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2008 DIGILAW 1136 (ALL)

RISHI KUMAR JALAN v. IIIRD A D J BULANDSHAHR

2008-05-23

DILIP GUPTA

body2008
( 2 ) THE records of the writ petition indicate that the landlord had filed the application under section 21 (1) (a) of the Act for eviction of the tenant from the shop in dispute situated at 92, Chowk, Bulandshashr mentioning inter-alia that the landlord was doing Commission Agent business from the Mandi Sthal situate in Market Fatehganj from where he purchased fruits and vegetables from the farmers and distributed it to the small venders, who would sell them during the course of the day and thereafter pay the price to the landlord late in the evening, who would then make payment to the farmers after deducting his commission; that for the said purposes, the landlord had to engage an Accountant to maintain the Cash Registers, Ledgers and Account-Book; that the landlord started facing problems when the Mandi Sthal was shifted to a place 3 kms. away from the city because it was then not possible to safely take the cash back home from the new Mandi Sthal and that the landlord also required a shop having a convenient approach because he was the sole operating correspondent for the daily newspaper "hindustan" for district Bulandshahr and he was also a member of the Telephone Department Advisory Committee, Bulandshahr. The landlord, therefore, asserted that he bona fide required the shop in dispute and that he was likely to suffer greater hardship in the event the application was rejected. ( 3 ) THE tenant filed objections stating that the need of the landlord was not bona fide as the landlord had the following accommodations available with him which were sufficient to meet his requirement : (i) Residential House at 117, Sheetalganj, Bulandshahr. (ii) Residential House at 152, Satha, Bulandshahr. (iii) 1 Commercial Shop at Fatehganj, Bulandshahr. (iv) 3 Commercial Shops at Dal Mandi, Bulandshahr. (v) 2 Commercial Shops at Nai Mandi, Bulandshahr. ( 4 ) THE Prescribed Authority on the basis of the evidence on record found that the landlord bona fide required the shop and that none of the accommodation pointed out by the tenant was available to the landlord for satisfying his need. The Prescribed Authority also found that the landlord was likely to suffer greater hardship in the event the application was rejected. ( 5 ) THE tenant filed an appeal under section 22 of the Act for setting aside the aforesaid order of the Prescribed Authority. The Prescribed Authority also found that the landlord was likely to suffer greater hardship in the event the application was rejected. ( 5 ) THE tenant filed an appeal under section 22 of the Act for setting aside the aforesaid order of the Prescribed Authority. The Appellate Court found that the landlord had many residential and commercial buildings and, therefore, his need was not bona fide. It accordingly set aside the order of the Prescribed Authority and rejected the application filed by the landlord under section 21 (1) (a) of the Act. ( 6 ) DURING the pendency of the writ petition, a supplementary counter affidavit was filed by the tenant with the averment that the landlord had purchased a house at Mohalla Kothiyan, Police Lines, Bulandshahr, which would satisfy the requirement of the landlord. A supplementary rejoinder affidavit has been filed by the landlord wherein the factum of purchase of this house has been admitted, but it has been stated that since petitioners two sons and wife had died in the house at 117, Sheetalganj, Bulandshahr he sold this house and from the sale proceeds and by adding some more amount from his savings and loan from the Bank, he purchased the new residential house at Mohalla Kothiyan Police Lines. It was also asserted that from the said residential house, it was not possible to do any business. ( 7 ) SRI Ashok Bhatnagar, learned Counsel for the petitioner-landlord submitted that none of the residential and commercial shops pointed out by the tenant could be utilized by the landlord for his needs and the Prescribed Authority had recorded a categorical finding to this effect after a proper appraisal of the evidence on record, but the Appellate Court in a cursory manner without adverting to the findings recorded by the Prescribed Authority, has recorded a finding to the contrary. He submitted that the landlord bona fide required the shop in dispute and he was likely to suffer greater hardship in the event the application was rejected. ( 8 ) SRI B. D. Mandhyan, learned Senior Counsel appearing for respondent-tenant submitted that the new Mandi Sthal was hardly 3 Kms. away from the city and, therefore, the landlord did not require the shop in dispute. ( 8 ) SRI B. D. Mandhyan, learned Senior Counsel appearing for respondent-tenant submitted that the new Mandi Sthal was hardly 3 Kms. away from the city and, therefore, the landlord did not require the shop in dispute. He further submitted that even otherwise the landlord had other accommodation from where he could satisfy his need and, therefore, the Appellate Authority committed no infirmity in allowing the appeal. It is also his contention that during the pendency of the writ petition, the petitioner had purchased a building in Mohalla Kothiyan from where the petitioner could satisfy his requirement. ( 9 ) I have considered the submissions advanced by learned Counsel appearing for petitioner-landlord and the learned Senior Counsel for the respondent-tenant and have perused the materials available on the record. ( 10 ) THE tenant has pointed out that the landlord had available certain accommodations from where his need could be satisfied. The Prescribed Authority elaborately dealt with these accommodations. Regarding the residential House No. 177, Sheetalganj, Bulandshahr, the Prescribed Authority found that the ground floor had two tenants Gayatri Devi and Hanuman Prasad and there was no further accommodation available, while on the first floor, the family of the landlord resided. This house is situated in a lane and is a portion of an old big house having a common passage for several people. The need of the landlord for commercial purposes, therefore, could not be satisfied from this house and the landlord cannot also be compelled to use the residential building for commercial purposes. Regarding House No. 152, Satha, Bulandshahr, the Prescribed Authority found from the report of the Court Amin and the affidavit filed by the landlord that the house was in a dilapidated condition without any roof and was not suitable for inhabitation and that it would also require a lot of money for repairs. Regarding the shop at Fatehganj, Bulandshahr, the Prescribed Authority found that the landlord was not the owner of this shop and nor did he have any share in the same. Regarding the three shops at Dal Mandi, Bulandshahr, the Prescribed Authority found that the landlords wife had 1/3rd share and that all the shops were in occupation of the tenants. Regarding the shop at Fatehganj, Bulandshahr, the Prescribed Authority found that the landlord was not the owner of this shop and nor did he have any share in the same. Regarding the three shops at Dal Mandi, Bulandshahr, the Prescribed Authority found that the landlords wife had 1/3rd share and that all the shops were in occupation of the tenants. Regarding the two shops at Nai Mandi Sthal, Bulandshahr, the Prescribed Authority found the landlord was a licensee of two shops A-3 and B-16, which were situated outside the city area and did not met the requirement of the landlord as the landlord could not conduct his business there which necessitated the shifting of his business to the city. The Prescribed Authority also recorded a categorical finding that the landlord was likely to suffer greater hardship in the event the application was rejected because during the pendency of the application, the tenant made no effort whatsoever to search an alternative accommodation. ( 11 ) THE Appellate Authority, however, in respect of the House at Sheetalganj, found that though Gayatri Devi was still continuing as a tenant, but there was no concrete evidence to show that Hanuman Prasad was also continuing as a tenant. In respect of the House of Mohalla Satha, the Appellate Court observed that though the contention of the landlord was that the house was in a dilapidated condition and could not be used for the purposes of doing business without spending huge amount and that the house was situated in a thickly populated lane, but still a person with ordinary prudence would have utilized the said place for the purposes mentioned by him in the release application. Regarding the requirement of the landlord for having a proper place for meeting people since he was a correspondent in the newspaper, the Appellate Court observed that a person having a big residential house would certainly have some place in the house to meet the guests and, therefore, he could satisfy this particular need from his residential house. Regarding the shop at Fatehganj, Bulandshahr, the Appellate Court found that the wife of the landlord had a share in that shop and, therefore, the landlord could utilize the shop as the wifes brothers had shifted their place of of business to the new "maandi Sthal. Regarding the shop at Fatehganj, Bulandshahr, the Appellate Court found that the wife of the landlord had a share in that shop and, therefore, the landlord could utilize the shop as the wifes brothers had shifted their place of of business to the new "maandi Sthal. In such circumstances, the Appellate Court found that the landlord did not bona fide require the shop in dispute. ( 12 ) LEARNED Counsel for the petitioner-landlord submitted that the landlord had succeeded in establishing that it was necessary for him to have a shop in the city since the Mandi Sthal had shifted 3 Kms. away from the city, and none of the accommodations mentioned by the Appellate Authority could be utilized by the landlord for satisfying the need set-up in the release application. ( 13 ) A categorical finding of fact that had been recorded by the Prescribed Authority that the landlord could not conduct his business from the New Mandi Sthal which was about 3 Kms. away from the City. The Appellate Authority has not upset this finding and has placed emphasis only on the other accommodations from where the landlord could do his business. ( 14 ) THERE is nothing on the record to indicate that the tenant Hanuman Prasad had vacated the shop occupied by him at Sheetalganj, Bulandshahr. The Appellate Authority had observed that he was no longer a tenant since the landlord did not produce the ration card or the voter list which could have shown that Hanuman Prasad was still continuing as a tenant even though the household articles were found in that room. The finding recorded by the Appellate Authority seeks to upset the finding recorded by the Prescribed Authority without any cogent reason and is based only on surmises and conjectures. In fact it was for the tenant to prove that Hanuman Prasad had vacated the accommodation but no evidence was filed by him. The finding recorded by the Appellate Authority regarding the dilapidated house at Satha, Bulandshahr cannot also be sustained because the landlord cannot be compelled to make substantial repairs in the dilapidated house for doing his business from that place. The shop at Fatehganj, Bulandshahr was not in the ownership of the landlord and his wife had only had 1/3 rd share. The landlord cannot also be compelled to do business from that shop. The shop at Fatehganj, Bulandshahr was not in the ownership of the landlord and his wife had only had 1/3 rd share. The landlord cannot also be compelled to do business from that shop. It is, therefore, clear that the landlord did not have any other suitable accommodation from where he could satisfy the need set up in the release application. ( 15 ) LEARNED Senior Counsel for the respondent submitted that during the pendency of the wtite petition, the landlord had purchased a house at Mohaalla Kothiyan, Bulandshahr from where his need could be satisfied. Learned Counsel for the petitioner pointed out that the in rejoinder affidavit, the landlord has asserted that he had purchased the said house after disposing the house at Sheetalganj since the petitioners two sons and wife had died in that house and that the landlord cannot be compelled to do commercial activity from the said residential house. There is substance in the contention of learned Counsel for the petitioner and it cannot be said that this residential accommodation should be utilized for commercial purposes. Even otherwise, this subsequent event had taken place not during the pendency of the release application before the Prescribed Authority or during the pendency of the appeal, but had taken place during the pendency of the writ petition. The subsequent event, therefore, cannot be taken into consideration. ( 16 ) IN view of the aforesaid, the finding, recorded by the Appellate Court that the landlord had other suitable accommodation from where his need can be satisfied, cannot be sustained and is accordingly set aside. ( 17 ) THE Prescribed Authority had found that the landlord was likely to suffer greater hardship in the event the application was rejected. The Prescribed Authority had taken into consideration the fact that during the pendency of the application, the tenant had not made any effort to search out any alternative accommodation. This finding is supported by the decision of this Court in Faiyaz Khan v. 2nd Additional District Judge, Jnansi and others, 2006 (62) ALR 908. wherein it was observed:- "concept of comparative hardship cannot be stretched to the extent of depriving the landlord of his property even if landlord is in real and imminent need. It has been brought on record that in adjoining town Dr. Amin was having a clinic even though he asserted that he attended that only off and on. wherein it was observed:- "concept of comparative hardship cannot be stretched to the extent of depriving the landlord of his property even if landlord is in real and imminent need. It has been brought on record that in adjoining town Dr. Amin was having a clinic even though he asserted that he attended that only off and on. In any case tenant did not show that he made any efforts to search alternative accommodation after filing of the release application. As held by the Supreme Court in B. C. Bhutada v. G. R. Mundada, AIR 2003 SC 2713 . this by itself was sufficient to tilt the balance of hardship against the tenant. " ( 18 ) THE writ petition, therefore, succeeds and is allowed. The judgment and order dated 10th May, 2000 passed by Appellate Authority is set aside and the order dated 20th April, 1996 passed by Prescribed Authority is restored. ( 19 ) THERE shall be no order as to costs. Petition Allowed. .