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2006 DIGILAW 2942 (ALL)

SANTOSH KUMAR v. SARLA DEVI

2006-12-07

ASHOK BHUSHAN

body2006
JUDGMENT Hon’ble Ashok Bhushan, J.—Supplementary affidavit filed today in Court is taken on record. 2. Heard learned Counsel for the petitioners and Sri B. D. Madhyan, Senior Counsel assisted by Sri Satish Madhyan, Advocate appearing on behalf of the respondent. 3. By this writ petition, petitioners have prayed for quashing the order dated 12.9.2006 passed by the Additional District Judge. Room No. 8, Agra in Rent Control Appeal No. 240 of 2004 Smt. Sarla Devi v. Santosh Kumar. Proceedings under Section 21 (1) (a) of U.P. Act No. XIII of 1972 were initiated by the landlady for release of the shop in question being building No. 4/31, Baluganj. Agra. The applicant landlady’s case in the application was that the shop in question, with two rooms, kitchen on the first floor, was let out to the tenant, the landlady’s husband is doing business of Goldsmith in a shop situated in Agrawal market. Tundla. The landlady has three sons, the eldest son Satish is working with his father in goldsmith business at Tundla and there is no scope for other two sons in goldsmith business. The shop was to be released for the setting up two sons, namely, Ravi Kant Goel and Gagan Goel, who have to be set up in the automobile business in the shop in question. This was opposed by the tenant stating that the tenant is running the business since long and he has no other place to shift. It was stated that the need of the landlord is not genuine. Subsequently, the petitioners having put appearance, filed additional written statement bringing on record that the landlady had purchased two shops at Tundla and the landlady can very well use the shops purchased at Tundla. 4. The Prescribed Authority, after hearing both the parties, rejected the application holding that the need of the landlady is not genuine and bona fide. The Prescribed Authority relied on the fact that respondent landlady has purchased two shops during pendency of the application at Balaji Market, Tundla in the name of her sons Gagan Goel and Ravi Kant Goel, which can very well be utilised for her sons, hence her need was not genuine. While deciding issue No. 2, i.e. comparative hardship, the Prescribed Authority relied on the findings given on issue No. I that the need of the landlady is not bona fide. While deciding issue No. 2, i.e. comparative hardship, the Prescribed Authority relied on the findings given on issue No. I that the need of the landlady is not bona fide. The Prescribed Authority held that naturally the tenant will suffer more hardship in case of eviction. The appeal was filed by the landlady, which has been allowed by setting aside the judgment dated 14.10.2004. 5. The appellate Court, after considering the material on record, recorded finding that the need of the landlady is bona fide and genuine. The appellate Court also recorded a finding that two shops situated at Tundla, which were purchased by the landlady, were offered by the landlady to the tenant, which was not accepted by the tenant. It also relied on the fact that one another shop, situate in the very same market Baluganj Agra can be used by the tenant for running the business. The appellate Court allowed the appeal and directed the tenant to hand over the possession within three months. 6. The tenant has come up in he writ petition. Learned Counsel for the petitioners challenging the order passed by the appellate Court, contended that findings recorded by the Prescribed Authority that need of landlady is not bona fide and genuine has not been upset by appellate Court. 7. He further contends that the appellate Court has not examined the comparative hardship in accordance with the Rules and the material on record. He further submitted that the tenant is running/carrying on his business since 1973 and in the event, he is asked to vacate the shop, he will face greater hardship. 8. Learned Counsel for the petitioner has also placed reliance on the following judgement of this Court in 1998 (2) A.R.C. 430, Ashok Kumar v. VII Additional District Judge. Muzaffarnagar and others, and the judgment of the apex Court reported in 1999 Supreme Court and 2001 SCFBRC (397) Deena Nath v. Pooran Mal. 1998 (56) SCFBRC, Sree Balaji Krishna Hardware Stores v. Srinivasaiah. 2005 (1) A.R.C. Ram Sewak Shukla v. XV Additional District Judge, Kanpur Nagar and the judgment of this Court in ARC 2000 (2) 703, Heera Lal Agrawal and another v. IInd Additional District Judge, Farrukhabad and others. 9. 1998 (56) SCFBRC, Sree Balaji Krishna Hardware Stores v. Srinivasaiah. 2005 (1) A.R.C. Ram Sewak Shukla v. XV Additional District Judge, Kanpur Nagar and the judgment of this Court in ARC 2000 (2) 703, Heera Lal Agrawal and another v. IInd Additional District Judge, Farrukhabad and others. 9. Sri B. D. Madhyan, Senior Advocate appearing for the respondent contended that the appellate Court has recorded findings, after considering the material on record- He submits that the shop situate at Baluganj is in automobile market area and two sons of the landlady wanted to start automobile business, and the need of the landlady cannot be said to be not bona fide. He further submits that the landlady has already offered accommodation i.e. two shops at Tundia to the tenant. He further contends that there is another shop in the same market in which joint business is running. 10. Sri B. D. Madhyan, has submitted alternatively that even if that shop is not available that is not relevant factor for rejecting the application. He contends that no steps were taken during pendency of application by the tenant to search an accommodation which is sufficient for dismissal of the writ petition. 11. I have considered the submissions of Counsel for the parties and perused the record. 12. The Prescribed Authority rejected the release application of the landlady on the ground that the heed of the landlady is not bona fide since during pendency of the application two shops were acquired at Tundla. While considering the question of comparative hardship the Prescribed Authority observed that the need of the landlady having found not to be bona fide, there is no need to consider the question of comparative hardship since he has been carrying business since long and the need of the landlady is not bona fide. 13. The appellate Court after hearing the parties and considering the material on record came to the finding that the need of the landlady is bona fide. The release application was filed for requirement of setting two sons of the landlady namely, Ravi Kant Goel and Gagan Goel in automobile business. The shop in question is situated at Baluganj which is an automobile market in Agra city. The release application was filed for requirement of setting two sons of the landlady namely, Ravi Kant Goel and Gagan Goel in automobile business. The shop in question is situated at Baluganj which is an automobile market in Agra city. The husband of the landlady being a goldsmith has occupied a rented shop in Agrawal market, main road Tundla along with whom the eldest son of the landlady has also been working. It is categorical case of the landlady that there is no possibility of engaging other two sons in goldsmith business. Two sons have completed their education and wanted to start automobile business. The building in question has shop in the ground floor and two rooms, kitchen and latrine in the first floor. The submission which has been pressed by the Counsel for the petitioner is that the appellate Court has not set aside the findings recorded by the Prescribed Authority it is contended that the appeal could not have been allowed unless the findings- recorded by the Prescribed Authority are set aside. Reliance has been placed for this proposition by the learned Counsel for the petitioner on the judgment of this Court reported in 1998 (2) A.R.C. 430, Ashok Kumar v. VIIth Additional District Judge, Muzaffarnagar and others, and the judgment of this Court in 2000 (2) ARC 703, Heera Lal Agrawal and another v. IInd Additional District Judge, Farrukhabad and others. The proposition laid down in the above Judgements of this Court that without reversing the finding of the Prescribed Authority the appeal could not have been allowed is well settled. The question thus to be considered in this case is as to whether the appellate authority has reversed the finding recorded by the Prescribed Authority or not. 14. For coming to the finding that there is bona fide need of the landlady, the Prescribed Authority has based its decision on the fact that during pendency of the application the landlady has acquired two shops at Balajl Market Tundla. The Prescribed Authority held that the shop being available for setting up two sons of the landlady in business, the need of the landlady cannot be held to be genuine and bona fide. The case of the landlady was that two shops purchased at Balaji market, Tundla are situated at a place which is half kilometre from the main market and is not fully developed. The case of the landlady was that two shops purchased at Balaji market, Tundla are situated at a place which is half kilometre from the main market and is not fully developed. The shop which was sought to be released are situated in automobile market of Baluganj, district Agra. The appellate Court in its judgment has noted that two shops at Tundla were offered by the landlady to the tenant to run his business which offer was not accepted by the tenant. The appellate authority noticed the said fact and rightly came to the conclusion that when tenant himself has refused to accept the shop at Tundla to run his business how it can be said that the shops at Tundla are well suited for running automobile business. The need of the landlady to set up in business of her two sons who are well grown and have completed their education, cannot be denied. There is nothing wrong in landlady proposing to start automobile business in shop in question at Baluganj, Agra which is an automobile market. Every one has right to plan things to best suit one’s future and career. The landlady owning a shop situate in big city of Agra that too in automobile market can very well pray to the Court for release of the shop to set up her two unemployed sons. The appellate Court considering the above facts have to find that the need of the landlady is bona fide. The appellate Court thus has considered the materials which were relied by the Prescribed Authority on recording the findings of bona fide need and thus has proceeded to set aside the findings of the Prescribed Authority on bona fide need. The submission of the petitioner’s Counsel that the appellate Court has not set aside the finding of the Prescribed Authority thus cannot be accepted. 15. The question of comparative hardship has also been pressed before the appellate Court. The appellate Court has taken into consideration the facts that there is another shop in the same market which belong to the tenant and his brother Where joint business is being done. The appellate Court has considered the deed of partnership dated 17.11.1986 filed on behalf of the tenant and the rent note date 6.9.1990. The appellate Court has taken into consideration the facts that there is another shop in the same market which belong to the tenant and his brother Where joint business is being done. The appellate Court has considered the deed of partnership dated 17.11.1986 filed on behalf of the tenant and the rent note date 6.9.1990. The appellate Court came to the conclusion that the rent note dated 6.9.1990 bely the case of the tenant that Arun Kumar has started separate business in the shop. The appellate Court came to the-conclusion that another shop is available in which tenant can carry on his business. The appellate Court further recorded finding that the tenant has not searched alternative accommodation during pendency of the release application. Thus the question of comparative hardship was also adverted to by the appellate authority and the findings have been recorded in favour of the landlady. During the course of argument learned Counsel for the petitioner argued that the two sons of the landlady for whom the shop is to be released are engaged in money lending business. This contention has been refuted by the Counsel for the respondents and it has been submitted that there is no material on record in support of the said submission. In absence of any thing to support, the above submission of Counsel for the petitioner cannot be accepted. Learned Counsel for the petitioner has placed reliance on a judgment of apex Court reported in Supreme Court & Full Bench Rent Cases, 1998 (56) Sree Balaji Krishna Hardware Stores v. Srinivasaiah (supra). The apex Court in the said judgment set aside the findings regarding bona fide need recorded by the Court below. In the said case one shop behind the shop in issue fell vacant which was given to daughter-in-law of the landlord. The apex Court found that the shop which was behind the front shop could not be said to be unsuitable for business for glass and plywood. The above case of the apex Court was on its own facts and has no application in the present case. In the present case the shops acquired during the pendency of the application were not in the same market but were in another town namely Tundla 30 kilometres away from the automobile market. The above case of the apex Court was on its own facts and has no application in the present case. In the present case the shops acquired during the pendency of the application were not in the same market but were in another town namely Tundla 30 kilometres away from the automobile market. Another judgment relied by the Counsel for the petitioner is the judgment reported in 1999 Supreme Court and Full Bench Rent Cases, 2001 (397) Deena Nath v. Pooran Mal (supra). The apex Court had occasion to examine Section 12 of the Madhya Pradesh Accommodation Control Act, 1961. In the above case the apex Court observed that the Court is duty bound to examine not merely the requirement of the landlord as pleaded in the petition but also whether any other reasonable suited non-residential accommodation in his occupation in the city/town is available. The apex Court, in the facts of that case, took the view that the High Court rightly interfered with the findings of the Courts below regarding bona fide requirements In the said case one vacant shop was in occupation of the landlord and in the course of proceedings more vacant shop came info occupation of the landlady. The landlady on suggestion of the Court also refused to make available the tenant to occupy the shop room presently in the landlord’s accommodation. Thus the said judgment of the apex Court was on its own facts and does not help the petitioner in the present writ petition. The last judgment relied by the learned Counsel for the petitioner is Ram Sewak Shukla v. XVI Additional District Judge, Kanpur Nagar, 2005 (1) A.R.C. 237. This Court in the said judgment field that the appellate authority had jurisdiction to record different finding but it has to consider the evidence and reasonings given by the Prescribed Authority. In the said case the Prescribed Authority had took into consideration the evidence on record regarding release of the shop in tenancy of two tenants which has been vacated and could have been utilised by the landlord but instead of landlord utilising the said shop gave possession to outsider on higher rent. This Court found that the judgement of the appellate authority did not disclose consideration of the evidence considered by the Prescribed Authority. In view of the aforesaid facts of the above case the writ petition was allowed. This Court found that the judgement of the appellate authority did not disclose consideration of the evidence considered by the Prescribed Authority. In view of the aforesaid facts of the above case the writ petition was allowed. The judgment of this Court in the said case was also on its own facts and does not help the petitioner in the present case. As noticed above, the appellate Court has adverted to the reasons given by the Prescribed Authority in the present case. 16. The appellate Court recorded findings of fact after consideration of materials on record in favour of the landlady both on bona fide need and comparative hardship. This Court in exercise of its writ jurisdiction shall no re-appraise the evidence. 17. In view of foregoing discussions the order passed by the appellate Court need no interference by this Court in writ jurisdiction and the writ petition deserves to be dismissed. However, in view of the fact that the tenant has been running his business since long, the interest of justice be served in granting reasonable time to the tenant to vacate the premises. The petitioner is granted time till 30th June, 2007 to vacate the premises subject to his filing an undertaking before the Rent Control & Eviction Officer within three weeks from today. The petitioner in the undertaking shall undertake to hand over the vacant possession to the landlady on or before 30th June, 2007. Subject to this the writ petition is dismissed. ————