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2005 DIGILAW 314 (UTT)

Saraswati Devi v. District Judge

2005-08-01

PRAFULLA C.PANT

body2005
Judgment By means of this petition, moved under Article 227 read with 226 of the Constitution of India, the petitioners/tenants have sought writ in the nature of certiorari quashing the order dated 18-02-2003 passed by respondent No.2, and order dated 18-03-2004 passed by respondent No.1 whereby, the release application of the respondent Nos. 3 and 4 (landlords) has been allowed, and appeal arisen out of said order, has been dismissed 2. Brief facts of the case, as narrated In this petition are that, In the year 2002 respondent Nos. 3 and 4, the landlords, filed an application under Section 21(1) (a) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 for release of accommodation (shop) In question situated In Jaspur, on the ground that they need the same to open a branch of their business running in the name and style M/s Jagraj Saran and Sons, Moradabad. The petitioners filed their objections in the form of written statement against said application, before the Prescribed Authority, denying that petitioners are not running any business In the shop In question. It Is further alleged that In fact petitioner No. 4 comes every fortnight to Jaspur for providing consultation to his patients. It is further alleged that petitioner No. 1 also uses the shop for carrying business of electrical items. It was denied by the petitioners that the landlords need to open branch of their business was genuine or bona fide. It is also alleged that earlier respondent Nos. 3 and 4 instituted Small Causes Suit No. 04 of 2000 In respect of same shop which has been dismissed on 07-02-2002. In para 6 of petition, it is stated that turnover of business of the respondent Nos. 3 and 4 at Moradabad is over one crore, as such their need was not bona fide. Rather, It Is alleged, that the landlords want to sell the property after getting vacated the shop. Assailing the Impugned orders passed by Prescribed Authority and District Judge, whereby the landlords have won their case, petitioners have challenged the same through this petition on the ground that the authorities below have not considered hardship of the petitioners and also that the need of the landlords have been wrongly held to be bona fide. It is alleged that the findings of courts below are erroneous and against the law. 3. It is alleged that the findings of courts below are erroneous and against the law. 3. A counter affidavit has been filed by respondent No. 3 before this Court stating that Initially Dr. Sita Ram was tenant In the accommodation in question. Dr. Sita Ram died on 16-09-1989 leaving behind his widow Smt. Saraswati Devi (petitioner No.1), three sons, namely Arvind Mongia, Rajeev Mongia and Anil Mongia (petitioner Nos. 2, 3 and 4) and two daughter viz. Asha Gandhi and Kanchan Mehta (petitioner Nos. 5 and 6). It is further stated in the counter affidavit that Sri Arvind Mongia is a qualified Chartered Accountant and settled In Delhi. Sri Rajeev Kumar is employed in Indian Army and Sri Anil Kumar is a qualified Doctor, who is employed In Pt. Deen Dayal Hospital in Delhi. It is also stated in the counter affidavit that the shop in question is lying closed as no business is being run in it for last many years. It is further stated that respondent No.3 needs the shop for supplying its furniture to Government departments from Jaspur and claimed his need genuine and bona fide. The respondent No.3 in his counter affidavit has stated that, admittedly, Smt. Saraswati Devi (petitioner No.1) aged 73 years, actually lives in Kashipur and that is why her story that she running business in Jaspur was not accepted by the learned Prescribed Authority. As to the S.C.C. Suit No. 4 of 2000, It is stated that said suit was dismissed as the tenants deposited entire rent with interest and costs and were given protection under Section 20(4) of the U.P. Act No. 13 of 1972. Lastly, It is stated in the counter affidavit that Jaspur Is famous for wood 'Mandi' and as such need of the respondent Nos. 3 and 4 for opening branch of their furniture business (which has Its Head Quarter at Moradabad); at Jaspur is genuine. Defending the Impugned orders on the basis of various case laws, it is stated in the counter affidavit that the petition is liable to be dismissed. 4. I heard learned counsel for the parties and perused the record. 5. It is admitted between the parties that Dr. Sita Ram was the original tenant in the shop in question and after his death petitioners inherited the tenancy. 4. I heard learned counsel for the parties and perused the record. 5. It is admitted between the parties that Dr. Sita Ram was the original tenant in the shop in question and after his death petitioners inherited the tenancy. From the evidence on record, it is also clear that Smt. Saraswati Devi (petitioner NO.1), aged 73 years, lives in Kashipur, as such, learned Prescribed Authority and learned District Judge rightly disbelieved the story of the petitioners that she runs business in the shop in question situated in Jaspur. There appears no dispute as to the fact that out of the three sons of Late Dr. Sita Ram, the petitioner No.2, Sri Arvind Mongia, a Chartered Accountant, is living in Delhi and petitioner No.3, Sri Rajeev Kumar Is serving in the Indian Army. Only in respect of petitioner No.4 Anil Kumar, a doctor, it is stated that he comes every fortnight from Delhi to see his patients at Jaspur in the shop In question. The said fact is required to be seen for the purposes of comparative hardship between the landlord and tenant. Before that this Court has to see if the landlords have established their need to be bona fide before the authorities below. Both, Prescribed Authority and District Judge have given concurrent finding of fact In favour of landlords, not only on the point of their bona fide need but also on the point of comparative hardship as against the tenants. This Court, in its supervisory jurisdiction under Article 227 of the Constitution of India, cannot do re-appraisal of evidence to come to a different conclusion unless the findings are perverse or against the law. After going through the impugned orders passed by the learned Prescribed Authority and that of the District Judge, this Court is convinced that the concurrent findings given by said authorities are neither perverse nor against the law. As such, there is no scope to interfere with the findings of courts below . 6. Learned counsel for the petitioners argued that the landlords must establish their need Is genuine, on their own legs. In this connection, it is further submitted that learned authorities below have discussed conduct of the tenants and their need of the shop. As such, there is no scope to interfere with the findings of courts below . 6. Learned counsel for the petitioners argued that the landlords must establish their need Is genuine, on their own legs. In this connection, it is further submitted that learned authorities below have discussed conduct of the tenants and their need of the shop. I do agree with the contention of learned counsel for the petitioners to the extent that landlord is required to established his bona fide need on his own legs and tenants conduct does not help the landlord 9n that point. But in the present case, the tenants conduct and the fact that they are living elsewhere has been taken into account to test comparative hardship between the parties and the authorities below are not guided by that fact on the point of genuineness of need of the landlords. Opening a branch of business at Jaspur or expanding business there, cannot be said to be false In the present facts and circumstances of the case as such need Is natural with growing family members, particularly, when brothers are doing joint business. As such, need has rightly been held by courts below as bona fide need in the circumstances that exist in the present case. 7. In view of above discussion, I see no infirmity in the Impugned judgments and order passed by the Prescribed Authority and the appellate court i.e. District Judge. Accordingly, the petition is liable to be dismissed. The same is dismissed. In the interest of justice, the petitioners are allowed one month time from today to vacate the premises in question. No order as to costs.