Abdul Aziz (D) Through L. Rs. v. Vth Additional District Judge
2008-08-25
S.U.KHAN
body2008
DigiLaw.ai
JUDGMENT : S.U. Khan, J. This is tenants' writ petition arising out of eviction/release proceedings initiated by landlord respondent Sri Sukhdeo Gandhi, since deceased and survived by respondents No. 2 to 10 Smt. Parvati Gandhi and others on the ground of bona fide need u/s 21 of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 in the form of P.A. Case No. 72/11 of 1972. Release application was rejected through order dated 29.3.1985 passed by 1st Additional Munsif, Agra. Property in dispute is a shop situate in Mohalla Charsu Darwaja, Agra. Rent is only Rs. 22 per month. Against the Judgment and order passed by the prescribed authority, landlords filed Misc. Appeal No. 33 of 1985. Vth A.D.J., Agra allowed the appeal through judgment and order dated 28.5.1986 set aside the judgment and order passed by prescribed authority and allowed the release application. 2. This writ petition is directed against border passed by the lower appellate court. Writ petition was once dismissed in default then restored. Main point argued by learned Counsel for the petitioner is that two other shops were available to the landlord bearing Nos. 4 and 5 and situate in Loha Mandi, Agra. Initially release application was filed by original landlord Sukhdev Gandhi for his own need. However, during pendency of release application, he died and was substituted by his heirs including his widow and three sons. After death of original landlord need for his three sons, i.e., Kanhaiya Lal Gandhi, Purshottam Dass Gandhi and Bholanath Gandhi respondents No. 3 to 5, was set up. It was stated that they intended to do some stationery business from the shop in dispute. 3. Release application was amended and through amendment need of sons of deceased landlord was pleaded in accordance with Section 21(7) of the Act. In the original release application, both Abdul Aziz and Shafiquddin, the original petitioners of this writ petition were impleaded as opposite parties. After death of original landlord and amendment of the release application, tenants pleaded that the three sons of original landlord were doing business from adjoining shop and did not require the shop in dispute. 4. Lower appellate court found that Purshottam Dass Gandhi had passed M.A., B.Ed, and was working as temporary teacher in M.D. Jain Inter College, Agra. Bholanath Gandhi was doing L.L.B. at the time of decision of appeal.
4. Lower appellate court found that Purshottam Dass Gandhi had passed M.A., B.Ed, and was working as temporary teacher in M.D. Jain Inter College, Agra. Bholanath Gandhi was doing L.L.B. at the time of decision of appeal. Through the amendment of the release application, it was also stated that Ravi Gandhi son of Kanhaiyalal Gandhi was not having any shop and he also intended to do business. Tenants are doing business of printing from the shop in dispute. Lower appellate court found that other seven shops in the same building were in tenancy occupation of other tenants. 5. Landlords admitted that in Loha Mandi, they had also five shops, however, none of those shops was vacant and they were also in dilapidated condition. Lower appellate court found that out of the five shops of Loha Mandi, four were occupied by tenants and one, i.e., Shop No. 4, was vacant. In respect of another tenant of one of the shops (No. 5) in Loha Mandi, decree for eviction had been passed but had not been executed till then. In respect of Shop No. 4, landlord stated that it was in the shape of khandahar not having any roof. Lower appellate court found that Kanhaiyalal Gandhi was having commission agency for selling papers. In respect of Kanhaiyalal Gandhi, tenants pleaded that initially he was doing business from Sep Mandi, however he had vacated the said shop and thereafter opened some shop in Kainara Bazar. 6. The latter fact was denied. The shop in Sep Bazar was on rent with Kanhaiyalal Gandhi. Supreme Court in Smt. G. Kaushalya Devi Vs. Ghanshyamdas, (2000) 2 SCC 1 , has held that a tenanted shop available with the landlord cannot be taken Into consideration while considering his bona fide need. In any case, the said shop had been vacated. The prescribed authority had held that Kanhaiyalal was working as servant in Ram Prasad Book Seller Shop, however, this fact was wholly Irrelevant. Every landlord is entitled to have independent separate business. He cannot be compelled to work as servant in someone else's shop. 7. In respect of Purshottam Dass Gandhi, lower appellate court held that even if he was working as temporary teacher in a college, he could not be compelled to continue with the said Job if he intended to do business of selling books and stationery from the shop in dispute.
7. In respect of Purshottam Dass Gandhi, lower appellate court held that even if he was working as temporary teacher in a college, he could not be compelled to continue with the said Job if he intended to do business of selling books and stationery from the shop in dispute. In respect of Bholanath Gandhi, it was found that he had got himself enrolled as an advocate in 1977, however, Boholanath Gandhi stated that he was not a regular practitioner and he looked after only 7 or 8 cases concerning his family properties. 8. In this manner, lower appellate court found that the need set up by the three brothers was bona fide. I do not find least error in the said findings. The said findings are based on correct appraisal of the evidence, With respect to shops in Loha Mandi, lower appellate court found that they were in dilapidated condition and Nagarmahapalika had also issued notices for demolition. Commissioner had also inspected the said shops. Commissioner reported that shop No. 4 was vacant but was not having any roof. It was also found that there was no school or college near Loha Mandi, hence it was not suitable for selling books and stationery. 9. In respect of comparative hardship, lower appellate court found that Abdul Aziz was doing business by the name and style of Hind Printing House in another shop in Bas Darwaja and opposite party petitioner No. 2 Shaffiquddin real brother of Abdul Aziz was doing business from the shop in dispute by the name of New Art Printing House. Abdul Aziz admitted that when shop was taken on rent by him, Shaffiquddin his real brother was 6 or 7 years of age. In view of this, question of comparative hardship was decided against the tenants. 10. Even otherwise tenants did not show that they made any efforts to search any alternative accommodation. The release application was filed 36 years before. Accordingly, I do not find least error in the findings recorded by the lower appellate court. Tenants vehemently argued that landlords wanted to enhance the rent. It may be noted that in 1970s, 1980s and early 1990s it was considered almost indecent that landlord entertained any desire to enhance the rent. 11. However, now the position has changed. Supreme Court in Siddalingamma and Another Vs.
Tenants vehemently argued that landlords wanted to enhance the rent. It may be noted that in 1970s, 1980s and early 1990s it was considered almost indecent that landlord entertained any desire to enhance the rent. 11. However, now the position has changed. Supreme Court in Siddalingamma and Another Vs. Mamtha Shenoy, (2001) 8 SCC 561 , has held that entire Rent Control Act is for the benefit of tenant and provision of release on the ground of bona fide need is the only provision which treats the landlord with some sympathy. 12. Writ petition is therefore dismissed. 13. Tenants petitioners are granted six months time to vacate provided that: 1. Within one month from today petitioners tenants file an undertaking before the prescribed authority to the effect that on or before the expiry of aforesaid period of six months they will willingly vacate and handover possession of the property in dispute to the landlords-respondents. 2. For this period of six months, which has been granted to the tenants-petitioners to vacate, they are required to pay Rs. 9,000 (at the rate of Rs. 1,500 per month) as rent/damages for use and occupation. This amount shall also be deposited within one month before the prescribed authority and shall immediately be paid to the landlords-respondents. 14. In case of default in compliance of any of these conditions tenants-petitioners shall be evicted through process of Court after one month and shall also be liable to pay damages at the rate of Rs. 3,000 per month since after one month till the date of actual vacation. 15. Similarly, if after filing the aforesaid undertaking and depositing Rs. 9,000 the accommodation in dispute Is not vacated on the expiry of six months then damages for use and occupation shall be payable at the rate of Rs. 3,000 per month since after six months till actual vacation. It is needless to add that this direction is In addition to the right of the landlord to file contempt petition for violation of undertaking and execution application u/s 23 of the Act.