shall also have the regard to such facts as the greater the period of tenancy less the justification for allowing the application, if the tenant can shift to another suitable accommodation without substantial loss to his business and the Prescribed Authority in a suitable case may on the application of the tenant impose the condition that where the landlord had any other accommodation available with him, the same should be let out to the tenant on a fair rent to be fixed by the Prescribed Authority and so on. The petitioner claimed that the landlords could set up their show room at some other place. 9. The petitioner claimed that the landlords could set up their show room at some other place. 9. The tenant referred to the observations of the appellate court in its judgment, contained in Annexure11, which are to the effect that the Prescribed Authority compared the need instead of the hardships and the circumstances taken into consideration are equally valid in the comparison of hardship. On this basis the petitioner claimed that the Prescribed Authority ought to have given separate finding on the bona fide need and the comparative hardship of the parties. 10. The petitioner relied on the case of Sri Satya Prakash Dutta v. Distt. Judge and others, (1980 ARC 76) in which case it was held that the question of bona fide need and comparative hardship decided in a cryptic way without giving reasons was not a sustainable order. He further relied on the case of Smt. Sampat Devi v. Smt. Santosh Kumari (1980 ARC 86) in which case it was held that if a matter was held in cursory manner in appeal, such a decision was not a decision in the eyes of law. He relied on the case of Smt. Vidya Wall v. District Judge, Meerut, (AIR 1981 All 9) in which case it was held that issue of bona fide need and comparative hardship should not be mixed up and should be decided separately He placed reliance on the case of Smt. Chaturi Bai and others v. The IIIrd Addl. District Judge, Kanpur and others, (1982 ARC 141) in which case it was held that disposal without comparing hardship on the basis of bona fide need of the landlord was bad and was liable to be set aside. Relying on all these cases the petitioner referred to the impugned judgment of appellate court, contained in Annexure11, which judgment mostly referred to the findings of the Prescribed Authority and contained observations that there was no reason for the appellate court to disagree with those findings and also that the Prescribed Authority compared the need instead of hardship. 11. But in the appellate court's judgment, contained in Annexure11, it was also observed that the circumstances, taken into consideration, are equally valid in that comparison of hardship. 11. But in the appellate court's judgment, contained in Annexure11, it was also observed that the circumstances, taken into consideration, are equally valid in that comparison of hardship. These observations by the appellate court show that the appellate court was convinced that the comparative hardship of the parties was considered by the Prescribed Authority even though it was not specifically mentioned under the two different heads of bona fide need and hardship. The Prescribed Authority has mentioned in its judgment, contained in Annexure9, that it was pleaded by the tenant that looking into the comparative need and hardship of the parties, the landlords would not face any hardship if the disputed shop is not released in their favour (page 6). It was observed at page 7 of Annexure9 that the accommodation with them was not sufficient in relation to their cloth business. It was observed at page 9 that from the various letters it was evident that in case show room was not established in accordance with the requirements of Jia Ji Cotton Mills, the agency of the landlords would be finished, and that the need of landlords was bona fide. At page 10 it was observed that the income of the landlords could be augmented if opposite party no. 5 also started his business and that the landlords had with them a shop measuring 8 ft. x 21 ft, Referring to the purchase of the shop by the landlords for a sum of Rs. 70,000 at page 11, the Prescribed Authority observed that their need was genuine. At the same page no. 11 it was observed that so far as the question of comparative need of the parties was concerned, the landlords would lose the agency of the Jia Ji Cotton Mills in case the disputed shop is not released in their favour, and if the tenant is evicted from the disputed shop he can start his business in a shop of Nagar Palika at a distance of 100 yards. Again at page 13 it was specifically mentioned that as compared to the tenant, the hardship of the landlords would be greater if the disputed shop is not released in their favour. Again at page 13 it was specifically mentioned that as compared to the tenant, the hardship of the landlords would be greater if the disputed shop is not released in their favour. All this shows that the Prescribed Authority considered the comparative hardship of the parties apart from considering the bona fide need of the landlords and that the appellate court erred in observing that the Prescribed Authority had not compared the hardship of the parties. In case any issue was not framed on the point of comparative hardship it did not mean that the parties did not lead evidence on that point and it was not considered by the Prescribed Authority. 12. The petitioner contended that the ground for augmenting the income was not sufficient for release of the disputed shop. For this, the petitioner relied on the case of Ram Bharose v. Nanak Ram (1982 (2) ARC 542) in which case it was held that in the case for augmenting the income the landlords have to prove that the income from the existing business and other resources was not sufficient to meet the needs of the family. But the case of the landlords in the instant case is not only that the they want to augment their income but they have set up their case that the opposite party no. 5 has become major and he is also to enter into the business. The turnover of the income of the landlords is already about 16 lacs and their need on ground of augmenting their income is not the only point to be considered in this case. 13. The petitioner contended that the letters issued by the Jia ji Cotton Mills are not admissible in evidence and they could not be relied on without proof. For this they relied on the case of State of U.P. and another v. 1st Addl. District Judge, Allahabad and others (1983 All LJ 1273) in which case it was held that in order to prove the report of a valuer, affidavit of the valuer himself was necessary. In this cited case it was held that provisions of the Evidence Act do not apply to affidavits presented to any court or officer and that the provisions of Evidence Act will not apply to the validity or admissibility of evidence that may be filed before the authorities under the Rent Control Act. In this cited case it was held that provisions of the Evidence Act do not apply to affidavits presented to any court or officer and that the provisions of Evidence Act will not apply to the validity or admissibility of evidence that may be filed before the authorities under the Rent Control Act. The affidavits have to fulfil the requirements of the Code of Civil Procedure in relation to affidavits. Even if the letters of Jia ji Mills are discarded, the letters sent by the landlords establish their contention that they were required to establish a show room. 14. Rule 16(2) of the Act applies to this case only in as much as the tenant raised a plea that the landlords had some accommodation in their residential house for running their business and the landlords offered that accommodation to the tenant who refused to accept the same for his own business. The tenant has been in the disputed shop since the year 1965 only and the Prescribed Authority could have fixed the fair rent of that accommodation only if the tenant would have applied and would have agreed to take that accommodation which was available with the landlords. The tenant relied on the case of Daud Khan and others v. The District Judge, Bulandshahr and others (1978 ARC 49) in which case it was held that the offer of alternative accommodation must be made either before the Prescribed Authority or before the appellate court. This cited case is not applicable to the facts of the instant case. 15. The petitioner claimed that the appellate court ought to have given its own finding regarding hardship and for that he relied on the case Shyam Lal v. VIIth Addl. District Judge, Meerut, (1986 ARC 34). In the instant case the appellate court gave reasons for agreeing with the findings given by the Prescribed Authority and it erred in writing down one sentence only to the effect that the Prescribed Authority compared the need instead of hardships. The Prescribed Authority considered the comparative hardships of the parties and gave full consideration to the bona fide need also. Then, the quality of the judgment of the appellate court has not to be considered in this writ petition. 16. The Prescribed Authority considered the comparative hardships of the parties and gave full consideration to the bona fide need also. Then, the quality of the judgment of the appellate court has not to be considered in this writ petition. 16. A number of shops of Nagar Palika and Zila Parishad as well as of one Ram Chandra and one Govind Prasad were available near the disputed shop. The shops of Nagar Palika were at a distance of about 100 yards from the disputed shop. The landlords offered financial help also to the tenant and for that they moved application dated 10111979, and 25111981 before the Prescribed Authority and before the appellate court vide Annexures C 1 and C 6. Their family consists of atleast sixteen members at present. A reference may be made to the case of Mst. Bega Begum v. Abdul Ahad Khan ( AIR 1979 SC 272 ) in which case it was held that to insist on getting an alternative accommodation of a similar nature in the same locality will be asking for the impossible. The tenant has not shown that the shops of Nagar Palika and Zila Parishad in the same locality were of inferior quality. The landlords had offered to contribute some amount for obtaining one of those shops and the tenant declined to that. 17. The landlords relied on the case of Brij Nandan Saran v. The Addl. District Judge (1978 ARG 236) in which case it was held that application cannot be rejected as not maintainable if it was moved on the basis of need to expand the business and that every citizen is entitled to expand his business and increase his income. But it was subsequently held that ground of release in relation to augmenting the income is not sufficient3 as held in the case cited in 1982 (2) ARG 542. This is therefore not helpful to the landlords. 18. The landlords relied on the case of Jagdish Prasad v. Smt. Angoori Devi, (AIR 1984 SG 1447) in which case it was held that finding of fact on point of sub tenancy cannot be interfered under Article 226 of the Constitution. They further relied on the case of Kali Charan v. Additional District Judge, Dehradun and others, (1985 (1) ARC 468) in which case it was held that finding on the question of hardship is one of fact. They further relied on the case of Kali Charan v. Additional District Judge, Dehradun and others, (1985 (1) ARC 468) in which case it was held that finding on the question of hardship is one of fact. On this basis it has been contended on behalf of the landlords that mere technicalities have to be ignored if substantial justice is done. 19. The landlords relied on the case of Sri Dau Dayal v. The Fifth Addl. District Judge, Aligarh, (1980 ARC 194) in which case it was held that in the case of business premises the offer of alternative accommodation or the general possibilities of securing alternative accommodation without any specific accommodation being in point are only considerations which bear in varying degree on hardship of the tenant. They further relied on the case of M/s Deep Chand Nem Chand Jain v. The Prescribed Authority, (A.D.M.) (E), Saharanpur and others, (1980 ARC 470) in which case it was held that the consideration of the fact that some members of the landlord's family who are unemployed or unengaged cannot be brushed aside. 20. In the instant case, the landlords purchased the disputed shop and they need the disputed shop for establishing show room, in the absence of which show room they are likely to lose the agency of Jia Ji Cotton Mills. The tenant has been carrying on his cloth business in the disputed shop since the year 1965. In the case of Radhey Shyam v. IV Addl. District Judge, Bulandshahr, (1980 All LJ 463), it was held that even if the tenant occupied the premises for forty years and when the need of the landlord was found genuine, it could be released in his favour. The landlords of the disputed shop offered to financially help the tenant for obtaining any shop of Nagar Palika or Zila Parishad out of the many shops which existed at a distance of 100 yards from the disputed shop. They moved one application after another offering financial help to the tenant but the tenant did not agree to the same without any valid reason. The tenant referred to a portion of the residence of the landlords and the landlords offered that portion also to the tenant but he did not agree to occupy that portion also in lieu of the disputed shop. The tenant referred to a portion of the residence of the landlords and the landlords offered that portion also to the tenant but he did not agree to occupy that portion also in lieu of the disputed shop. The only ground of the tenant is that he earned goodwill in this shop. If he has earned goodwill in his business, his goodwill will remain with him in the shop which he now occupies. In the instant case, he had an opportunity of getting another shop in the same locality at a distance of about 100 yards from the disputed shop. All this shows that the tenant is adamant in creating hardship for his landlords and he is evading the vacation of the disputed shop on one ground or the other. The learned Prescribed Authority and the learned appellate court displayed substantial justice in deciding this case and their findings cannot be interfered with on ground of miner technicalities. Hence this petition has no force. 21. The writ petition is dismissed. No order is made as to costs. However, the petitioner (tenant) is given thirty days time to vacate the disputed shop. (Petition dismissed.)