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2010 DIGILAW 821 (ALL)

Gaya Prasad v. Special Judge (SC/ST) Act, Gonda

2010-03-12

ANIL KUMAR

body2010
JUDGMENT Hon'ble Anil Kumar, J. Heard Sri Q.M. Haque, learned counsel for the petitioner and Sri Pyush Kumar Agarwal , learned counsel for the respondents. 2. Factual matrix of the present cae are that one Sri Umrao Lal, who was the owner-landlord, moved an application under Section 21(1) (a) of the U.P. Urban Buildings ( Regulation of Letting, Rent and Eviction) Act , 1972 ( Act n. 13 of 1972) for release of shop which is situated in Galla Mandi Mohalla Rani Bazar , Bara Gaon, Gonda. required for his grand sons, namely, Vishnu Kumar , Krishna Kumar and Shyam Sunder, who are grown up and need to run Galla business, and on the basis of the same P.A. Case no. 48 of 1995 was registered before Civil Judge (Senior Division), Gonda . 3. The petitioner/tenant filed his written statement, disputing the allegations made in the release application and specifically stating therein that Vishnu Kumar is running rice, pulse and oil Mill in the name of Vishnu Rice Mill in Mohalla Baragaon Gonda from the last seven years, Krishna Kumar is running offset Printing and Computer Designing business in Jai Hind Complex Lucknow in the name of V.A.N.P.A.C.- Perfect Printer System and the third one Shyam Sunder is working as a partner in firm known as Ram Deo- Onkar Mall Rice Pulse and Oil Mill in Mohalla Baragaon , Gonda thus none of the grandsons of the landlord are unemployed , so need as set up by the landlord for release of the premises in question is neither genuine nor bona fide rather the same is artificial one. During the course release application Umrao Lal had died so his son Gakul Chandra was substituted in his place. After exchange of pleadings and other documentary evidence, the Prescribed Authority by order dated 4.5.1998 had dismissed the release application. 4. The order dated 4.5.1998 passed by the Prescribed Authority by which the release application was dismissed, landlord filed an appeal ( Appeal No. 04 of 1998) before Special Judge, S.C./S.T. Act,Gonda . After exchange of pleadings and other documentary evidence, the Prescribed Authority by order dated 4.5.1998 had dismissed the release application. 4. The order dated 4.5.1998 passed by the Prescribed Authority by which the release application was dismissed, landlord filed an appeal ( Appeal No. 04 of 1998) before Special Judge, S.C./S.T. Act,Gonda . During the pendency of the appeal, an amendment application was moved by which release application was sought to be amended inter alia on the ground that landlord's son Krishna Kumar had completed his technical education( Engineering) but still he is unemployed as such the shop in question which is in tenancy of the petitioner is required for business of his son Krishna Kumar. The said application was opposed by the tenant but same was allowed and accordingly an amendment was made in the release application. Thereafter, petitioner- tenant filed additional written statement stating therein that Krishna Kumar had established his business and running Computer Printing and Designing at Lucknow as such need which was now set up by the landlord in release application for releasing the premises in question is not genuine. 5. The appellate authority by order dated 23.2.2008 had allowed the appeal and set aside the order dated 4.5.1998 passed by the prescribed authority and consequently allowed the release application under Section 21(1) (a) of the Act, while allowing the appeal, the appellate authority had given the following findings :- (a) It is not disputed on behalf of the respondent (tenant) that Sri Krishna Kumar had completed his technical education rather it has been admitted by the respondent that Krishna Kumar is not in any government services. (b) Respondent had admitted this fact that Krishna Kumar after completing his technical education was doing computer business at Lucknow and on the basis of documentary evidence it is clearly established that Kirshna Kumar is doing business in rental premises at Lucknow and in the era of competition, the same is not up to the mark at Lucknow so he wants to do his business at Gonda in order to get better result. (c) On the basis of Commissioner report, it is established that respondent ( tenant) has got his own house at Rani Bazar in which sufficient accommodation to do the medical business. (c) On the basis of Commissioner report, it is established that respondent ( tenant) has got his own house at Rani Bazar in which sufficient accommodation to do the medical business. (d) On the basis of documentary evidence it is established that during the pendency of litigation in question in district , many complex were constructed like Meena Complex, Dubey Complex , Kamla complex, Shukla Complex and Tomson Complex for business purpose but the respondent (tenant) had neither made any effort to establish his business in the aforesaid complex nor at ant place. 6. The order dated 23.2.2008 passed by the appellate authority/ Special Judge, SC/ST Act, Gonda is challenged by the petitioner before this Court by means of present writ petition . 7. Sri Q.M. Haque, learned counsel for the petitioner while assailing the order dated 23.2.2008 passed by the appellate authority has submitted that the prescribed authority had found that need of grandsons of the original landlord Umrao Lal, who had moved release application was neither genuine nor bona fide and on the basis of the same the release application was dismissed, the said findings were not set aside by the appellate court so in the event if the appellate court had come to the conclusion that the need of the land lord was genuine , it should have remanded the matter to the trial court and not adjudicate and decided the same. 8. He further submits that by way of amendment , it was not pleaded that Krishna Kumar , grand son of the original landlord had completed his technical education and want the shop for his personal use and by arbitrary manner, the appellate court had allowed the appeal by taking into consideration the new facts on the basis of amendment. In support of his arguments he relies upon the following judgments:- (1) Malti Devi Dixit (Smt.)(Dead) through LRs. Vs. Satya Narain Jhawar and others , 2009(2) ARC,1998 (2) Raj Kumar Vs. Lal Khan 2009 (2) ARC 740 (3) Rajendra Prakash Garg Vs. Bal Kishore Agarwal 2009 (3) ARC 46. 9. In support of his arguments he relies upon the following judgments:- (1) Malti Devi Dixit (Smt.)(Dead) through LRs. Vs. Satya Narain Jhawar and others , 2009(2) ARC,1998 (2) Raj Kumar Vs. Lal Khan 2009 (2) ARC 740 (3) Rajendra Prakash Garg Vs. Bal Kishore Agarwal 2009 (3) ARC 46. 9. Lastly, it was submitted by the learned counsel for the petitioner that need for a grandson is not covered under Rules 6 (2)(d) of the U.P. Urban Buildings ( Regulation of Letting, Rent and Eviction) Rules , 1972 , as such the application was not maintainable in order to support the said contention he relies upon the case of Smt. Rahiman Vs. District Judge, Barabanki and others ,1984(2) ARC 445.Accordingly the order passed by the appellate authority is liable to be set aside. 10. Sri Pyush Kumar Agarwal, learned counsel for the respondent submits that by way of amendment in release application, the need in respect of Krishna Kumar was set up for starting his business and the amendment which was allowed in the release application was not challenged by the petitioner as such he is debarred from challenging the need as set up in the release application. 11. Sri Agarwal further submits that it is not mandatory for the appellate court to remand each and every case to the trial court . Remand is the discretion of the appellate authority, as the power under Section 22 of the U.P. Act no. 13 of 1972 is parallel and not inferior to that of prescribed authority and the petitioner-tenant had submitted additional evidence before the appellate court who after considering each and every evidence on record, the order dated 23.2.2008 was passed by the appellate authority so the same is perfectly valid. 12. 13 of 1972 is parallel and not inferior to that of prescribed authority and the petitioner-tenant had submitted additional evidence before the appellate court who after considering each and every evidence on record, the order dated 23.2.2008 was passed by the appellate authority so the same is perfectly valid. 12. He further submits that there is not denial of the fact of acquisition of technical education by Krishna Kumar rather the same has been admitted by the tenant and as per the definition of Family given in Section 3(g)(ii) which lay down 'male lineal descendants' which includes grandson also as such so the plea taken by the tenant in respect of Rule 16(2) (d) of the Rules is totally incorrect and wrong, further the said plead was not taken anywhere before the prescribed authority, appellate authority or in the memo of writ petition so the petitioner- tenant who has acquiesced is now estopped to take such a plea so the present petition filed by the petitioner deserved to be dismissed . In support of his contention he relied upon the decision of Hon'ble Supreme Court in the case of K.V. Muthu V. Angamuthu Ammal , AIR 1997 Supreme Court 628 and in the case of Jai Raj Agarwal Vs. Bhola Nath Kapoor and others ,2005 (3) ARC 317. 13. I have heard the learned counsel for the parties and perused the record. 14. The first question which has been addressed by the learned counsel for the petitioner that initially the need which is set up by the original land lord who in respect to the starting of business of his three grandsons in the release application and after considering the same , the prescribed authority had found that the same was not genuine and bone fide, rejected the release application then the appellate court while setting aside the same should not reversed the order of prescribed authority on a new plea at the appellate stage and allowed the same but ought to have remanded the matter to the prescribed authority , has got no force as at the appellate stage an amendment application had been moved inter alia taking a plea that Sri Krishna Kumar had completed his technical education and in order to established his business at Gonda the shop in question is required. The said application was contested by the parties thereafter the same was allowed by the appellate authority, the order by which amendment was allowed was not challenged before the higher forum, as such the same had attained finality, even after allowing the amendment in the release application, the tenant had been afforded ample opportunity, he availed the same by filing additional written statement and evidence so now it is too late in the day on the part of the tenant to assail the order passed by the appellate authority on the ground that the appellate authority should not allowed the release application rather the matter should be remanded to the prescribed authority . The said plea even otherwise is not correct as under Section 22 of the U.P. Act no. 13 of 1972 , the appellate authority has got the same equal and parallel power and not in any manner inferior to the prescribed authority as such the first submission made on behalf of the petitioner has got no force and is accordingly rejected and the authorities which cited on behalf of the petitioner in this regard are not applicable in the facts and circumstances of the present case so the petitioner cannot derive any benefit from them. 15. The next contention as raised by the learned counsel for the petitioner is that the need for grand son is not covered under Rule 16(2) (a) of the U.P. Urban Buildings ( Regulation of Letting, Rent and Eviction) Rules , 1972 and the reliance has been placed in this regard in the case of Smt. Rahiman (Supra) in which this Court has held as under :- "The petitioner had applied for the release of the shop on the ground that their grand-son Taj Mohammad was to be established in business . Since Taj Mohammad does not fall within the category of the persons contemplated by clause (s) of Rule 16 (2) which has been quoted above, the petitioners can not legally contend that their need should be construed liberally. Since Taj Mohammad does not fall within the category of the persons contemplated by clause (s) of Rule 16 (2) which has been quoted above, the petitioners can not legally contend that their need should be construed liberally. The question whether the petitioners bona fide require the shop in question stands decided conclusively by the finding of fact recorded by the learned District Judge, who had found it as a fact that the shop which was in occupation of Chheda (since deceased) is now in the possession of the petitioners and that the proposed business can be started by Tax Mohamnmad in that shop." 16. In Joginder Pal Vs. Naval Kishore Behal, 2002) 5 SCC 397, the Apex Court with a reference to the provisions of East Punjab Urban Rent Restriction Act, on the question of bona fide need, after serving its earlier pronouncements , has held that the requirement of a major son and a co-parcener in a joint Hindu family intending to start a business is the requirement of the landlord himself . 17. In the case of B.Balaiah V. Lachaiah, AIR 1965 AP 435 it was held that the words "for his own use" must receive a wide, liberal and useful meaning rather than a strict or narrow construction . It has been further held that while casting its judicial verdict , the Court shall adopt a practical and meaningful approach guided by the realities of life." 18. Further in the case of K.V. Muthu (Supra) the Hon'ble Supreme Court has held as under :- "Son" as understood in common parlance means a natural son born to a person after marriage. It is the direct blood relationship which is the essence of the term in which "Son" is usually understood, emphasis being on legitimacy. In legal parlance, however, "Son" has a little wider connotation. It may include not only the natural son but also son's son, namely, the grand child, and where the personal law permits adoption, it also includes an adopted son." 19. Further, the word ' reasonable requirement' has interpreted by the Hon'ble Apex Court in the case of Mst. Bega Begum and others Vs. Abdul Ahad Khan and others , (1979) 1 SCC 275 that the words ' reasonable requirement' undoubtedly postulates that there must be an element of need as opposed to mere desire or wish. Further, the word ' reasonable requirement' has interpreted by the Hon'ble Apex Court in the case of Mst. Bega Begum and others Vs. Abdul Ahad Khan and others , (1979) 1 SCC 275 that the words ' reasonable requirement' undoubtedly postulates that there must be an element of need as opposed to mere desire or wish. The distinction between 'desire' and 'need' should be kept in mind but not so as to make the genuine need as a mere desire. 20. In the light of the above said fact and the facts of the present case that initially the release application has been moved by one Umrao Lal who had died and later on he was substituted by his son Gokul Chandra and amendment was made in the release application by Gokul Chandra in respect of the need of his son Krishna Kumar who had completed his technical education and want to set up the business at Gonda , the submission made on behalf of the petitioner has also got no force and the same is rejected. 21. Moreover, the Apex Court in the case of Mst. Bega Begum and others V. Abdul Ahad Khand (Dead) by L.R. And others, (1979) SCC 273 has held that it is not doubt true that the tenant will have to be ousted from the house if a decree of eviction is passed but such an event would happen eventually whenever a decree for eviction is passed and merely because the tenant will be ousted from the premises where he was running his activity cannot be itself be considered to be a hardship and be availed ground for refusing the landlord a decree for eviction. 22. In the instant case the tenant did not make any effort to search an alternative accommodation immediatel, the filing of the release application and even thereafter the said facts are sufficient to tilt the balance of comparative hardship against the tenant as held by the Apex Court in the case of Bhutada V. G.R. Mundada 2003 Supreme Court 2713; 2005(2) ARC 899 , the said authority has been followed by this Court in Salim Khan V. Ivth Additional District Judge, Jhanshi and others , 2006(1) ARC 588 wherein it is held is under:- " in respect of comparative hardship , tenant did not show what efforts they made to search alternative accommodation after filing of release application . This case sufficient to tilt the balance of hardship against them Vide Bhutada V. G.R. Mundada 2003 Supreme Court 2713; 2005(2) ARC 899. Moreover, rent of Rs. 6/- per month which the tenants are paying is virtually as well as actually no rent. By paying such insignificant rent they must have saved a lot of money. Money saved is money earned. They must , therefore, be in a position to take another house on good rent. Further, they did not file any allotment application for allotment of another house. Under Rule 10(3) of the Rules framed under the Act, a tenant, against whom release application has been filed, is entitled to apply for allotment of another house immediately. Naturally such person is to be given preference in the matter of allotment. Respondents did not file any such allotment application. Thus, the question of comparative hardship has also to be decided against the tenants." The said view has been further reiterated by this Court in the following cases:- (1) Jai Raj Agarwal Vs. Bhola Nath kapoor and others , 2005(3) ARC 417. (2) Rulemuddin and others Vs. Abdul Nadeem ,2007(2) ARC 62. (3) Mohabbey Ali Vs Taj Bahadur and other, 2009 (2) ARC 715. (4) Raj Kumar Vs. Lal Khan, 2009 (2) ARC 740 (5) Ashis Sonar and other Vs. Prescribed Authority and others 2009 (3) ARC 269 . 23. For the forgoing reasons , the present writ petition filed by the petitioner-tenant lacks merits and is dismissed accordingly. 24. However considering the facts and circumstances of the case and also in the interest of justice I direct that the order of eviction against the petitioner-tenant shall not be executed till 31st July,2010 provided:- (1) the petitioner-tenant shall furnish an under taking before the prescribed authority within a period of month from today to the effect that he will deposit the entire rent /damages at the rate of rent till date, if not already deposited or paid to the landlord and continue to deposit the same as and when the same falls due by the first week of each succeeding months so long he remains in possession or till 31st July,2010 whichever is earlier ; and (2) the petitioner-tenant shall vacate the handover the peaceful possession of the shop in question on or before 31st July,2010 to the land lord. (3) in the event of default of any of the conditions mentioned above, it will be open to the landlord to get the order of eviction executed.