Anil Kumar v. Suresh Chandra Jain — 1988 DIGILAW 235 (ALL)

ORDER R.P. Singh, J. - By means of this writ petition under Article 226 of the Constitution the petitioner has challenged the order passed by the IVth Additional District Judge, Saharanpur, dated 11-11-1986, dismissing the appeal of the petitioner and upholding the order passed by the Prescribed Authority, dated 23-7-1985, allowing the application for the release of the shop in dispute in favour of respondent 1, Suresh Chandra Jain in proceedings under S. 21(1)(a) of U.P. Act, XIII of 1972. 2. The facts of the case briefly are that the respondent 1, the landlord filed an -application for release of the shop in dispute for setting up his unemployed son Sandeep in cloth business with the allegations that respondent 1 is doing cloth business in a rented shop in Naya Bazar, Saharanpur and 'his second son Sandeep is unemployed and is weak in studies, having failed in B.Com. examination, the case of the landlord further is that Sandeep has gained experience in cloth business while sitting in the shop of respondent 1 and now he want and to do his independent business and since the respondent 1 is himself doing business in the rented shop and has no other premises available for establishing his son in business except the shop in dispute and hence the need of the respondent 1 for the shop in dispute is bona fide and genuine. The case of respondent 1 further is that the petitioner 1, Anil Kumar Mayor is doing various business and has many shops in the occupation. It was averred in application of respondent 1 that the petitioner has shop No. 2/655 on Court Road which is in the tenancy of Bank of India and in respect of which the petitioner Anil Kumar Mayor had already filed suit to get the same vacated. Then the petitioner is said to have two big. four-shuttered shops on Railway Road in which he is doing machinery mart business on big scale. The case of respondent 1 further was that the petitioner has another shop No. 2/65 on Court Road where he was doing business in electrical goods. Then the petitioner is said to have two big. four-shuttered shops on Railway Road in which he is doing machinery mart business on big scale. The case of respondent 1 further was that the petitioner has another shop No. 2/65 on Court Road where he was doing business in electrical goods. Besides, the petitioner is said to have other accommodation also available to him where he could easily shift from the shop in dispute which is mainly kept locked without doing any business from the same and since the respondent 1 has no other shop than the shop in dispute for setting up his unemployed son in business, hence greater hardship would be caused if the shop in dispute is not released in his favour. 3. The application for release was contested by the petitioners on the ground that the need of the respondent 1 for the shop in dispute is not bona fide and genuine and that the respondent 1 was doing cloth business in Naya Bazar on a grand scale and that his son Sandeep is already fully engaged by respondent 1 in his cloth business in Naya Bazar which was being carried on as a partnership business along with brother of respondent 1, his mother and some others.- The petitioner further contended that the shop No. 2/655 Court Road is not yet available to him and is in the tenancy of Bank-of India and that the shop No. 2/656/1 was the tenancy of Amar Singh Moghia and that shop is not suitable for cloth business. The petitioner contended that he is having business of agricultural implements in the shop in dispute and would suffer greater hardship in case the application for release of the shop in dispute is allowed in favour of respondent 1. 4. The petitioner contended that he is having business of agricultural implements in the shop in dispute and would suffer greater hardship in case the application for release of the shop in dispute is allowed in favour of respondent 1. 4. The,Prescribed Authority after going through the evidence on record and applying his mind to the same held that the need of respondent 1 for the shop in dispute for setting up his unemployed son Sandeep in cloth business is bona fide and genuine and that the petitioner is already carrying on various business in many shops while the respondent 1, who is doing business in a rented shop and has no other shop available than the shop in dispute for setting up his unemployed son in business, would suffer greater hardship in case the release application is not allowed, allowed the application vide his order dated 23-7-1985. Feeling aggrieved the petitioner went up in appeal before the IV Additional District Judge, Saharanpur who in a very detailed order after applying his mind to the evidence led by the parties upheld the findings recorded by the Prescribed Authority and dismissed the appeal which is in challenge in the present writ petition. 5. The learned counsel for the petitioner strenuously argued that the need of the respondent 1 for the shop in dispute was not bona fide or genuine and that Sandeep, son of respondent 1 was already absorbed in cloth business by respondent 1 and hence the need of respondent 1 for the shop in dispute is not pressing or bona fide. The learned counsel 'for the petitioner contended that the landlord had been initially doing partnership business. In the meantime, during the pendency of the appeal the partnership business of firm M/s. 'Bhagwan Das Daya Chand was dissolved and the respondent 1 became the sole proprietor of the cloth business and his son Sandeep Kumar is now handling the cloth business of respondent.1 in Naya Bazar, Saharanpur. In the meantime, during the pendency of the appeal the partnership business of firm M/s. 'Bhagwan Das Daya Chand was dissolved and the respondent 1 became the sole proprietor of the cloth business and his son Sandeep Kumar is now handling the cloth business of respondent.1 in Naya Bazar, Saharanpur. In reply the learned counsel for the respondent contended that admittedly, respondent 1 was initially carrying on partnership business in the name of M/s. Bhagwan Das Daya Chand and even after the partnership shop was dissolved on 21-7-1982, the business was being carried on by the respondent 1 himself but since his son Sandeep wanted to start an independent business and it is a legitimate right of every unemployed youth to start his own independent business and Sandeep cannot be compelled for being absorbed in the business already being carried on by his father respondent 1, the need for the shop in dispute for setting up Sandeep in cloth business as found by the Prescribed Authority as also by the Additional District Judge to be genuine, pressing and bona fide after appraisal of the evidence on record cannot be successfully challenged by the petitioner. I find force in the submission of the learned' counsel for the respondent that the need to set up the unemployed son in independent business is bona fide and genuine as the same has been found to be such on appraisal of the evidence and applying their mind to the same by respondents 3 and 4. Sandeep Kumar being keen to start his own business of cloth merchant and the respondent 1 having no other premises than the premises in dispute for setting up his unemployed son in business, the need of respondent 1 has rightly been found to be bona fide and genuine by respondents 3 and 4. 6. Sandeep Kumar being keen to start his own business of cloth merchant and the respondent 1 having no other premises than the premises in dispute for setting up his unemployed son in business, the need of respondent 1 has rightly been found to be bona fide and genuine by respondents 3 and 4. 6. The learned counsel for the petitioner then challenged the finding recorded by respondents 3 and 4 on the point of comparative hardship and contended that since the respondent 1 is already having extensive cloth business, now after the dissolution of firm M/s Bhagwan Das Daya Chand, his son Sandeep could easily be absorbed in the cloth business and' greater hardship would be caused if the shop in dispute is released in favour of respondent 1 which will completely uproot the petitioner from the business of agricultural implements .which he is carrying on in the premises in dispute. A perusal of the order passed by the Additional District Judge will reveal that the petitioner is carrying on more than one business in various shops in Saharanpur and he has available with him various other accommodations where he can shift his business without substantial loss. The petitioner is the owner of shop No. 2/655 Court Road, Saharanpur which was given on rent to Bank of India and at the time the application for release was moved, the petitioner was already pursuing suit for ejectment of Bank of India which suit was decreed during the pendency of the proceedings and instead of occupying the shop himself, the petitioner after getting it vacated and reconstructed gave it on rent to State Bank of Bikaner and Jaipur on a rent of Rs. 9,000/- per month. The ground floor of this building had been given to the State Bank of Bikaner and Jaipur while the first and second floors are still lying vacant. Fence it is clear that instead of occupying the shop himself the same has been let out after being reconstructed at a fabulous rent to the Bank of Bikaner and Jaipur during the pendency of these proceedings under S. 21(1)(a) of the Act. Fence it is clear that instead of occupying the shop himself the same has been let out after being reconstructed at a fabulous rent to the Bank of Bikaner and Jaipur during the pendency of these proceedings under S. 21(1)(a) of the Act. The learned counsel for the petitioner contended that since the building which was given on rent to Bank of India, was in a dangerous state and required to be pulled down for being reconstructed and hence when a loan was advanced by Bank of Bikaner and Jaipur to the petitioner for its being reconstructed, this building was let out to the Bank. The petitioner is doing flourishing business in machinery parts, electrical goods and various other business in Saharanpur and hence it is difficult to accept that the petitioner had no means to reconstruct the building and occupy it himself. Another building in the occupation of the petitioner is shop No. 2/527/2 which are two big four-shuttered shops on Railway Road in which the petitioner is carrying on machinery mart business. Then another shop in the occupation of the petitioner is shop No. 2/654, Court Road in which the petitioner is doing business of electrical goods on a big scale. Another shop which belongs to the petitioner is shop No. 2/656/1 which is said to be in the tenancy of Amar Singh Mogia who is doing cloth business. Then the petitioner also acquired shops Nos. 4 and 8 in Avas Vikas Colony which also the petitioner, instead of occupying himself gave it on rent to Punjab National Bank in March 1985 i.e. during the pendency of these proceedings. Thus it is clear that the petitioner owns various shops in Saharanpur where he is doing flourshing business and at least two of the premises became available to the petitioner during the pendency of the proceedings but instead of occupying the same himself the-petitioner preferred to let them out on rent. Thus it is clear that the petitioner owns various shops in Saharanpur where he is doing flourshing business and at least two of the premises became available to the petitioner during the pendency of the proceedings but instead of occupying the same himself the-petitioner preferred to let them out on rent. The petitioner is said to be doing business in agricultural implements in the shop in dispute which could be shifted to the alternative accommodation that were available to the petitioner without substantial loss while on the other hand, the respondent 1 landlord is himself carrying on business in a rented shop and has no other accommodation available to him where he could set up his unemployed son in business than the shop in dispute and hence the respondents 3 and 4 have rightly held that greater hardship would be caused to the respondent 1 in case his application for the release of the shop is not allowed. 7. The learned counsel for the petitioner then contended that the petitioner is carrying on his business in the shop in dispute since long number of years and the respondents 3 and 4 have lost sight of the provisions of S. 16(2)(a) which provides that the greater the period since when the tenant has been carrying on business in the building, the less should be the justification for allowing the application for the release of the accommodation. However, S. 16(2)(b) provides that where the tenant has available with him suitable accommodation to which he can shift his business without substantial loss, there shall be greater justification for allowing the application. Respondents 3 and 4 have held that during the pendency of the appeal two premises became available to the petitioner tenant but the petitioner instead of shifting his business to these premises, gave the same to the banks on exorbitant rent and in view of this provision since the petitioner had available with him suitable accommodation during the pendency of the appeal which instead of occupying himself for his business, he let them out to various banks on exorbitant rent, there will be greater justification for allowing the application for the release of the shop in dispute in the present case in favour of respondent 1. 8. 8. The learned counsel for the petitioner then contended that the Additional District Judge has not taken into consideration the subsequent events during the pendency of the appeal which could show that the need of respondent 1 for the shop in dispute has ceased to exist and hence the order passed by the Additional District Judge is vitiated and liable to be set aside. In support of his contention the learned counsel for the petitioner drew my attention to the case of Ram Shankar Gupta v. VIIth Addl. District Judge, reported in 1984 (1) ARC 50 where this court held that where the Additional District Judge failed to take into consideration the subsequent event during the pendency of the appeal when certain facts were brought on record to show that the bona fide need of the landlord has ceased to exist, the order passed by the Court is vitiated and the parties are entitled to bring the subsequent event to the notice of the court hearing the case. Another case relied upon by the learned counsel for the petitioner is Shyam Lal Om Prakash v. Vlth Addl. Dist. -Judge, Saharanpur, reported in (1983) 2 All Ren Cas 260 where also it was held that where the landlord got released a house during the pendency of the appeal and this fact was brought to the notice of the appellate court but it failed to take this subsequent fact into consideration, the decision was vitiated and the case was remanded for consideration of the subsequent events. So far as the proposition of law that subsequent event is to be taken into consideration, there can be no doubt about it. However, in the present case, there does not appear to be any subsequent event brought to the notice of the Additional District Judge by the petitioner which could have any material effect on the case. My attention has been drawn to the application moved by the petitioner before the Additional District Judge, a copy of which is annexed herewith as Annexure-13, which was moved at the fag end of the arguments in the appeal on 4-11-1986 which was to the effect that after the partnership business of M/s. Bhagwan Das Daya Chand had dissolved, then the brother of respondent 1, namely, Ramesh Chandra Jain had started a cloth business in another shop viz. No. 13/661 Naya Bazar, Saharanpur and the petitioner came to know that this shop No. 13/661 Naya Bazar was available to the respondent 1, and his partners, namely, his brother and mother initially when the application for release was moved. It was stated that this shop No. 13/661 was available to respondent 1 for Sandeep Kumar and which could be ascertained by the court from respondent 1. This application dated 4-11-84 merely states that shop No. 13/661 belonged to the partnership of respondent 1, his brother and his mother and this shop is now being used by Ramesh. Chandra Jain, the brother of respondent 1. Hence it does not make out any case of a subsequent event or even availability of a shop exclusively to respondent 1 in a vacant state which could be given to Sandeep. It will be relevant to note here that the judgment of the IVth Additional District Judge..' Saharanpur is dated 11-11-1986 while this application itself seems to have been moved on 4-11-86 during the course of the arguments. It does not bring out any subsequent event for consideration which could affect the merits of the case. The learned counsel for the petitioner then relied on the case of Mohd. Yasin v. Ilnd Addl. District Judge, Bijnor, reported in 1980 ARC 106. The facts of that case are that a shop, belonged to the landlord's father, was available for being used by the landlord but the appellate court held that the shop owned by the landlord's father could not be considered for deciding an application under S. 21 of the Act. It was in this context that it was held that the view of the appellate authority was not sound and it was held that where the shop was available and was lying" vacant, the landlord could occupy the same and start business and in that view it was held that the requirements of the landlord for the release of the shop was not genuine and bona fide. This case does not apply to facts of the present writ petition as in the present case no shop belonging to the respondent No. 1, exclusively, was found to be lying in a vacant state. On the contrary the respondent 1 himself is carrying on his business in a rented shop. This case does not apply to facts of the present writ petition as in the present case no shop belonging to the respondent No. 1, exclusively, was found to be lying in a vacant state. On the contrary the respondent 1 himself is carrying on his business in a rented shop. Hence there are no merits in the submission of the learned counsel for the petitioner that subsequent event has not been taken into consideration by the Additional District Judge, respondent 3 in the case. 9. The learned counsel for the petitioner, next contended that the petitioner filed an application on 25-8-86 making an offer that an area measuring 10' X 35' in the front portion of the shop maybe released in favour of respondent 1 which may satisfy the needs of the landlord, leaving the remaining portion of the shop in favour of the petitioner and thus this part release of the shop could satisfy the needs of the landlord respondent 1 for opening a cloth shop for his son Sandeep. The learned counsel for 'the petitioner contended that since this offer of part of release of the shop in dispute had not been considered by the appellate Court and hence the case may be remanded back to the appellate Court for consideration of that offer of part release. The learned counsel for the petitioner in support of his contention relied on the case of Lal Behari Srivastava v. District Judge, Banda, 1985 (2) ARC 446 where it was a case of offer of a part release of a residential accommodation and since none of the two Courts in that case adverted itself to the provisions of R. 16(1)(d) of the Rules framed under the Act and did not record any finding on that question of part release of the accommodation, the case was sent back to the appellate Court for determining the question whether the accommodation could be bifurcated so as to satisfy the requirements laid down in R. 16(1)(d) of the Act. In the present case, however, I find that the petitioner is carrying on more than one business in various shops owned and belonging to him and at least two of the accommodations for business purposes became available to the petitioner during the pendency of the appeal before the Additional District Judge but instead of occupying the same himself, the petitioner let them on rent to Punjab National Bank and Bank of Bikaner and Jaipur on high rent. On the other hand the respondent 1 is carrying on his business in a rented shop and he has no other accommodation than the shop in dispute to set up his unemployed son Sandeep in business. Thus this is not a case for applying the rule of part release of the accommodation and on the other hand, the facts of the present case show that the petitioner had available with him other suitable accommodation to which he could shift his business without substantial loss and hence there is greater justification for allowing the application of release moved by the respondent 1. 10. The learned counsel for the petitioner placed reliance on the case of Jivrang Ranchhoddas Thakkar v. Tulsiram Ratan Chand, reported in AIR 1977 SC 1357 . It was the case under the Bombay Rents, Hotel and Lodging House Rates Control Act for eviction from a premises consisting of three rooms. The Supreme Court in that case while making a humanist approach adopted the course of 'live and let live' by the landlord and the tenant and hence suggested that the premises be divided in such a manner that half the premises would continue with the tenant while the other half would be surrendered. The directions issued in the case were based on mutual consent and understanding on behalf of the parties. The directions issued in the case were based on mutual consent and understanding on behalf of the parties. In the present case, however, I find that it is the petitioner who seems to be acting against the humanist principle of 'live and let live' inasmuch as while the petitioner is carrying on various business single-handedly in various shops owned by him in Saharanpur apart from his having one shop in Muzaffarnagar and one shop in Delhi also, on the other hand, the respondent 1 is carrying on his business in a rented shop and has no other shop than the shop in dispute to set up his unemployed son in business so that he may do his business independently and stand on his own legs. Hence, I find no force in the submission of the learned counsel for the petitioner that the need of the respondent 1 could be adequately met by releasing part of the accommodation while leaving the remaining part of the shop under tenancy of the petitioner. 11. While delivering the judgment, Sri K. M. Dayal, learned counsel for the petitioners, prayed that the petitioners may be allowed sometime to vacate the shop and handover peace of Possession of the same to respondent 1. In case the petitioners file an undertaking before the IV Addl. District Judge, Saharanpur, within a period of one month from today that they will vacate and handover peace of possession of the accommodation in dispute by Ist July, 1988, they shall not be evicted from the same till 30th June, 1988. In case the undertaking is not filed, as stated above, it will be open to the respondents to evict the petitioners forthwith in accordance with law. 12. With these observations, the writ petition is dismissed with costs. The stay order, dated 2nd January, 1988 is vacated.