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Allahabad High Court · body

2001 DIGILAW 565 (ALL)

MAHABIR PRASAD v. JAI DAYAL DALMIA

2001-05-24

B.K.RATHI

body2001
B. K. RATHI, J. ( 1 ) THE premises in dispute is western portion of premises No. 73/15. Collectorganj, Kanpur nagar, consisting of one godown, one gaddi attached with a kothari and a varandah and open space on the ground floor. The respondent No. 1 is the landlord of the said premises and he moved an application for release of the same under Section 21 (1) (a) of U. P. Act No. XIII of 1972 alleging that his son, Shiv Hari Dalmia is without any employment and he want to establish the business of lubricant oil in the disputed accommodation. It was also pleaded that the locality is ideal for the said business. The application for release was opposed by the petitioner. ( 2 ) THE learned prescribed authority, respondent No. 2 rejected the application for release on 23. 2. 1981 by judgment. Annexure No. 6 to the writ petition. Aggrieved by it, the respondent No. 1 filed appeal under Section 22 of the Act being appeal No. 22 of 1981. The said appeal has been allowed by the respondent No. 3 on 27. 1. 1992. Annexure No. 15 to the writ petition and the premises in dispute has been released in favour of the respondent No. 1. Aggrieved by the order of the respondent No. 3, the petitioner has filed the present writ petition invoking the extra-ordinary Jurisdiction of this Court under Article 226 of the Constitution of India. ( 3 ) I have heard Sri P. N. Saksena, learned counsel for the petitioner. Sri Rajesh Tandon, senior advocate, assisted by Sri C. K. Parekh, learned counsel for the respondent No. 1. ( 4 ) THE first question that arise for decision in this appeal is whether the finding of the appellate court that the need of the respondent No. 1 of the premises in dispute is genuine and bona fide is correct and can be maintained. It has been argued by Sri P. N. Saksena, learned counsel for the petitioner that in application for release, Annexure No. 1 to the writ petition, the only need alleged is to establish Shiv Hari Dalmia, the son of the respondent No. 1 in lubricant oil business in premises in dispute. That it was further pleaded that for that business, the respondent No. 1 need one room and show, room for the office and big godown for storing materials. That it was further pleaded that for that business, the respondent No. 1 need one room and show, room for the office and big godown for storing materials. However, the petitioner pleaded that Shiv Hari Dalmia is already engaged in the business of firm M/s. Moti lal Bhagirath Mal and, therefore, there is no requirement for him. The petitioner also pleaded that the respondent No. 1 got one godown released in his favour in 1969 and it was let out to m/s. Banarasi Das Dwarika Das. It was also pleaded that there is gaddi in possession of the landlord for carrying on business. That Brij Mohan Dalmia and Sheo Mohan Dalmia are co-owners of the premises and the application for release is not maintainable. ( 5 ) REGARDING the godown released in the year 1969, it is pleaded by the landlord that it was not let out. However, it is not fit for the business of the lubricant oil. As regards the firm M/s. Moti lal Bhagirath Mal, it was pleaded in para 5 of the affidavit of Shiv Hari Dalmia. Annexure No. 2 to the writ petition, that it is a partnership firm and the respondent No. 1, his son and two nephews are partners in the same. Regarding gaddi, it was pleaded that it is being used by M/s. Moti Lal Bhagirath Mal. ( 6 ) AGAIN in another affidavit, Annexure No. 3 to the writ petition, the son of the landlord pleaded that in the firm M/s. Moti Lal Bhagirath Mal had five partners, namely. Jai Dayal Dalmia, landlord, his son, the deponent and brother Umesh Krishna Dalmia, Sheo Mohan Dalmia and brij Mohan Dalmia. That he wants to start the separate business for himself. A new plea was also raised in the affidavit that godown which was released in favour of the landlord and the gaddi of m/s. Moti Lal Bhagirath Mal cannot be used by the son of the landlord for the reason that gaddi belongs to M/s. Moti Lal Bhagirath Mal and the said godown is in the back side and is used as store-cum-godown and it is not fit either for gaddi or for show room. That in order to reach the said godown, the petitioner has to go and pass through the portion of Sheo Mohan and Brij mohan Dalmia, who are completely separate from the landlord. That in order to reach the said godown, the petitioner has to go and pass through the portion of Sheo Mohan and Brij mohan Dalmia, who are completely separate from the landlord. That from the accommodation in dispute, there can be passage to the godown and also to the stair case leading to the residential portion of the petitioner. It was further alleged that a will was executed by late Bhagirath Mal, who left two sons, namely, Jai Dayal Dalmia, respondent No. 1 and Gaja Nand Dalmia. The will has been acted upon and the properties have been partitioned and Shiv Mohan Dalmia and Brij mohan Dalmia are not co-owners of the premises in dispute. ( 7 ) IT has been argued by the learned counsel for the petitioner that the landlord again changed the case in affidavit, Annexure No. 4 to the writ petition, in which it was pleaded that the assets and liabilities of the firm, M/s. Moti Lal Bhagirath Mal has exclusively come to the landlord. That half portion of the gaddi used by M/s. Moti Lal Bhagirath Mal is being used by this firm and even it is not sufficient for the business of that firm. It, therefore, cannot be used for establishing the business by the son of the landlord, who want to start a separate business. That there was complete partition between the respondent No. 1 and sons of his brother. The petitioner is paying rent to the respondent No. 1 and his tenant. Therefore, has right to move an application. It was further pleaded in this affidavit that there is no staircase for going to the first floor where the respondent No. 1 resides and the respondent No. 1 is using the staircase of Sri Shiv Mohan dalmia. The respondent No. 1 will also construct new staircase from the portion in dispute. There is also no rasta for going to the back portion of the house and the respondent No. 3 and other tenants are using the portion of Shiv Mohan Dalmia for going to the back portion. The rasta is also to be constructed through the disputed portion. ( 8 ) THE allegation of the petitioner that three rooms on the ground floor are also lying vacant have also been denied in para 3 of the affidavit. Annexure No. 5 of the writ petition. The rasta is also to be constructed through the disputed portion. ( 8 ) THE allegation of the petitioner that three rooms on the ground floor are also lying vacant have also been denied in para 3 of the affidavit. Annexure No. 5 of the writ petition. On the basis of these allegations and affidavits, it has been argued by the learned counsel for the petitioner that the landlord has changed the case at every stage ; that there is sufficient accommodation in possession of the landlord and there is no need for the premises in dispute. The finding of the comparative hardship has also been challenged. ( 9 ) IT is no doubt correct that initially the landlord only alleged that he has to settle his son in the business in the disputed premises. Later on he disclosed that his son is partner in business of m/s. Moti Lal Bhagirath Mal in which there are five partners. Later on, it was alleged that the firm. M/s. Moti Lal Bhagirath Mal came to the share of the landlord. However, it has been argued on behalf of the respondent No. 3 that the release application is to be decided on the basis of the affidavits. In Manohar Lal Sharma v. IXth Additional District Judge. 1990 (1) ARC 382, it was observed by this Court that in the matter of rent control, the pleadings need not be strictly construed. The rent control authorities are required to look into the evidence adduced by the parties. This observation was made by this Court in different circumstances. It does not mean that the need is not required to be pleaded in the pleadings and the landlord can be permitted to change the need at every stage and to suppress the correct facts. Unless the landlord comes to the court with clean hands, the application for release cannot be allowed. ( 10 ) AS already discussed above in this case, in the application the need to settle the son has been mentioned. Later on in affidavits, the need have been changed and it was pleaded that it is required for construction of staircase and rasta for going to the back portion. This changed stand appear to have been taken feeling the weakness in his case by the landlord. ( 11 ) AS regards the other business as well the different stands were taken. This changed stand appear to have been taken feeling the weakness in his case by the landlord. ( 11 ) AS regards the other business as well the different stands were taken. The release application is totally silent on this point. However, in the affidavit it has been mentioned that in the firm, m/s. Moti Lal Bhagirath Mal, there is five partners. Later on, it was pleaded that the petitioner and his son and nephew was partners. Later on it was pleaded that assets and liabilities of M/s. Moti Lal Bhagirath Mal exclusively came to the petitioner. All these different facts were pleaded by the son of the landlord in his affidavits and not by the landlord. ( 12 ) AS regards the accommodations available, there is also different pleadings. Admittedly, a godown came in possession of the landlord in the year 1969. Nothing was mentioned regarding this godown in the application as to why it is not suitable. The petitioner has filed two photographs before the appellate court and have filed their copies in this Court, which are annexure Nos. 13 and 14 to the writ petition, which show that a shop and godown in the back side of the premises is available to the petitioner. It is contended that there is no market in the backside. However, the petitioner alleged that there is 100 ft. road in front of the said godown and the shop. This fact has not been denied. This godown and shop, therefore, cannot said to be unsuitable for lubricant oil business. Therefore, this is also alternative accommodation is available to the landlord to settle his son in the business of lubricant oil. ( 13 ) THE learned counsel for the petitioner has referred to the decision of N. S. Dutta and others v. VIIth Additional District Judge, Allahabad, 1984 ARC 113. In this case, Brij Kishore Tandon filed an application for release against N. S. Dutta alleging that he has to settle his son in his independent business, who is unemployed and unsettled in life for which the premises was required. It was found that the son has share in the Kashi Ornament business. It was held that the mere fact that son has share in the business does not affect the maintainability of the application for release. The son has right to establish himself in the independent business. It was found that the son has share in the Kashi Ornament business. It was held that the mere fact that son has share in the business does not affect the maintainability of the application for release. The son has right to establish himself in the independent business. This authority was later on followed in the number of cases where - in it has been held that the fact that the son is also carrying on the business in partnership with the other members of the family is not material as he has right to settle himself in an independent business. Reference has been made to M/s. Deep Chand Nem Chand Jain and others v. Prescribed Authority, A. D. M. (E), Saharanpur and others, 1980 ARC 479 and Pramod Kumar Verma v. VIth Additional District Judge, Bijnor and others, 2001 (1) ARC 185. It is no doubt true that every person has right to set up his independent business and the release application cannot be rejected for the reason that the person for whom the need is pleaded is already a partner in some other business. However, in the present case there is alternative accommodation available for starting business of lubricant oil for the son of the landlord. Therefore, the need of the landlord for the accommodation in dispute is not genuine and bona fide. ( 14 ) THE respondent No. 1 has not properly considered the alternative accommodation. He has also not referred to the photographs, Annexure Nos. 13 and 14 to the writ petition, and have not considered the same. ( 15 ) I, therefore, find that there is no bona fide need of the respondent No. 1 for the premises in dispute. If it is so the question of balance of hardship does not arise for consideration. In my opinion, the respondent No. 3 was not justified in finding that the need of the respondent No. 1 is bona fide. ( 16 ) THE order of the respondent No. 3 also suffers from another illegality. If it is so the question of balance of hardship does not arise for consideration. In my opinion, the respondent No. 3 was not justified in finding that the need of the respondent No. 1 is bona fide. ( 16 ) THE order of the respondent No. 3 also suffers from another illegality. He has not awarded the compensation as required by the proviso to sub-section (1) of Section 21, which is as follows : "provided further that if any application under clause (a) is made in respect of [any building let out exclusively for non-residential purposes], the prescribed authority while making the order of eviction shall, after considering all relevant facts of the case, award against the landlord to the tenant [an amount not exceeding two years rent] as compensation and may, subject to rules, impose such other conditions as it thinks fit. " ( 17 ) THE petition is accordingly allowed and the order of release, Annexure No. 15 to the writ petition passed by the respondent No. 3 is quashed. .