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2011 DIGILAW 51 (ALL)

Qaiser v. Additional District Judge

2011-01-07

SHASHI KANT GUPTA

body2011
JUDGMENT Hon'ble Shashi Kant Gupta, J. 1. This writ petition has been filed against the judgment and order dated 7.12.2010 passed by the Additional District Judge, Court No. 13, Moradabad in Appeal No. 22 of 2008, upholding the order dated 19.5.2008 passed by the Prescribed Authority, Moradabad in P. A. Case No. 13 of 2007 whereby the release application of the landlords have been allowed. 2. The brief facts of the case are as follows; 3. The respondent Nos. 3 to 10 moved a release application under Section 21 (1)(a) of the U. P. Act No. 13 of 1972 (In short "the Act") on the ground of bonafide need for setting up business of the Respondent No. 5 in the disputed shop. The said application was contested by the petitioner by filing his written statement. After the exchange of pleadings and evidence, the said application under Section 21 (1) (a) of the Act was allowed. Aggrieved and dissatisfied with the said order, the petitioner filed an appeal which was dismissed by the appellate court by order dated 7.12.2010. Hence, the present writ petition. 4. Learned counsel for the petitioner has submitted that the shop in dispute was the only source of livelihood of the petitioner who has a large family consisting of self, wife, four unmarried daughters and one son. It is further submitted that the application under Section 21 (1)(a) was not filed by the landlords with clean hands as they deliberately omitted to mention the fact that the landlords also own five shops apart from possessing two rented shops. It was only when this fact was pin pointed by the petitioner in its written statement, the said fact was disclosed in the rejoinder affidavit. He further submitted that the need of the landlords is neither genuine nor bonafide and the comparative hardship tilts in favour of the petitioner. He further submitted that in year 2004 one shop was released in favour of the landlords but after the release it was rented out to a third person on higher rent. 5. Per contra, learned counsel for the Respondents No. 3 to 9 has submitted that both the courts below have given a categorical finding of fact that the need set up for the respondents No. 3 is genuine and bonafide and the comparative hardship also tilts in favour of the landlords. 5. Per contra, learned counsel for the Respondents No. 3 to 9 has submitted that both the courts below have given a categorical finding of fact that the need set up for the respondents No. 3 is genuine and bonafide and the comparative hardship also tilts in favour of the landlords. He further submitted that in the year 2004, the landlord was not in need of additional accommodation, as such, the shop was not occupied by the landlord. Moreover, the release application under Section 21 of the Act was filed in the year 2007 whereas a shop in favour of the landlords was released in this year 2004 much before the filing of the release application, therefore, no adverse inference can be drawn against the landlord on this count. 6. Heard the learned counsel for the petitioner and the learned counsel for the respondents and perused the material available on record. 7. The release application has been moved by the landlord-respondents No. 3 to 10 on the ground of bonafide need for setting up business of the Respondent No. 5. From perusal of the record, it is evident that the Respondent No. 3 to 5 are the owners of the five shops; one shop is in the tenancy of the petitioner, second shop is in the occupation of the Respondent No. 3, who is carrying on his business from the said shop and rest of the shops are rented out and occupied by the respective tenants. The aforementioned facts have not been denied by the learned counsel for the petitioner. It is also the case of the petitioner that apart from the aforementioned five shops, the landlords are in possession of two more rented shops. Therefore, the need of the landlord is not genuine. With regard to the aforementioned two shops the court below has recorded a finding of fact that one shop which is in front of the disputed shop is not suitable for carrying on business since it was in a dilapidated condition and is a wakf property and the other shop was being occupied by Shahid son of Rais, Respondent No. 3 who is carrying on business of meat for which he is holding a licence. The aforesaid findings are based on record and cannot be said either to be arbitrary or perverse. 8. The aforesaid findings are based on record and cannot be said either to be arbitrary or perverse. 8. It was further submitted by the learned counsel for the petitioner that the comparative hardship leans in favour of the petitioner since he has got a large family and the disputed shop is the only source of his livelihood. 9. It is true that in case the petitioner is evicted from the disputed shop, he will suffer hardship but in most of the cases when the tenants are evicted, they suffer some hardship. It is also evident from the record that the respondent No. 5 is unemployed and does not have any other alternative accommodation to carry on his business, he has got all the right to carry on his independent business from the shop of his choice. He cannot be dictated by the tenant as to from which shop he should carry on his business. 10. The court below has recorded a categorical finding of fact that during the pendency of the release application, the petitioner made no attempt to search out any other alternative accommodation and therefore, comparative hardship lies in favour of the landlords. The findings are based on record. 11. While upholding the impugned orders passed by the courts below, I am fortified in my view by the following authorities of this Court; 1. Mohd. Arif Vs. IIIrd Addl. District Judge, Pilibhit 2. Onkar Nath Gupta and others Vs. Ixth A.D.J., Kanpur Nagar and others 3. Salim Khan Vs. Ivth Additional District Judge, Jhansi and others 12. It has been held by this Court in Mohd. Arif's case that availability of a rented shop to the landlord can never be a ground for holding the need to start business from his own shop as not bonafide. The Court in the said case has relied upon on the decisions of Apex Court in the cases of Dhanne Lal Vs. Kalawati Bai reported in and G. K. Devi Vs. Ghanshyam. 13. Both the courts below have given cogent, convincing and satisfactory reasons while passing the impugned orders. The findings recorded are neither perverse nor based on any extraneous or irrelevant material. The court below have on meticulous evaluation of evidence found the need of the landlords to be bonafide and genuine and the comparative hardship in favour of the landlords. 13. Both the courts below have given cogent, convincing and satisfactory reasons while passing the impugned orders. The findings recorded are neither perverse nor based on any extraneous or irrelevant material. The court below have on meticulous evaluation of evidence found the need of the landlords to be bonafide and genuine and the comparative hardship in favour of the landlords. This Court cannot substitute its opinion for the opinion of the court below unless it is found that that the conclusion drawn by the lower courts are erroneous or perverse. 14. Thus in view of the discussions made hereinabove, I do not finding any illegality or infirmity in the orders impugned in the writ petition. The writ petition is, accordingly, dismissed. 15. As urged by the learned counsel for the petitioner, six months' time is granted to the petitioner to vacate the premises in dispute provided the petitioners gives his 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 landlords without inducting any third person within a period of six months from today. 16. In the event of default, the landlords-opposite parties No. 3 to 5 will be at liberty to proceed to evict the petitioner forthwith if necessary with the help of police.