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2010 DIGILAW 3384 (ALL)

Pushpa Shofat v. Sarvesh Chand

2010-11-01

RAKESH TIWARI

body2010
JUDGMENT Hon. Rakesh Tiwari, J. - Heard counsel for the parties and perused the record. 2. The petitioners are tenants of shop no. 196/2, North Mohani, Mohalla Kothiyat, Civil Lines ( hereinafter referred to as the shop in dispute ) which is situated in front of Nagar Palika, Bulandshahr. Area of the shop in dispute is 11 x 14 feet. Late Sukhdev was the tenant of the shop in dispute and after his death, the tenancy devolved on his wife Smt. Pushpa Shofat-petitioner no. 1 and his sons- Pavan and Mukesh, petitioner nos. 2 and 3. 3. It is stated that petitioners have been carrying on business of photography in the shop in dispute and the respondent landlord moved an application under section 20(1)(a) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction Act), 1972, for release of the shop in dispute which was registered as Rent Control Case No. 9 of 2004. The release application was contested by the petitioner by filing their written statement. 4. The Prescribed Authority/Civil Judge (JD), Bulandshahr after considering the pleadings and evidence on record, allowed the release application vide judgment and order dated 22.11.2006. Aggrieved by the order, the petitioners preferred Rent Appeal no. 6 of 2006, which too has been dismissed by Additional District Judge, Room no. 5, Bulandshahr by judgment and order dated 15.2.2010 upholding the findings of the Prescribed Authority. 5. It appears that earlier the landlord had also instituted SCC suit no. 8 of 2003 on the ground of arrears of rent and eviction of the petitioner which had been dismissed by judgment and order dated 10.6.2005. Revision preferred against the order, had also been dismissed on 16.11.2005. 6. Contention of the counsel for petitioner is that since roof top of the building is in possession of the landlord, a suggestion has been made by the counsel that landlord may either construct the chambers for his Advocate son on the roof top or in the alternative the open space behind the shop in dispute. A third alternative given by the counsel for petitioner is that landlord may proceed to get any of the three other shops vacated which are in possession of different tenants wherein he can establish chambers for his son. 7. A third alternative given by the counsel for petitioner is that landlord may proceed to get any of the three other shops vacated which are in possession of different tenants wherein he can establish chambers for his son. 7. Per contra, Sri Ashok Bhatnagar, counsel appearing for the respondent landlord, submits that it is not open to the tenant to suggest the landlord to make new constructions for satisfying the need of establishing his son. According to him, law is settled and it is open to the landlord to proceed against the tenant for his eviction on the ground of bonafide need of the accommodation which according to him would suit his need best. 8. After hearing counsel for the parties and on perusal of the record, it appears that both the courts below have recorded concurrent findings of fact rejecting the suggestions made by the petitioner tenant which he has reiterated in this petition also. 9. The landlord requires the shop in dispute which is situated in front of the building and being on the roadside would be easily accessible. According to the landlord, it is best suited for the purpose of establishing chambers for his son who is a practising lawyer. It is not open to a tenant to suggest that landlord may construct new accommodation for mitigating the bonafide need for the reason a landlord may not be in a position to make new constructions or municipal law may not permit such construction either on the roof top or in open space left as set off behind the shop in dispute. 10. The petitioner tenant has not been able to prove his case that landlord does not have any bonafide need of the shop in dispute or that the tenant would suffer comparatively more hardships than the landlord if the shop is released in his favour. 11. In view of concurrent findings of fact recorded by the courts below, this Court is not inclined to interfere with the matter in exercise of its extra ordinary powers under Art. 226 of the Constitution. 12. At this stage, reference may also be made to the judgment rendered by this Court in Inayat Elahi Vs. 11. In view of concurrent findings of fact recorded by the courts below, this Court is not inclined to interfere with the matter in exercise of its extra ordinary powers under Art. 226 of the Constitution. 12. At this stage, reference may also be made to the judgment rendered by this Court in Inayat Elahi Vs. VIII Additional District Judge, Kanpur Nagar and others, wherein the Court has held that where tenant has been given sufficient opportunity and he had adopted dilatory tactics and on the question of bonafide need, there are concurrent findings recorded in favour of landlord, no interference is required. 13. For all the reasons stated above, the writ petition fails and is accordingly dismissed. The Prescribed Authority had granted one month's time on 22.11.2006 to the petitioner to handover peaceful vacant possession to the landlord and since then almost four years have elapsed and the petitioner has not made any effort to search for an alternative accommodation. Considering all the aforesaid facts, it is directed that petitioner will handover peaceful vacant possession of the shop in dispute to the landlord within one month from today and in case of failure, he shall pay exemplary damages at the rate of Rs. 5000/- per month for use and occupation of the shop in dispute as he has lost from both the courts below. No order as to costs. Petition Dismissed.