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2003 DIGILAW 2664 (ALL)

OM PRAKASH v. SUNIL KUMAR

2003-11-14

S.U.KHAN

body2003
S. U. KHAN, J. ( 1 ) THIS is tenants writ petition arising out of eviction/release proceedings initiated by landlord respondent Nos. 1 to 3 under Section 21 of U. P. Act No. 13 of 1992 on the ground of bona fide need. The property in dispute is a shop in tenancy occupation of the petitioner. The property in dispute was purchased by landlords respondent Nos. 1 to 3 in the year 1988. The petitioner is son of the original tenant Dharm Prakash (since deceased and survived by petitioner and respondent nos. 4 to 8) who was the tenant of the said property since before its purchase and carrying on the business in the name of Syama Crokerys. ( 2 ) IT was further alleged in the release application that father of the landlords had an accommodation measuring 18 x 150 in which father of the landlords Moti Lal was carrying on business of retail and whole sale of general merchandise and of some agencies by name of Cash and Company and was also using the back portion of the same as godown. The need set up in the release application was for Sunil Kumar and Sushil Kumar. It was further alleged that Sushil kumar was assisting in the business of his father. ( 3 ) THE prescribed authority/additional Civil Judge, Senior Division, Mirzapur, before whom the release application was filed and registered as Misc. Case No. 12 of 1995, dismissed the release application by judgment and order dated 18. 3. 1999. The landlord respondent Nos. 1 to 3 filed the appeal against the same being Misc. Appeal/rent Appeal No. 2 of 1995 under Section 22 of the act. Additional District Judge, Court No. 4 Mirzapur by judgment and order dated 23. 11. 2002 allowed the appeal and set aside the order of the prescribed authority and allowed the release application with the condition that in case the tenant desired, he could take a room in the back side of the shop in dispute of his choice or he could receive Rs. 10,000 from the landlords. ( 4 ) THIS writ petition is directed against the aforesaid judgment and order passed by the appellate court. ( 5 ) IN the release application it was also mentioned that the landlord petitioner No. 1 Sunil Kumar was carrying on business of agency of Sharbat Rooh Afza and Masala etc. 10,000 from the landlords. ( 4 ) THIS writ petition is directed against the aforesaid judgment and order passed by the appellate court. ( 5 ) IN the release application it was also mentioned that the landlord petitioner No. 1 Sunil Kumar was carrying on business of agency of Sharbat Rooh Afza and Masala etc. and stock of the same was kept in the back portion of the accommodation in which his father was mainly carrying on his business and that it caused great inconvenience to the customers and adversely affected his business. It was stated in release application that landlord respondents Sunil Kumar and Sushil kumar intended to establish a show room-cum-shop in the shop in dispute so that they could start the business on bigger level and get agency of reputed products. The accommodation in which father of the landlord is carrying on business is situate in Mohalla Dhundi Katra. ( 6 ) IT was held by the prescribed authority and argued by the learned counsel for the tenant petitioner that the landlord had ample accommodation at their disposal in Dhundi Katra and they were comfortably carrying on the business therefrom along with their father. The area of the commercial accommodation in which the father of the landlord is carrying on his business, is about 300 sqr. yards. Looking to the area of the accommodation in Dhundi Katra it is possible for the landlords, and their father to carry on different businesses from the said accommodation. However, separate business is always more profitable than businesses carried out by different persons from the same accommodation, particularly the business of agency and retail and wholesale. Every landlord and every adult member of the family of landlord has got a right to establish his independent separate business. Assisting the father or brothers in family business cannot be a ground to deny the need for separate business vide AIR 2003 SC 532 . ( 7 ) RESPONDENT Nos. 1 to 3 having purchased the property in dispute are owners and landlord of the same. They cannot be described as landlord of the property owned by their father. They cannot have an independent right in the property of their father. ( 7 ) RESPONDENT Nos. 1 to 3 having purchased the property in dispute are owners and landlord of the same. They cannot be described as landlord of the property owned by their father. They cannot have an independent right in the property of their father. ( 8 ) IN AIR 1998 SC 2696 , it has been held that : "the fact that the landlord, who seeks eviction for the benefit of a member of his family is himself occupying a building of his own, cannot operate as a bar to the landlord seeking eviction for the benefit of a member of his family, who does not occupy any premises of his own. " (para 12)In the instant case, therefore, even if the shop in dispute had been purchased by father of the landlord, he himself could file release application for the need of his sons, i. e. , respondent Nos. 1 to 3 the landlords. ( 9 ) IN the AIR 1999 SC 100 , it has been held that : "it is often said by Courts that it is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without getting possession of the tenanted premises. While deciding the question of bona fides of the requirement of the landlord, it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted himself. " (para 14) ( 10 ) IN the AIR 1999 SC 113 , following observations of the Supreme Court in (1998) 5 SCC 572 , were quoted with approval : "that the aspects of quality, size and suitability of the building have been totally put out of consideration by the courts below. We think this would frustrate the purposes of the Act. Here was a claim set up by the landlord that the non-residential premises he owned did not serve the purpose of his need of setting up a textile and cloth business and that the need could only be met in seeking eviction of the tenant from the premises sought. We think this would frustrate the purposes of the Act. Here was a claim set up by the landlord that the non-residential premises he owned did not serve the purpose of his need of setting up a textile and cloth business and that the need could only be met in seeking eviction of the tenant from the premises sought. " (para 2) ( 11 ) LEARNED counsel for the petitioner placed reliance upon the following authorities and argued that landlord did not file income tax return and other document to show their income from their existing business, hence their need for additional commercial accommodation for enhancing the income could not be said to be bona fide. (1) 1981 ARC 30 ; (2) 1981 ARC 649 ; (3) 1982 ARC 542 ; (4) 1983 ARC 464. ( 12 ) THE landlord Sunil Kumar had filed his income tax return for three years wherein yearly income was shown to be around Rs. 50,000. This fact is mentioned in the judgment of the lower appellate court at page 140 of the paper book. The income tax return of the father of the landlord has also been filed showing the yearly income to be around Rs. 1,79,000. ( 13 ) I, therefore, do not find any error in the findings of the lower appellate court regarding bona fide need of the landlord. Landlord respondents Sunil Kumar and Sushil Kumar fully proved their need. ( 14 ) AS far as the comparative hardship is concerned, the landlords offered and appellate court directed that in lieu of the sh9p in dispute the tenant could get a shop of an equal area in the back portion. Regarding this back portion tenant had himself asserted that it was situate on a wide road. The tenant had contended that it could be used by the landlord. The landlord made the offer in writing. The lower appellate court, Sri L. B. Ram, Additional District Judge, Court No. 4, mirzapur adopted a very pragmatic approach in permitting the tenant either to take back portion offered by the landlord or accept Rs. 10,000 as compensation. Awarding the compensation may substantially mitigate hardship. In appropriate cases court is entitled to award even more than two years rent as compensation. The landlords offer of alternative accommodation to the tenant just behind the shop in dispute was quite genuine. 10,000 as compensation. Awarding the compensation may substantially mitigate hardship. In appropriate cases court is entitled to award even more than two years rent as compensation. The landlords offer of alternative accommodation to the tenant just behind the shop in dispute was quite genuine. They offered that the tenant could take any room/portion of his choice. ( 15 ) ACCORDINGLY, writ petition is dismissed. ( 16 ) HOWEVER, the tenant shall not be evicted from the shop in dispute for a period of six months provided that either in two months from today, he gives option of the alternative accommodation as offered by the landlord before the prescribed authority or within the same period of two months he flies an undertaking that on or before the expiry of period of six months from today he will willingly vacate and hand over the possession of the shop in dispute to the landlord respondent Nos. 1 to 3 after receiving Rs. 10,000 as compensation. In case within two months, tenant gives option of taking the particular portion of the back side of the shop in dispute, the prescribed authority after hearing both the parties, must determine the portion which ought to be given to the tenant on the same rent in lieu of the shop in dispute. After determination of the said portion, the tenant must vacate the shop in dispute and shift in the alternative accommodation so determined within six months from today. .