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2006 DIGILAW 2789 (ALL)

Jai Narain Khanna v. IInd A. D. J.

2006-11-16

S.U.KHAN

body2006
JUDGMENT : S.U. Khan, J. This is tenant's writ petition arising out of eviction/release proceedings initiated by original landlord Respondent No. 3, Kashmiri Lal, since deceased and survived by legal representatives, on the ground of bona fide need u/s 21 of U. P. Act No. 13 of 1972 in the form of P.A. Case No. 70 of 1986 on the file of Prescribed Authority/Munsif, Moradabad. 2. The property in dispute is a shop situate at Station Road, Moradabad rent of which is Rs. 100 per month. Landlord pleaded that he required the shop in dispute for settling his son Shyam Sunder (now Respondent No. 3/2) in business. Landlord further stated that he was carrying on business in a shop owned by him, however, his son Shyam Sunder was not interested in the said business and he intended to settle him in an independent business. The tenant pleaded that landlord owned some other shops also. However, according to the landlord the said shops were already in tenancy occupation of other tenants. Amin was directed by the Prescribed Authority to inspect the shop in dispute. Amin reported that at the time of his inspection there were no substantial goods and merchandise in the shop in dispute. The Prescribed Authority, through order dated 18.11.1987 allowed the release application. Against the said judgment and order tenant-Petitioner filed Rent Control Appeal No. 40 of 1987. IInd A.D.J., Moradabad dismissed the appeal on 13.9.1988, hence this writ petition. 3. Prescribed Authority had directed the landlord to pay, Rs. 1,000 as compensation to the tenant. 4. In the impugned orders, I do not find least error. Every landlord is entitled to settle his son in independent business. He cannot be compelled to accommodate his son in the business which is being run by him. In this regard reference may be made to Sushila Vs. IInd Addl. District Judge, Banda and Others, AIR 2003 SC 780 and Akhileshwar Kumar and Others Vs. Mustaqim and Others, AIR 2003 SC 532 . The other shops belonging to the landlord were found by both the courts below to be let out to other tenants since long. 5. However, this writ petition has mainly been argued on the basis of subsequent events brought on record through supplementary-affidavit filed alongwith application - dated 10.9.2002 by the tenant-Petitioner. Supplementary counter-affidavit to the said affidavit has also been filed. 6. 5. However, this writ petition has mainly been argued on the basis of subsequent events brought on record through supplementary-affidavit filed alongwith application - dated 10.9.2002 by the tenant-Petitioner. Supplementary counter-affidavit to the said affidavit has also been filed. 6. The original landlord, Respondent No. 3 Kashmiri Lal died on 28.11.1988 and was substituted by his widow, two sons, i.e., Shyam Sunder and Suraj Bajaj and two daughters. In the supplementary affidavit, it has been stated that Shyam Sunder, for whose need release application was filed, was using the shop of his father after his death. It was also stated that apart from that shop Shyam Sunder had taken on rent another shop near Imperial Cinema and in the said shop also same business of cloth was being run. It was also stated that Shyam Sunder had also started A.V. Finance Company in Super Bazar in Mohalla Tarikhana a complex had been constructed by him containing 20 to 25 shops in the name and style of Nirmala Plaza. In the supplementary counter-affidavit, it was stated that the shop on which father/original landlord was doing business was being looked after by Suraj Bajaj, the other son of the original landlord and the shop near Imperial Cinema was also taken on rent by Suraj Bajaj. It has further been stated that the Finance Company was also opened by Suraj Bajaj and from the income earned from the said business Suraj Bajaj had constructed the complex of shops containing 20 to 25 shops and Shyam Sunder had no concern therewith. 7. Original landlord Kashmiri Lal had also executed a Will, a true copy of which is Annexure-C.A. 1 to the counter-affidavit. In the said Will shop in dispute was bequeathed to Shyam Sundar. The shop in which landlord was carrying on his own business was bequeathed to his wife Smt. Mohini Bajaj. In respect of the said shop it was mentioned in para 2 of the Will that the original landlord was doing cloth business in partnership with his son Suraj Bajaj. 8. The Landlord Shyam Sunder has averred in his supplementary counter-affidavit dated 21.2.2006 that the complex of 20 to 25 shops was constructed by his brother Suraj Bajaj, A.V. Finance Co. 8. The Landlord Shyam Sunder has averred in his supplementary counter-affidavit dated 21.2.2006 that the complex of 20 to 25 shops was constructed by his brother Suraj Bajaj, A.V. Finance Co. was also the business of Suraj Bajaj, in the shop in which original landlord was doing his business was also run by Suraj Bajaj and another shop near the cinema hall was also taken on rent by Suraj Bajaj. Suraj Bajaj cannot do all these businesses. Moreover, Suraj Bajaj engaged in the finance business and out of the income of such business he has constructed a cluster of 20 to 25 shops. He is not expected to run side-by-side business from the shop left behind by the original landlord also. The said shop was bequeathed by original landlord not to Suraj Bajaj but to his wife (mother of Shyam Sundar and Suraj Bajaj). Normally in India old ladies do not actively participate in the business. Accordingly, the said shop is squarely available to the Shyam Sunder. It appears to be most strange that all the aforesaid businesses are run by one brother Suraj Bajaj and the other brother, i.e., Shaym Sunder is just waiting for vacation of the shop in dispute to start the business. The Supreme Court in Sk. Sattar Sk. Mohd. Choudhari Vs. Gundappa AMabadas Bukate, AIR 1997 SC 998 has held that a family arrangement brought into existence only and only for creation of ground to evict the tenant has to be ignored by the Court. The said authority has recently been followed in Karta Ram Rameshwar Dass Vs. Ram Bilas and Others, AIR 2006 SC 362 . The same principle will apply to the instant case where it is alleged that every available shop is being used by one brother. Shyam Sunder cannot have any right over the shops built by Suraj Bajaj however he has got full right to use the shop left behind by his father and bequeathed to his (Shyam Sundar's) mother. 9. Accordingly, the subsequent event of availability of the shop, in which original landlord was doing business, to Shyam Sunder during pendency of the writ petition after the death of the original landlord in the year 1988 has changed the entire scenario. It is such an important subsequent development, which will have to be taken into consideration. 9. Accordingly, the subsequent event of availability of the shop, in which original landlord was doing business, to Shyam Sunder during pendency of the writ petition after the death of the original landlord in the year 1988 has changed the entire scenario. It is such an important subsequent development, which will have to be taken into consideration. It has totally satisfied the need of Shyam Sunder as set up in the original release application. 10. I have considered the legal position in respect of subsequent events in the matter of bona fide need of the landlord in detail in the authority in Diptee Singh v. A.D.J., 2006 (1) ARC 157. In the said authority, I have placed reliance upon several Supreme Court authorities including K. N. Agarwal v. D. Devi, 2004 (2) ARC 764. 11. Accordingly both the impugned orders are set aside and writ petition is allowed only on the ground of subsequent event of death of original landlord and availability of the shop, in which original landlord was carrying on the business, to Shyam Sunder for whose need release application was filed. 12. Para 13 of Diptee Singh authority is quoted below: I have held in Khursheeda v. A.D.J., 2004 (2) ARC 64, that while granting relief to the tenant against eviction in respect of building covered by Rent Control Act, writ court is empowered to enhance the rent to a reasonable extent. Under somewhat similar circumstances the Supreme Court in the authority in Ansuyaben Kantilal Bhatt Vs. Rashiklal Manilal Shah and Another, AIR 1997 SC 2510 enhanced the rent from Rs. 101 per month to Rs. 3,500 per month with effect from the date of the judgment of the Supreme Court. For the period during which appeal remained pending before the Supreme Court rent was enhanced to Rs. 2000 per month for some of the period and Rs. 2,500 per month for rest of the period. In the said authority release application of the landlord had been allowed by the courts below. The Supreme Court held that the landlord who had sought release of the building when he was about 54 years of age had become 87 years of age when the matter was decided by the Supreme Court hence he was not in a position to do any business. The Supreme Court held that the landlord who had sought release of the building when he was about 54 years of age had become 87 years of age when the matter was decided by the Supreme Court hence he was not in a position to do any business. This fact of old age of the landlord was taken into consideration as relevant subsequent event by the Supreme Court. 13. The shop in dispute is situate at station road, Moradabad. Moradabad is Municipal Corporation. Current rent of the shop in dispute may not be less than rupees four to five thousands per month. 14. Accordingly, it is directed that with effect from January, 2007, tenant shall pay the rent of the shop in dispute to the landlord Respondents at the rate of Rs. 2,000 per month inclusive of all water taxes etc. No further amount shall be payable in addition to Rs. 2,000 per month by the tenant. 15. It is further directed that for the period during which this writ petition remained pending and dispossession of the tenant remained stayed tenant shall pay the rent at the following rates: 1. From 1.1.1989 till 31.12.1998 (10 Years) at the rate of Rs. 600 per month, i.e., Rs. 500 in addition to the existing rent of Rs. 100 per month, which may have been paid by the tenant. 2. With effect from 1.1.1999 till 31.12.2006 (8 years) at the rate of Rs. 1,000 per month, i.e., Rs. 900 per month in addition to Rs. 100 per month, which may have been paid. 3. The total additional amount payable comes to Rs. 1,46,400. It shall be paid in four equal instalments, i.e., Rs. 36,600 which shall be paid on or before 31.3.2007, 30.6.2007, 30.9.2007 and 31.12.2007. 16. In case of failure to pay any of the instalment on the aforesaid dates this order shall stand automatically vacated and writ petition shall be deemed to have been dismissed. This direction is also in consonance with the aforesaid judgment of the Supreme Court of A. K. Bhatt v. R.M. Shah. 17. Accordingly writ petition is allowed.