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2011 DIGILAW 1134 (ALL)

Ram Sumrani v. Subhash Vaishya

2011-05-02

RAKESH TIWARI

body2011
JUDGMENT Hon'ble Rakesh Tiwari, J. Heard learned counsel for the parties and perused the record. 2. Brief facts of the case are that the petitioners are tenants of the shop in dispute situate in Bara Bazar, Budaun on monthly rent of Rs.100/-. The respondents are the landlords of the shop in dispute. 3. It is stated that a release application under Section 21(1)(a) of Uttar Pradesh Urban Buildings (Regulation Of Letting, Rent And Eviction) Act, 1972 (hereinafter referred to as the U.P. Act No. 13 of 1972) was filed by the respondents-landlords for release of the shop in dispute under the tenancy of the petitioners tenants on the ground that respondent no.1 is the Doctor and is wife is also a Doctor; that they are running Subhash Nursing Home at Shyam Nagar, Budaun and that his son Dr. Salabh Vaishya who was doing his IInd year MBBS Course from King George Medical College, Lucknow after his graduation will start his own medical profession from the shop in dispute along with nephew of the respondents-landlords. It was also stated in the release application that after the death of Ram Swaroop, the shop in dispute is lying vacant and rent is due from 1988. 4. The release application was contested by the tenants by filing written statement denying the averments made therein. 5. During the pendency of the proceedings before the Prescribed Authority, an application for appointment of a advocate commissioner was moved by the tenants for inspection of the accommodation of the landlords situate in Budaun and also the shop in dispute. The application was rejected by the Prescribed Authority vide order dated 14.9.2000. Aggrieved by the aforesaid order dated 14.9.2000, the petitioners filed Revision, which too was dismissed. 6. After hearing both the parties and going through the record the Prescribed Authority/Civil Judge (Senior Division), Budaun vide judgment and order dated 23.11.2004 allowed the release application directing the tenants to vacate and handover peaceful possession of the shop in dispute to the landlords within a period of one month from the date of the order. 6. After hearing both the parties and going through the record the Prescribed Authority/Civil Judge (Senior Division), Budaun vide judgment and order dated 23.11.2004 allowed the release application directing the tenants to vacate and handover peaceful possession of the shop in dispute to the landlords within a period of one month from the date of the order. It was provided that in case of failure to comply with the aforesaid order, the landlords would be at liberty to get the shop in dispute vacated through the Court on the expenses of the tenants and that the landlords shall pay damages of the shop in dispute for a period of two years within one month as provided in the proviso to Section 21 of U.P. Act No. 13 of 1972. 7. Aggrieved by the aforesaid order dated 23.11.2004 of the Prescribed Authority, the petitioners filed Rent Appeal No. 45 of 2004, Smt. Ram Sumarni Devi and others versus Dr. Subhash Vaishya and others before the appellate Court, which too was dismissed vide judgment and order dated 8.4.2011, hence the instant writ petition has been filed challenging the legality, validity and correctness of the judgment and order dated 23.11.2004 passed by the Prescribed Authority/Civil Judge (Senior Division), Budaun in P.A. Case No. 01 of 1996, Dr. Subhash Vaishya and others versus Smt. Ram Sumrani and others allowing the release application filed by the landlords under Section 21(1)(a) of U.P. Act No. 13 of 1972 and the judgment and order 8.4.2011 passed by the Additional District Judge/Special Judge ( E.C.Act), Budaun in Rent Appeal No. 45 of 2004, Smt. Ram Sumrani and others versus Dr. Subhash Vaishya and others by which the appeal of the tenants-petitioners has been dismissed. 8. Learned counsel for the petitioners submits that the Courts below have failed to take into the fact that during the pendency of release application, Dr. Salabh Vaishya can work in the Nursing Home of his father who is now aged and is confined to wheel-chair for motor-loco acting , the need of Dr. Salabh Vaishya, if any, is not genuine, therefore, the findings of the courts below are vitiated in law; that the petitioners tenants moved two applications i.e. paper nos. Salabh Vaishya can work in the Nursing Home of his father who is now aged and is confined to wheel-chair for motor-loco acting , the need of Dr. Salabh Vaishya, if any, is not genuine, therefore, the findings of the courts below are vitiated in law; that the petitioners tenants moved two applications i.e. paper nos. 55-C and 62-C for issuance of commission with regard to inspection of the properties of the landlord but the same was illegally rejected by the Prescribed Authority; and that the size of the shop in question is 7x10 situated in a 'GALI' where 'SARRAFA' business is being carried on in the vicinity and it is not suited for medical profession, the Courts below shut their eyes to the aforesaid facts while allowing the application for release and holding the need of the landlords as genuine and bonafide. 9. He also submits that there is a vacant shop of the landlords on the ground floor in Mohalla Chaubeypur and the tenants are prepared to take that shop under Clause (16(2)(c) of U.P. Urban Buildings (Regulation Of Letting, Rent And Eviction) Rules, 1972 framed under U.P. Act No. 13 of 1972 but the Courts below ignoring the aforesaid aspect of the matter has illegally allowed the release application; that the petitioners are carrying on the business of 'SARRAFA' from the shop in dispute and have earned goodwill and if they are evicted the livelihood of petitioner and 20 members of his family who are depended on the income from the aforesaid business would be affected. It is stated that the tenants made efforts to search for alternative accommodation in the near vicinity but no shop suitable to him is available and in case they are evicted from the shop in dispute, they will suffer greater hardship. It is also stated that the photographs and the map brought on record clearly show that of Dr. Salabh Vaishyais sitting with his father and mother in the Nursing Home as such he has no bonafide need of getting the shop in question vacated, therefore, the impugned judgments and orders of the Courts below are illegal, erroneous and against the evidence on record and the same are liable to be quashed. 10. Salabh Vaishyais sitting with his father and mother in the Nursing Home as such he has no bonafide need of getting the shop in question vacated, therefore, the impugned judgments and orders of the Courts below are illegal, erroneous and against the evidence on record and the same are liable to be quashed. 10. Per contra, learned counsel for the respondents submits that the Courts below have recorded concurrent findings of facts in favour of the landlords holding the bonafide need and comparative hardship in their favour, hence the impugned orders dated 23.11.2004 passed by the Prescribed Authority/Civil Judge (Senior Division), Budan as well as the order dated 8.4.2011 passed by the appellate Court do not suffer from any illegality or infirmity, hence no interference is required by this Court. 11. After hearing learned counsel for the parties and on perusal of the orders impugned of the courts below it is apparent that respondent no.1 landlord filed an application for release of the shop in dispute for establishing his son in his own clinic. The Prescribed Authority holding the bonafide need and comparative hardship in favour of the landlords observed that from the evidence on record it appears that respondent no.1 landlord has been successful in proving that shop in dispute under the tenancy of the petitioners for establishing his son,Dr. Subhash Vaishya is genuine and in case the shop in dispute is not released in favour of the landlords, they will suffer greater hardship than the tenants. The court below further concluded that after getting education in medicine it is the responsibility of the parents to establish his son in medical profession independently but except the shop in dispute under the tenancy there is no other shop available with the landlord. 12. The appellate Court after considering the various decisions cited by the learned counsel for the parties concluded that Rule 16(2) of the Rules framed under U.P. Act No. 13 of 1972 is directory and not mandatory. The landlord is the best Judge to choose as to how and at which place he should run the business in his premises. The petitioners are the tenants in the shop in dispute and they are doing the business of 'SARRAFA'. They can shift their business in another shop but they have not made any efforts to search out the alternative shop. The petitioners are the tenants in the shop in dispute and they are doing the business of 'SARRAFA'. They can shift their business in another shop but they have not made any efforts to search out the alternative shop. If the landlord wants to establish business separately for his son, he cannot be compelled from not doing so. The son of the landlord who is a Doctor wants to start his own business of medical profession, hence in these circumstances, the need of respondent no.1 for establishing his son in the business of medical profession in the shop in dispute is genuine and bonafide and on the basis of comparative hardship, bonafide need cannot be ignored. Accordingly, the appellate Court has dismissed the appeal by confirming the judgment and order dated 23.11.2004 of the Prescribed Authority. 13. No illegality or infirmity could be shown by the learned counsel for the petitioners in the impugned judgments and orders of the Courts below, hence no interference is required by this Court in exercise of its extra-ordinary powers under Article 226 of the Constitution. 14. For all the reasons state above, the writ petition is dismissed. 15. At this stage, learned counsel for the petitioners requested the Court for allowing reasonable time to the tenants for vacating the shop in dispute. As prayed, one month's time is allowed to the tenants-petitioners for vacating and handing over peaceful possession of the shop in dispute to the landlords. 16. No order as to costs.