Shamse Alam v. District Judge Gorakhpur — 1996 DIGILAW 248 (ALL)

Judgment : SUDHIR Narain, J. 1. The petitioner has sought a writ of certiorari quashing the order dated 15-2-1995 passed by the Prescribed Authority allowing the release application filed by respondent No. 3 under Section 21 (1) (a) of U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act) and the order dated 1-12-1995 passed by respondent No. 1 affirming the said order in appeal. ; ' 2. RESPONDENT No. 3 filed application for release of the shop in question on the allegation that Smt. Husna Khatoon, his mother, was its owner and landlord. In the year 1991 the said shop came in his share in a family settlement. He is a young man aged about 28 years, married and unemployed. He wants the shop in dispute for setting up himself in business. The petitioner is tenant of the disputed shop but he has put his lock since 1972 and is running his Gun shop in Mohalla Khoinipur, district Gorakhpur and does not require the shop in question. The application was contested by the petitioner. It was stated that the landlord of the shop in question was Mohd. Afaq, the grand-father of respondent No. 3, who let out the shop in question to the father of the petitioner, namely, Late Mohd. Sultan and after the death of Mohd. Afaq, his three sons, namely, Shahir alam, Badar-Alam and Shabbir Alam and one daughter Zakia became co-landlords. Since Shahir Alam was the elder son of Mohd. Afaq, the rent was being paid to him on behalf of other landlords. After the death of a Shahir Alam, the rent was being paid to Smt. Husna Khatoon, widow of Shahir Alam. The theory of family settlement in false. It was further stated that his brothers and sister are also co-tenants of the shop is question and they have not been impleaded as a party. It was denied that the need of the landlord was bona fide. He was agent of L. I. C. and has also bakery shop at Maharajganj and carrying on business through his agent, Ghhotey Lal. In the disputed shop his two other brothers are carrying on business. The Prescribed Authority relied upon the family settlement and held that respondent No. 3 was the sole landlord. He was agent of L. I. C. and has also bakery shop at Maharajganj and carrying on business through his agent, Ghhotey Lal. In the disputed shop his two other brothers are carrying on business. The Prescribed Authority relied upon the family settlement and held that respondent No. 3 was the sole landlord. The petitioner was a joint tenant and he has represented the other co-tenants and if his other brothers are joint tenants, the petitioner has represented their interest. The shop in question is not being used since 1972 and respondent No. 3 has no accommodation to carry on business. The release application was allowed vide order dated 15-2-1995 and the order has been affirmed in appeal by the Appellate Authority. 3. LEARNED counsel for the petitioner urged all the points which were taken by the petitioner before respondent Nos. 1 and 2. The firs contention is that the application filed by respondent No. 3 was not maintainable as he was not the sole landlord and other co-landlords were not impleaded as party in the application. 4. THE version of respondent No. 3 is that Smt. Husna Khatoon, his mother, was landlady and in family settlement the said shop came into his share in the year 1991. It is not denied that Smt. Husna Khatoon was realising the rent exclusively from the petitioner. It is not averred that Smt. Husna Khatoon is still receiving the rent from the petitioner. On the other hand as affidavit purporting to have been signed by Smt. Husna Khatoon was filed by respondent No. 3 affirming that family settlement has taken place in which the disputed shop has been exclusively given to the respondent No. 3. Authenticity of this affidavit was challenged by the petitioner before the Prescribed Authority. The Prescribed Authority summoned the register maintained by the Oath Commissioner and it was found that signature of Smt. Husna Khatoon did not appear in the register maintained by the Oath Commissioner. This fact itself was not sufficient to establish that no affidavit was sworn by Smt. Husana Khatoon. It is an irregularity or lapse on the part of Oath Commissioner. The Oath Commissioner had verified the signature of Smt. Husna Khatoon on the affidavit which was filed before Prescribed Authority. This fact itself was not sufficient to establish that no affidavit was sworn by Smt. Husana Khatoon. It is an irregularity or lapse on the part of Oath Commissioner. The Oath Commissioner had verified the signature of Smt. Husna Khatoon on the affidavit which was filed before Prescribed Authority. The petitioner filed objection to the affidavit and in Para 10 of the objection it was stated that it has come to the knowledge of the petitioner that the affidavit does not bear signature of Smt. Husna Khatoon. The petitioner did not file any affidavit stating that the signature appearing on the affidavit purporting to be that of Smt. Husna Khatoon is, in fact, not of Smt. Husna Khatoon. The petitioner was admittedly receiving rent from Smt. Husna Khatoon. Respondent Nos. 1 and 2 rightly believed the affidavit of Smt. Husna Khatoon. 5. THE version of the petitioner is that the grandfather of the respondent No. 3 had let out the accommodation and thereafter it was inherited by his sons and daughters. Admittedly the petitioner will be one of the co-landlords. Even if there had been no partition, respondent No. 3 was entitled to file application for release. In Full Bench decision of this Court in Gopal Das and another v. 1st Additional District Judge, Varanasi and others, 1987 (1) ARC 281, it was held that release ap plication filed by one of the co-owners is maintainable. This view has been followed in Nirmal Kumar Suri, v. VIIth Additional District Judge, Kanpur Nagar, 1995 (l)ARC 146 : 1995 (1) JCLR 57 (All ). 6. THE first submission of the learned counsel for the petitioner is that the need of the landlord- respondent No. 3 is not bona fide and genuine. He, is working as agent of L. I. C. Respondents No. 1 and 2 have found that the mere fact that the petitioner is working as agent of L. I. C. and getting some income from it, does not itself establish that he is carrying on business. The contention of the petitioner that he is carrying on business in the name of Annapurana Bakery through his agent, Chhotey Lal, has been disbelieved. It has been found that the petitioner is not carrying on any business. The contention of the petitioner that he is carrying on business in the name of Annapurana Bakery through his agent, Chhotey Lal, has been disbelieved. It has been found that the petitioner is not carrying on any business. The mere fact that he has not disclosed the nature1 of business which he wants to set up, does not itself indicate that he had no intention to set up a business. In Ram Kumar Khaitan and others v. Bibi Zubaida Khatoon and another, AIR 1995 SC 576 , it has been held by the Supreme Court that mere non-disclosure of the nature of business in the application does not establish that the need set up by the landlord is not bona fide. The second submission of the learned counsel for the petitioner is that the petitioner himself is carrying on business of repairing gun in the shop situate in Mohalla Khoonipur and in the disputed shop his younger brother, Mohammad Qamar Alam, and Shah Alam are carrying business of Auto Mechanic and General Mechanic Works. The Prescribed Authority has considered this aspect in details. He found that the petitioner has filed paper No. 36-C obtained from the Labour Department showing that it has been registered in the name of the petitioner and not in the name of his brothers. In case the brothers of the petitioner were carrying on business, the registration would have been in their names. The brothers of the petitioner Qamar Alam and Shah Alam did not file any affidavit. The petitioner has filed affidavit of one Balbir Singh Annexure-9 to the writ petition stating that the brothers of the petitioner are carrying on business of Auto repairs and General Mechanic Works in the disputed shop. The petitioner or his brothers could have filed the documents to show that actually they are carrying on business. The allegation of respondent No. 3 was that the shop was locked since 1972. The petitioner did not produce any documentary evidence to prove that any business transaction was carried on in the shop in dispute. The Prescribed Authority relied upon the affidavit of Jagdish Gupta, a resident of the same locality where the shop in question situates, that the shop in question remainons closed since 1972. This version has been believed by the Prescribed Authority. 7. The Prescribed Authority relied upon the affidavit of Jagdish Gupta, a resident of the same locality where the shop in question situates, that the shop in question remainons closed since 1972. This version has been believed by the Prescribed Authority. 7. THE third submission of the learned counsel for the petitioner is that the affidavit of Smt. Husna Khatoon and other documentary evidence was filed after the close of the arguments. The Prescribed Authority had allowed the application to take those documents on the record subject to payment of cost of Rs. 50 but the cost was not paid. The Prescribed Authority should not have taken into consideration the document filed by respondent No. 3. unless Rs. 50 as cost was paid. He has placed reliance upon the decision Anand Prakash v. Bharat Bhushan Rai and another, AIR 1981 P. and H. 262 (FB), wherein the Court interpreting section 35-B held that provision is mandatory and the Court is bound to disallow prosecution of suit or defence as the case may be. This was a case interpreting Section 35-B of the Code of Civil Procedure. The Prescribed Authority while allowing application to admit the documents by his order dated 30-1-1995 did not put any condition that if the cost is not paid the documents filed by the respondent No. 3 shall be ignored. It was open to the petitioner to press for the cost if it was not paid before the next date of hearing of the case. The affidavits and other documents filed, however, could not be ignored simply on this ground. 8. THE fourth submission of the learned counsel for the petitioner is that the petitioner is not sole tenant of the shop in question. The father of the petitioner, Mohd. Sultan, was a tenant in the shop in question. He died leaving behind him his brothers, Qamar Alam and Shah Alam and one sister. They are co-tenants. They have not been impleaded as a party. It is contended that after the death of Moham mad Sultan all his heirs became co-tenants and he has placed reliance upon the decision Bimal Kumar Garg v. District Judge, Dehradun and others, 1979 ARC 384, wherein it was held that the heirs of a tenant shall be determined as defined under Section 3 (a) (ii) of U. P. Act No. XIII of 1972. It is a non- residential building and therefore it will be inherited by all his heirs. In this case, admittedly, the petitioner was paying the rent to Smt. Husna Khatoon and it has not been shown that any of his other brothers was paying the rent to the landlord. The petitioner himself filed an application under Section 30 of the Act for deposit of the rent stating himself to be a tenant. Without going into the controversy as to whether other brothers of the petitioner were exercising tenancy rights, it is clear that the petitioner alone was paying rent to the landlord. Respondent No. 3, in these circumstances, had impleaded the petitioner as a sole tenant. In case his other brothers were interested in contesting the application it was open for them to file application for impleadment. There is no allegation by the petitioner that his brothers have a different interest in the property. The application was filed by respondent No. 3 on 23-10-1991. The petitioner filed written statement on 16- 9-1993. The petitioner contested the case of the allegation that the need of respondent No. 3 is not bona fide and genuine. He also con tended that in the disputed shop his brothers Qamar Alam and Shah Alam are carrying on business. In Para 33 of his written statement it was stated that his two younger brothers Mohd. Qamar Alam and Shah Alam are carrying on business of auto mechanic. He represented their case which has been duly considered by respondent Nos. 1 and 2. In Harish Tandon v. District Magistrate, Allahabad, U. P. and others,1995 (1) ARC 220 it was held that after the death of original tenant his heirs become joint tenants. The decision in the case of Mohd. Azim v. District Judge, Aligarh and others. 1985 (2) ARC 85, was overruled and the principle laid down in the case of PC. Pandey v. G. C. Paul, 1989 (2) ARC 26 was approved wherein it was held that after the death of original tenant, subject to any provision to the contrary, the tenancy rights devolve on the heirs of deceased tenant jointly. 9. THE petitioner had filed the affidavits of various persons to establish his contention that his brothers are carrying on the work of auto repair in the premises in question. He filed affidavit of Belbir Singh. The affidavits of his brothers were not filed. 9. THE petitioner had filed the affidavits of various persons to establish his contention that his brothers are carrying on the work of auto repair in the premises in question. He filed affidavit of Belbir Singh. The affidavits of his brothers were not filed. His brothers did not file any application for impleadment. They cannot be permitted to watch the proceedings and jump only after the matter is finally decided. The petitioner is the eldest brother and he nowhere states that he has not represented their case in his written statement. He has also filed affidavits in support of his contention. In these circumstances non-impleadment of other heirs or Mohammad Sultan will not vitiate the present proceeding. 10. IT has been found that need of respondent No. 3 is bona fide and genuine as he wants to set up himself in a business and he will suffer grater hardship in case the application is rejected. The petitioner has also not shown that he made any sincere effort to find out alternative accommodation. In view of the above there is no merit in the writ petition. It is accordingly dismissed. The petitioner is, however, granted three months time to vacate the accommodation in question provided he gives a written undertaking on affidavit before respondent No. 2 within two weeks from today that he will vacate the disputed accommodation and handover its peaceful possession within the time granted by this Court to respondent No. 3. Petition dismissed.