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2010 DIGILAW 784 (ALL)

Abdul Muqtadir v. Pratap Narain Tandon

2010-03-09

DEVENDRA PRATAP SINGH

body2010
JUDGMENT Hon'ble Devendra Pratap Singh,J. Heard learned counsel for the parties. 2. This petition is directed against an order dated 17th December 2005 passed by the appellate authority modifying the judgment of the Prescribed Authority and releasing only a portion of the disputed shop in favour of the petitioner landlord. 3. The petitioner landlord filed an application under Section 21(1)(a) of U.P. Act No. 13 of 1972 (here-in-after referred to as the 'Act') before the Prescribed Authority which was registered as P.A. Case No.22 of 1994 inter alia stating that the contesting respondent is a tenant of the disputed shop at Rs.500/- per month and the same was let out in July 1977 while the petitioner was a student. After completing his education, he searched for a suitable job in vain and therefore, he requested the respondent tenant to vacate the disputed shop as he wanted to start a business of establishing photocopy machine and a Public Call Office in the disputed shop for which he had already arranged for a loan, but despite the undertaking to vacate it in a year's time, he did not vacate it and therefore, the release application was filed in December 1994 and he had also defaulted in payment of rent since January 1992. 4. The respondent tenant filed his objections in August 1998 inter alia stating that the shop in dispute was at a monthly rent of Rs.200/- per month and the petitioner is engaged in the profession of astrology and he is running his footwear business from the disputed premises and he had other shops which had been let out during pendency of the application. 5. The parties led their respective evidences and finding that the need was genuine and bonafide and also that the petitioner landlord would suffer greater hardship, the Prescribed Authority allowed the release application vide order dated 28th of September 1999. 6. Aggrieved, the respondent tenant preferred an appeal which was dismissed vide order and judgment dated 13.12.2004. Both the orders were subjected to challenge before this Court in Writ Petition No.1056 of 2005 mainly on the ground that the courts below have failed to exercise the jurisdiction vested in them by not considering the question as to whether part release of the shop would have satisfied the need of the landlord. Both the orders were subjected to challenge before this Court in Writ Petition No.1056 of 2005 mainly on the ground that the courts below have failed to exercise the jurisdiction vested in them by not considering the question as to whether part release of the shop would have satisfied the need of the landlord. A learned Single Judge of this Court found that under law the courts below were obliged to consider this aspect and therefore it remanded the matter only on this aspect to the appellate court. After the partied had led their respective evidence, the appellate court partly allowed the appeal and released half of the shop in favour of the petitioner landlord by the impugned order. 7. It is contended on behalf of the petitioner that keeping in mind the dimensions of the shop and the nature of the need set up by the petitioner, release of half of the shop would not satisfy the need. It is also urged that for the last 16 years since the release application had remained pending, no effort has been made by the respondent tenant to search for any alternative accommodation. It is admitted to the parties that the dimensions of the shop are 8' x 10' where the opening towards road is 8'. Originally the landlord had sought to start the business of electro-stat machine and a PCO, as the premises were near the District Court but during the pendency of the application, large number of such shops had already opened and therefore that business became unprofitable and as such he decided to open a shop for selling daily consumable items. This claim has aparently been proved through evidence before the Appellate Court which has also found that the tenant cannot force the landlord to start a business of his choice. By passage of time, the need of establishing a particular kind of business may undergo change and the landlord was fully justified in seeking to change the business he wanted to establish due to passage of time. If the shop is divided into two, taking into account the partition wall and place for shutter or door, the opening of each shop would come to less than 3' which cannot be said to be sufficient for running a general merchandise shop as not more than one consumer would be able to stand at the counter. If the shop is divided into two, taking into account the partition wall and place for shutter or door, the opening of each shop would come to less than 3' which cannot be said to be sufficient for running a general merchandise shop as not more than one consumer would be able to stand at the counter. The appellate court has considered the hardship of the tenant in the growing town of Shahjahanpur and has presumed that the tenant would have to pay a hefty amount as premium for renting a shop. There is nothing on record to show that any effort was made by the tenant to search for an alternative accommodation. Legal notice can be taken of the fact that under Rule 10 of the Rules framed under the Act, preference is given to such a tenant who is sought to be evicted through a release application. Therefore, this finding that a hefty premium would have to be paid by the tenant to search for an alternative accommodation does not stand to reason because under the Act, no tenant is required to give any premium in case of allotment of any premises. 8. Considering all the facts together, the Court has no doubt to hold that part release, in the circumstances of the case, would notsq meet the need of the petitioner landlord and the reasons given by the appellate court cannot be accepted. For the reasons above, this petition succeeds and is allowed and the impugned judgment of the appellate court is set aside and that of the Prescribed Authority is restored. 9. In the circumstances of the case, no order as to costs.