MANGNA NAND BHAT v. ADDL. DISTRICT JUDGE — 1992 DIGILAW 772 (ALL)

JUDGMENT S.C. Verma, J. - The petitioner-tenant is aggrieved by the order, dated 23-7-1987 passed by the Additional District Judge, dehradun setting aside the order, dated 25-9-1988 of the Prescribed Authority rejecting the application of the landlord under Section 21 of U.P. Act 13 of 1972, hereinafter referred to as the Act. 2. The application for release was hied with the allegations that after the death of Jagdish Prasad on 13-3-1980, respondents Nos. 2 to 8 became the owner landlords of the property being the heirs of the deceased. The petitioner occupied one shop on the ground floor and two rooms, a verandah and a Kitchen on the first floor and Opposite Party No. 2 inderjeet occupied one shop on the ground floor. The property was let out initially as the contesting respondents were minors and were not in a position to establish any business of their own. Vinay Kumar is temporarily engaged in a shop in Paltan Bazar. Ashok Kumar has done his B.A. and is employed as a Clerk in a Farm. Sushil Kumar has done his B.A. and has also taken some training for running a business. The sons want to establish in business and to augment the income and there is no other source of income except the rent. The marriages of the daughters have also to be performed. It was further alleged that the petitioner opposite party No. 1 Mangna Nand Bhat has an alternative accommodation and he is doing very flourishing business of Drycleaning at Kulri, Mussoorie and is not personally looking after the business in the disputed shop and has permitted one Sri Bhupati Ram to run the business and occupy the shop. The opposite party No. 2 has sufficient resources to arrange for an alternative accommodation which is available in the locality. The opposite party No. 1 instead of using the residential accommodation on the first floor is using the same for commercial purposes and on these facts they claimed their need to be bona fide, and genuine. 3. The tenants contested the release application and it was alleged by opposite party No. 1 that initially the shop was let out to Standard Drycleaners in which Mangna Nand Bhat and Bhupati Ram were partners. It was alleged that Vinay Kumar is employed at present with M/s. Jhandu Mal Ram Narain and is doing service for the last 10 years. The tenants contested the release application and it was alleged by opposite party No. 1 that initially the shop was let out to Standard Drycleaners in which Mangna Nand Bhat and Bhupati Ram were partners. It was alleged that Vinay Kumar is employed at present with M/s. Jhandu Mal Ram Narain and is doing service for the last 10 years. The second son is employed with Arbar Ecres Farm for several years and he has been transferred to Niranjanpur Branch. Sushil Kumar had started his business with heavy investment at Dharampur Chowk. Ashok Kumar will get employment in Post and Telegraph Department where his father was employed and died in harness and his family is getting family pension and other funds as also rental income which is sufficient for their livelihood. The business in the disputed shop is a partnership business and has a branch at Kulri, Mussoorie which was opened in 1968-69, but the opposite party No. 1 is mainly concerned with the disputed shop as the work at Mussoorie is only seasonal. The shop has earned good will and there is no other alternative accommodation available in the near vicinity. The other tenant Inderjeet, opposite party No. 2, also denied the need of the landlord and the availability of alternative accommodation. 4. The Prescribed Authority held that the need of the applicant lacks bona fide and it was not necessary to compare the hardship, 5. The lower appellate Court rejected the appeal in respect of the accommodation occupied by opposite party No. 2 Inderjeet. It has been held that Inderjeet is occupying the premises from much longer time than Mangna Nand Bhat and he would be put to greater hardship in comparison to the landlord as also in comparison to Mangna Nand Bhat if his shop is released. Moreover the size of the accommodation with opposite party No. 2 is very small. The learned judge held that the material on record established that the sons of the landlord have bona fide and genuine need of the accommodation to start their business of Provision Store/General Marchandise. Moreover the size of the accommodation with opposite party No. 2 is very small. The learned judge held that the material on record established that the sons of the landlord have bona fide and genuine need of the accommodation to start their business of Provision Store/General Marchandise. However, with regard to opposite party No. 1, it has been held that the need for the accommodation in possession of opposite party No. 1 is bona fide and genuine for the need of Sushil Kumar, It was alleged on the part of the tenant that Sushil Kumar was running business Sushil Paan Bhandar and has very substantial income from it and he has no intention to establish any new business. The alleged business belongs to the maternal aunt and Sushil Kumar was only helping her business to get some experience. The Prescribed Authority was not correct in drawing adverse inference because the maternal aunt Smt. Kusum Trivedi who has owned the business Trivedi Tambul Bhandar did not file her own affidavit to deny the fact. Lastly it was held chat Sushil Kumar who was temporarily employed with a salary of Rs. 215 per month in the District Cooperative Federation bona fide needs the disputed shop to start his business of General Merchandise. It was also held that the income from the pensionery benefits of the father are not sufficient to meet the expenses of the family and there is need to augment the income by establishing new business. 6. The findings of the Prescribed Authority were set aside and it was held by the appellate authority that the need of the respondents for the release of the disputed shop is bona fide and genuine. The appellate authority was of the view that at least one shop on the ground floor should be made available to the landlord to establish in business and some place to store their goods on the first floor. The petitioner was found to be in possession of one shop on the ground floor and two rooms and verandah and Kitchen on the first floor. The petitioner has established another flourishing business at Kulri Bazar, Mussoorie and in the present accommodation, one Bhupati Ram who claimed to be the partner of Mangna Nand Bhat is looking after the business on his behalf. The petitioner has established another flourishing business at Kulri Bazar, Mussoorie and in the present accommodation, one Bhupati Ram who claimed to be the partner of Mangna Nand Bhat is looking after the business on his behalf. In these circumstances it was held that the petitioner opposite party would be put to lesser hardship in case he has to vacate the disputed accommodation to accommodate the landlord. 7. The learned Counsel for the petitioner assailed the release of the disputed accommodation on the ground that the application for release under Section 21 is not maintainable against two separate tenants. The learned Counsel further alleged that from the very beginning, the business was being run jointly by Mangna Nand Bhat and Bhupati Bam and large number of documents brought on record fully established the fact that the accommodation let out to standard Drycleaners was not exclusively in the tenancy of the petitioner. The affidavits of Chandra Mani and others have not been considered which establishes that Mangna Nand Bhat is carrying on business in partnership with Bhupati Ram and it is incorrect that after shifting the business at Mussoorie, Mangna Nand Bhat is not interested in running this business and it is being run on his behalf by Bhupati Ram. Lastly it was argued that the provisions of Rule 16 of the Rules framed under the Act were not considered. The shop has a frontage of 16 X-11 and there is accommodation on the first floor which can be divided and the need of the landlord could be satisfied by release of part accommodation. The landlords did not challenge the order of the appellate authority with regard to the dismissal of their appeal for release of shop occupied by Inderjeet which further establishes that they have no bona fide need. 8. From the material on record it is fully established that the finding of the appellate Court in holding that the need to establish Sushil Kumar who is temporarily doing service with Co-operative Federation and getting a salary of Rs. 215 per month is bona fide and genuine and he requires the accommodation to establish a General Merchandise business to augment the income of the family does not suffer from any illegality or infirmity and does not call for any interference in exercise of my jurisdiction under Article 226 of the Constitution. 9. 215 per month is bona fide and genuine and he requires the accommodation to establish a General Merchandise business to augment the income of the family does not suffer from any illegality or infirmity and does not call for any interference in exercise of my jurisdiction under Article 226 of the Constitution. 9. The tenant petitioner has tried to establish by the evidence on the record that the business of Drycleaning by the name of Standard Drycleancrs was being run in the disputed shop in partnership with Bhupati Ram and the allegation of that landlord that Bhupati Ram alone is doing the business on behalf of Mangna Nand Bhat is not correct. It is true that Mangna Nand Bhat has not disassociated from the aforesaid business and is also running the business of Standard Drycleaners in the disputed shop along with Bhupati Ram. Even if it is not established that the business is being run by Bhupati Ram on behalf of Mangna Nand Bhat, yet from the material on record it is established that Mangna Nand Bhat has established another flourishing business at Kulri Bazar, Mussoorie and he is mainly looking after that business. In comparing the hardship, in these circumstances, the appellate Court has not committed any error of law or jurisdiction in holding that Sushil Kumar, one of the landlord wants to establish in business as his temporary employment getting a salary of Rs. 215 per month is not sufficient to maintain his own family by other family members, and he will be put to greater hardship in comparison of the tenant who has already established an alternative flourishing business at Kulri Bazar, Mussoorie. It is also established that the tenant had not cared to search for an alternative accommodation and no material has been brought on record to establish that either any effort was made or alternative accommodation was not available. These circumstances weigh heavily against the tenant for comparing the hardship (Refer Bega Begum and others v. Abdul Ahad Khan and others (1979) 1 SCC 275 : SCFBRC 346 (SC) and N.S. Datta v. Additional District Judge 1984 (1) ARC 113. 10. These circumstances weigh heavily against the tenant for comparing the hardship (Refer Bega Begum and others v. Abdul Ahad Khan and others (1979) 1 SCC 275 : SCFBRC 346 (SC) and N.S. Datta v. Additional District Judge 1984 (1) ARC 113. 10. As regards the affidavit of Vinai Kumar who has filed contradictory affidavits-one in favour of the applicants in support of their contention and the other to indicate that he does not want to start any business in the diputed shop alone or with his brothers-has rightly been rejected and has been relied upon only to the extent that he does not require the accommodation as he is satisfied with his service, but that would not establish that the other son, namely, Sushil Kumar also does not want to establish the business of General Marchandise as indicated above. The appellate authority has correctly come to the conclusion that the engagement of Sushil Kumar in business in Dharampur with the maternal aunt Smt. Kusum Trivedi running the business of Trivedi Tambul Bhandar has come to an end and he has taken a temporary employment with the District Co-operative Federation at a salary of Rs. 215 per month. It would be unjust to draw any adverse inference that Sushil Kumar does not really intend to start his own business. Merely because the order of the appellate authority was not challenged by respondents Nos. 2 to 8 with regard to dismissal of their appeal in respect of release of accommodation occupied by Inderjeet, this circumstance would also not establish that the need of Sushil Kumar cannot be treated to be bona fide and genuine The landlords requirement would be satisfied with the release of the shop at the disposal of petitioner opposite party No. 1 and so they felt satisfied and did not pursue further in respect of the other part of the accommodation. 11. I am also satisfied that it was necessary to augment the income as the total income from all the sources was shown to be only Rs. 1058/- which is not at all sufficient for five members even if one of the son who lives separately is excluded. 12. The contention of the petitioner that the application under Section 21 is not maintainable against two tenants also cannot be accepted. 1058/- which is not at all sufficient for five members even if one of the son who lives separately is excluded. 12. The contention of the petitioner that the application under Section 21 is not maintainable against two tenants also cannot be accepted. Firstly, this plea raised in paragraph 35 of the written statement of Sri Mangna Nand Bhat was not raised either before the Prescribed Authority or before the appellate authority and no finding or discussion finds place in either of the two orders. Secondly, assuming that a landlord has given tenancy of a building to one or more tenants, the law does not envisage that eviction can be sought only against one of them. The eviction can be sought against the entire body of tenants who hold that building under tenancy. The eviction of more than one tenant if sought on the same ground or cause of action, one application would be sufficient. The provisions of Section 21 (1) of the Act do not contemplate a separate application against each tenant. Moreover the objection about the maintainability of the application ought to have been taken at the first opportunity. In the present case, although a plea has been raised but it was not pressed as the Courts below have not considered this objection. (Refer Jagdish Chandra Yadava v. 1st Additional District Judge, Allahabad 1977 ARC 13 (SN 16). Reliance was placed by the learned Counsel for the respondents on Ram Chandra v. Judge, Small Causes Court, Farrukhabad and others, 1984 (10) ALR 191 where a single suit for eviction under Section 20 (2) (a) of the Act for eviction from two tenaments was held not maintainable when agreement of tenancy was different. The contract of tenancy is in relation to a tenament which may be in respect of a building or part of a building. In a suit under Section 20 (2) (a), the cause of action may be different and the tenancy has to be terminated separately of each tenant. In an application under Section 21 for release of the accommodation, the cause of action, if it is the same and the grounds are the same, there would be no requirement of separate applications. 13. During the pendency of the writ petition, the petitioner brought on record material to establish that the disputed shop was let jointly to the petitioner and his uncle Bhupati Ram. 13. During the pendency of the writ petition, the petitioner brought on record material to establish that the disputed shop was let jointly to the petitioner and his uncle Bhupati Ram. The landlords had full knowledge about the joint tenancy and the tenancy of Bhupati Ram stood regularised. The accounts of the shop and the assessments by the Income-tax authorities were also brought on record to establish that the petitioner Mangna Nand Bhat and Bhupati Ram are jointly carrying on the business of Drycleaning under the name and style of Standard Drycleaners. The petitioner had also brought on record the sale deeds executed by the respondent to establish that they had sufficient land and income from the property. In my opinion, the evidence to establish the tenancy of Bhupati Ram from the inception of the tenancy was on record before the Courts below and after considering the entire evidence, both the Courts have been held that Mangna Nand Bhat alone is the tenant of the disputed premises. It is also established and admitted by Mangna Nand Bhat that he is doing the business in partnership with Bhupati Ram who has been inducted as a partner without the consent of the landlord. The business in the disputed premises is run by Bhupati Ram while the business at Mussoorie is being looked after by Mangna Nand Bhat. The aforesaid findings do not sillier from any illegality or infirmity and the material sought to be relied by the petitioner do not indicate that the findings are not in accordance with law. The income from the sale of the property has been explained by the respondents in their counter-affidavit and, in my opinion, the total money received by each of the family members is not sufficient to hold that there would be no need to establish any business by Sushil Kumar who has only received a share of about Rs. 65,000/-. Even the subsequent events as alleged by the petitioner do not indicate that the respondent Sushil Kumar would be able to continue with the meagre income of salary and his need to establish in business has been satisfied. 14. The learned Counsel for the petitioner lastly contended that the Courts below did not consider that the need of the respondents would be satisfied by part accommodation. 14. The learned Counsel for the petitioner lastly contended that the Courts below did not consider that the need of the respondents would be satisfied by part accommodation. In my opinion, the learned Counsel for the respondents is correct in his submission that the provisions of Rule 16 (1) (d) of the Rules framed under the Act would not be applicable when the release is sought for business purposes. (Refer Bhagwan Das v. Smt. Jiley Kaur and others 1991 (1) ARC 377 (SC). The petitioner never raised this plea before the Courts below to enable them to consider the feasibility of apportionment of the accommodation and to assess the requirement of the respondents which could be met by part release of the accommodation. There is no material on record at this stage to consider this plea and I am not inclined to consider this aspect of the matter for the first time in proceedings under Article 22b of the Constitution before this Court. A suggestion was made by me to the learned Counsel for the parties to adjust amongst themselves some solution in this regard but no agreed solution be arrived at and even though both the parties brought on record oilers and counter offers for adjustment of the accommodation between the parties. 15. In this view of the matter, I am not prepared to disturb the findings recorded in the impugned order by the learned Additional District Judge. 16. The petition accordingly fails and is dismissed. There will be no order as to costs. 17. Considering the long business of the petitioner, it would be in the interest of justice that the petitioner be allowed 6 months time to vacate the premises. This indulgence would only be available to the petitioner in case the petitioner furnishes an undertaking before the Prescribed Authority within a month of receipt of a certified copy of this order that he would deliver peaceful and vacant possession to the landlord after 6 months. In case the undertaking is not furnished, this indulgence would not be available to the petitioner.