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2011 DIGILAW 1888 (ALL)

JOGENDRA SINGH v. SUNIL KUMAR

2011-08-08

SHASHI KANT GUPTA

body2011
JUDGMENT Hon’ble Shashi Kant Gupta, J.—This writ petition has been filed by the petitioners against the judgment and order dated 2.7.2011 passed by Additional District Judge, Court No. 4, Bijnor in Rent Appeal No. 11 of 2009 upholding the judgment and order dated 29.9.2009 passed by the Prescribed Authority in P.A. Case No. 04 of 1998, whereby the application under Section 21(1)(a) of the U.P. Act No. 13 of 1972 (herein after referred to as the Act) of the respondents-landlord has been allowed. Brief facts of the case are as follows : 2. An application under Section 21(1)(a) of the Act was filed by the Respondent No. 1 Sunil Kumar (hereinafter referred to as the ‘Respondent’) on the ground of bona fide and genuine need for release of the disputed shop. The petitioners in their written statement refuted the averments made in the plaint. The Prescribed Authority after considering the material on record allowed the said application by order dated 22.9.2009. Being aggrieved and dissatisfied with the said order, the petitioners filed an Appeal which was registered as Rent Appeal No. 11 of 2009 and the same was dismissed. Hence the present writ petition. 3. The main contention of the learned counsel for the petitioners is that the need of the respondents-landlord is neither bona fide nor genuine as the respondent is already carrying on his independent business at Kotdwar (Uttrakhand). It is further submitted that the respondent alongwith his brothers had sold two shops in the year 1994 and 1996, as such it cannot be said that the need of the respondent is genuine and bona fide. It is further submitted that the partition decree is collusive. 4. Learned counsel for the respondent has submitted respondent was earlier carrying on his business from the rented shop at Kotdwar, however said shop was released in favour of the owner and the shop was got vacated. Learned counsel for the respondents has further submitted that on the basis of partition decree, the disputed shop fell into the share of the respondent. Apart from the disputed shop, the respondent neither owns nor possesses any other shop to carry on his business. 5. Heard learned counsel for the parties and perused the record. 6. Learned counsel for the respondents has further submitted that on the basis of partition decree, the disputed shop fell into the share of the respondent. Apart from the disputed shop, the respondent neither owns nor possesses any other shop to carry on his business. 5. Heard learned counsel for the parties and perused the record. 6. Bare perusal of the record reveals that the partition took place between the respondent and his brothers, as a result, partition decree dated 25.3.1995 was passed by the Competent Court and the disputed shop situated at Najibabad (Bijnor) came into the share of the respondent. No objection with respect to the legality or validity of the partition decree was ever raised by the brothers of the respondent, who were party to the said partition suit and the partition decree attained finality. Thus, it cannot be said that the partition decree was collusive. The record further reveals that the respondent was earlier carrying on the business from a rented shop at Kotdwar but the said shop was released in favour of the owner and the shop was got vacated. It is noteworthy that the litigation was fought with respect to the said shop unsuccessfully up to the Supreme Court. The petitioners have not been able to prove that the respondent either owns or possesses any other shop. 7. The main contention of the petitioners is that two shops were sold by the respondent and his brothers jointly on 14.6.1994 and 1.1.1996, as such according to the petitioners the need of the petitioners cannot said to be bona fide and genuine. The contention of the petitioners has no force. One shop was sold jointly by the respondent and his brothers on 14.6.1994 much prior to the partition decree, as such it has no relevancy. Regarding the other shop which was sold on 1.1.1996, the respondent even though had no share in the said shop but on the insistence of the purchaser also agreed to sign the sale-deed. It is not unknown indeed it is almost the usual practice that the purchasers in order to avoid any complication in future sometimes insist upon the seller to get the sale-deed signed by other legal heirs also, although they cease to own the said property. 8. It is not unknown indeed it is almost the usual practice that the purchasers in order to avoid any complication in future sometimes insist upon the seller to get the sale-deed signed by other legal heirs also, although they cease to own the said property. 8. There is one more aspect which cannot be ignored that the respondent wants to shift his business from Kotdwar to Najibabad (Bijnor), as robbery was committed in his house at Najibabad (Bijnor) in his absence, wherein his wife, who was all alone in the house, was seriously injured, as such he does not want to leave his family all alone at Najibabad (Bijnor). The petitioners cannot compel the landlord as to how and where the respondent should set up his business. 9. Bare perusal of the record further reveals that the petitioners did not make any positive and sincere effort to search out any accommodation during the pendency of the release application. No cogent material was placed by the petitioners before the Courts below to substantiate their arguments. 10. This Court in Shiv Murti Sharma v. ADJ, 1991 (1) ARC 449, has held that the tenant cannot dictate as to how he (landlord) will adjust himself without getting possession of the tenanted premises while deciding the question of bona fide need of the landlord and how the landlord could have adjusted himself. 11. In Shiv Sarup Gupta v. Dr. Mahesh Chandra Gupta, (1999) 6 SCC 222 , it has been held that phrase “requires bona fide” is suggestive of legislative intent that a mere desire which is the outcome of whim or fancy is not taken note of by the rent control legislation. A requirement in the sense of felt need which is an outcome of a sincere, honest desire, in contradiction with a mere pretence or pretext to evict a tenant, on the part of the landlord claiming to occupy the premises for himself or for any member of the family would entitle him to seek ejectment of the tenant. Once the Court is satisfied of the bona fides of the need of the landlord for the premises or additional premises by applying objective standards then in the matter of choosing one or more then one accommodation available to the landlord his subjective choice shall be respected by the Court. Once the Court is satisfied of the bona fides of the need of the landlord for the premises or additional premises by applying objective standards then in the matter of choosing one or more then one accommodation available to the landlord his subjective choice shall be respected by the Court. The Court would permit the landlord to satisfy the proven need by choosing the accommodation which the landlord feels would be most suited for the purpose; the Court would not in such a case thrust its own wisdom upon the choice of the landlord by holding that not one but the other accommodation must be accepted by the landlord to satisfy his such need. In short, the concept of bona fide need or genuine requirement needs a practical approach instructed by the realities of life. 12. In Sarla Ahuja v. United India Insurance Co. Ltd., (1996) 5 SCC 353 , it has been held that the Rent Controller should not proceed on the assumption that the landlord’s requirement is not bona fide. When the landlord shows a prima facie case a presumption that the requirement of the landlord is bona fide is liable to be drawn. It is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without giving possession of the tenanted premises. While deciding the question of bona fides of the requirement of the landlord, it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted himself. 13. Regavendra Kumar v. Firm Prem Machinery and Company, (2000) 1 SCC 679 , is an authority for the proposition that the landlord is the best Judge of his own requirement for residential or commercial purpose and has complete freedom in the mater. In this authority the Apex Court has relied upon its earlier judgment in Prativa Devi v. T.V. Krishnan, (1996) 5 SCC 353 . 14. Both the Courts below have recorded the findings of fact holding the need of the landlord to be bona fide and genuine and the comparative hardship tilts in favour of the respondents-landlord, and the said findings are based on the evidence available on record. Both the Courts below have given cogent, convincing and satisfactory reason while passing the order in favour of the landlord. Both the Courts below have given cogent, convincing and satisfactory reason while passing the order in favour of the landlord. The finding recorded by the Courts below are neither perverse nor based on any extraneous or irrelevant material. The appellate Court below has on meticulous evaluation of evidence and material available on the record, found the need of the landlord to be bona fide and genuine. This Court under Article 226 of the Constitution of India cannot substitute its own opinion for the opinion of the Courts below. Unless it is found that the conclusion drawn by the lower Court is erroneous being contrary to the mandatory provisions of law or based on inadmissible evidence or arrived at findings without evidence. 15. I do not find any illegality or infirmity in the impugned order. In the result this petition is accordingly dismissed. 16. After the judgment was dictated, learned counsel for the petitioners urged that at least three months time may be granted to him for vacating the premises in question. The learned counsel for the landlord did not raise any objection to it. 17. As urged by the learned counsel for the petitioners, three months’ time is granted to the petitioners to vacate the premises in dispute provided the petitioners give their undertaking in the form of an affidavit before the prescribed authority within one month from today specifically stating therein that he will handover the peaceful possession of the said accommodation to the respondents-landlord without inducting any third person within a period of three months from today. 18. In the event of default of any of the aforesaid conditions, the respondents-landlord will be at liberty to proceed to evict the petitioners, if necessary by coercive process with the aid of police force. —————