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2012 DIGILAW 1026 (ALL)

Uma Shanker Dhobi v. Uma Shanker Gupta and others

2012-05-01

SHRI NARAYAN SHUKLA

body2012
Shri Narayan Shukla, J.— Heard Mr.S.K.Mehrotra, learned counsel for the petitioner as well as Mr.Manoj Sahu, learned counsel for the respondents. The petitioner has challenged the order dated 27th of July, 2010, passed by the Civil Judge (Senior Division)/Prescribed Authority, Faizabad in P.A. Case No.10 of 1996 as also the order dated 12th of August, 2011, passed by the Additional District Judge, Faizabad in Civil Misc. Appeal No.100 of 2010. By means of order dated 27th of July, 2010, the learned Civil Judge has allowed the application of the respondent No.1 for release of accommodation in dispute, which has been upheld by the order passed in appeal. The facts of the present case, in brief, are that the respondent No.1 is the landlord of house No.533, whose new number is 2/7/45, situate at Mohalla Niyawan Chauraha, City Faizabad. The petitioner is a tenant of a shop situate in the house and is running Laundry since the life time of his father, who was the original tenant. The said shop was let out to him by one Bhagwandin, the original landlord. The petitioner had been paying the rent to Mr.Bhagwandin, but at some point of time he refused to accept it, therefore, the petitioner started depositing the rent in the court under Section 30(1) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U.P.Act No.13 of 1972) (hereinafter referred to as the 'Act'). Respondent No.1, who is the present landlord moved an application under Section 21 (1)(a) of the Act for release of shop submitting therein that he is in the need of the same. It was stated by him that his family, is consisted of his wife, three sons and three daughters, who need separate rooms, as residential accommodation in the house was insufficient. He also stated that except this house he has no other house for residence of his family and further he is not in a position to take another house in city Faizabad on rent. Through the counter affidavit the respondent No.1 showing the need of his family also stated that his father has executed a sale deed in favour of his daughter, who is respondent's sister, of the same house, therefore, now the respondent has no right and ownership or possession in the house. Through the counter affidavit the respondent No.1 showing the need of his family also stated that his father has executed a sale deed in favour of his daughter, who is respondent's sister, of the same house, therefore, now the respondent has no right and ownership or possession in the house. He also made efforts to establish that his children are in need for settlement in the business, for which the shop is required. He also contended that the petitioner keeps a big house at the place about 100 meters away from the disputed shop, where he can run the shop and he is in default of payment of rent since 1996. Admittedly, the answering respondent is an employee of the Railway Department, but he has not been allotted the accommodation, therefore, his family is residing at Faizabad. More so, even if he is allotted the accommodation by the Railway Department, he is not in a position to reside therein as his other members of family are running the business of Lai, Chana, Chura, Batasa and other items, for which a separate shop is needed. After execution of sale deed in favour of his sister, it is stated that now she is residing with her family therein and running a Kirana shop. Thus, with the claim and counter claim, the parties have tried to establish their need for shop, let out to the petitioner on rent. More so, the respondent has also tried to establish the petitioner as defaulter in payment of rent. The Prescribed Authority has allowed the application, on the ground that the respondent/applicant has inherited the house in dispute from his uncle. Admittedly, petitioner is a tenant, but keeping in view the need of the shop for the members of the respondent's family to run the shop itself, he has held that the respondent/applicant is in the need of the shop and therefore, the petitioner is liable to be evicted. He has also considered that the petitioner maintains another house, therefore, in such a situation the availability of alternative accommodation with the petitioner is established. It is also stated that the respondent's wife is running the shop of Lai, Chana, Chura, Batasa and other items in front of the house, for which she needs a proper accommodation. Thus, the learned Prescribed Authority has found established the need of the respondent a shop for his wife. It is also stated that the respondent's wife is running the shop of Lai, Chana, Chura, Batasa and other items in front of the house, for which she needs a proper accommodation. Thus, the learned Prescribed Authority has found established the need of the respondent a shop for his wife. It is also pertinent to mention here that the learned Prescribed Authority has observed that during the course of tenancy, the several shops have been constructed by the Local authorities, but the petitioner did not make any effort to get any of the shops on rent. He also considered the practical difficulty of both of them and accordingly allowed the respondent's application for eviction. Aggrieved respondent filed appeal against the order of the Prescribed Authority. The court of appeal has upheld the order of the Prescribed Authority considering the facts and circumstances as was considered by the Prescribed Authority. Before this court also, it has been submitted by the petitioner that the respondent has an alternative accommodation i.e. a quarter allotted to him in the Railway department, therefore, the respondent's demand cannot be said to be a bona fide requirement. However, the respondent has not disclosed in regard to the accommodation provided by the Railway Department to him. Therefore, the respondent's demand cannot be said to be a bona fide requirement. In support of his submission, he cited a decision of Hon'ble Supreme Court, rendered in the case of Kishan Chand versus Jagdish Pershad and others, reported in (2003) 9 SCC 151 , in which the Hon'ble Supreme Court has held that it is well settled law that a person concealing the material fact cannot seek the assistance of the Court. On this ground he submits that the writ petition deserves to be allowed as the respondent's claim being based on concealment of facts, is liable to the rejected. The learned counsel for the petitioner cited another decision of the Hon'ble Supreme Court i.e. Dinesh Kumar versus Yusuf Ali, reported in (2010) (28) LCD 897, relevant paragraph 9 of which is reproduced hereunder:- "9.However, in Ram Dass v. Ishwar Chander & Ors., AIR 1988 SC 1422 , this Court, held that 'bona fide need' should be genuine, honest and conceived in good faith. Landlord's desire for possession, however honest it might otherwise be, has, inevitably a subjective element in it. Landlord's desire for possession, however honest it might otherwise be, has, inevitably a subjective element in it. The "desire" to become "requirement" must have the objective element of a "need" which can be decided only by taking all relevant circumstances into consideration so that the protection afforded to tenant is not rendered illusory or whittled down. The tenant cannot be evicted on a false plea of requirement or "feigned requirement" (See also Rahabhar Productions Pvt. Ltd. v. Rajendra K.Tandon, AIR 1998 SC 1639 ; and Shiv Sarup Gupta v. Dr.Mahesh Chand Gupta, AIR 1999 SC 2507 )." He also drew the attention of this court towards a decision rendered in the case of Vinay Joseph and another versus Vith A.D.J., Bareilly and another, reported in 2009 (1) ARC 80, in which this court has held that the landlord is required to prove his bona fide need, in absence of which the respondent's application deserves to be rejected. He further cited a decision of this court rendered in the case of Natthu Ram versus 7th Additional District Judge, Varanasi and others, reported in 2005 (23) LCD 1151, in which it has been held that if during the course of proceeding of ejectment, the landlord makes an arrangement for another accommodation, his need stands satisfied. He further cited a case of Hon'ble Supreme Court rendered in the case of Badrinarayan Chunilal Bhutada versus Govindram Pamgopal Mundada, reported in AIR 2003 SC 2713 , in which it has been held that the conduct of the parties, their mutual relationship may also be relevant. In spite of the availability of ground for eviction being legally sustainable, for the purpose of deciding the issue as to comparative hardship, the court may take into consideration availability of such other premises with the landlord, which though not necessarily alternative to the suit premises, may still be available to accommodate the proven requirement of the landlord. The learned counsel for the petitioner further cited a case of Hon'ble Supreme Court, rendered in the case of Sudha Agrawal versus Xth Addl.District Judge and others, reported in (1999) 6 SCC 332 , in which the Hon'ble Supreme Court has held that the landlord can get an order of release in his favour only when he proves his need as bona fide before the Prescribed Authority, the relevant part of paragraph 5 of which is reproduced hereunder:- "5......... We have noticed earlier that the landlord can get an order of release in his favour only when he proves his need as bona fide before the Prescribed Authority. It is no doubt true that the application of the landlord is uncontested as the tenant is out of field, still the landlord has to establish his bona fide need. In fact the landlord is required to stand on his own legs and he cannot derive any advantage of absence of denfence of the tenant. The proceedings before the Prescribed Authority are like an uncontested suit, where there is no defence of the defendant. In such a suit the plaintiff in order to get a decree must prove his case to the satisfaction of the court. Applying the said principle to the present case we have no doubt in our mind that by application of Explanation (i) the landlord is not discharged from the burden of proving his need as bona fide. Further we also do not find any provision in the Act creating any presumption in favour of the landlord as regards his need as bona fide." On the other hand learned counsel for the respondents by drawing attention of this court towards the petitioner's carelessness to seek the alternative accommodation has submitted that in the case of Badrinarayan Chunilal Bhutada (Supra) the Hon'ble Supreme Court has held that the fact that the tenant could have shifted to other premises or has missed the opportunity of availing occupation of other premises or is likely to part with possession over other premises whereto his business can be or could have been shifted are all relevant factors for the purpose of release of the accommodation. More so, he further cited a decision of this court rendered in the case of Lala Ram Nath (Deceased) versus Vth Additional District Judge, Etawah and another, reported in 2009 (2) CRC page 116 to support the same very submission, in which the Hon'ble Supreme Court has also held that the landlord cannot be denied his property permanently for all times to come. In support of his submission he further cited a case of the Hon'ble Supreme Court, rendered in the case of Mohd. Ayub and another versus Mukesh Chand, reported in 2012 (1) CRC 1, relevant paragraph 11 of which is reproduced hereunder:- "11. In support of his submission he further cited a case of the Hon'ble Supreme Court, rendered in the case of Mohd. Ayub and another versus Mukesh Chand, reported in 2012 (1) CRC 1, relevant paragraph 11 of which is reproduced hereunder:- "11. Rule 16(2) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972 (for short, 'the said Rules') states which facts the Prescribed Authority has to consider while dealing with an application for release under clause (a) of sub-section (1) of Section 21 of the U.P.Act. Rule 16 (2) refers to building let out for purpose of any business and the facts which have to be taken into consideration are: (a) length of tenancy of the tenant; (b) availability of suitable accommodation for tenant; (c) whether the landlords existing business is more flourishing than that which is proposed to be set up by him in the leased premises and (d) need of self-employment of a son or married or unmarried or widowed or divorced or judicially separated daughter or daughter or a male lineal descendant of the landlord who has completed his or her technical education and who is not employed in government service." With the aforesaid observation the Hon'ble Supreme Court held that there is nothing on record to show that during the pendency of this litigation the respondent made any genuine efforts to find out any alternative accommodation. After going through the facts of the case as well as considering the rival submissions of the learned counsels for the parties, I find that the respondent has well established his bona fide requirement of shop. This fact is not disputed that the respondent's wife is running a shop of Lai, Chana, Chura, Batasa and other items on footpath in front of house, which needs a permanent accommodation. The petitioner maintains a house just 100 meters away, where he can run the Laundry. He has also not been able to establish his effort to seek an alternative accommodation, whereas the several shops have been constructed during the period of lis by the local authorities. The petitioner maintains a house just 100 meters away, where he can run the Laundry. He has also not been able to establish his effort to seek an alternative accommodation, whereas the several shops have been constructed during the period of lis by the local authorities. The accommodation of Railway Department allotted to the respondent does not make any difference on the subject in issue, as that is only the residential accommodation, whereas the petitioner requires the shop in question for his wife to facilitate her to provide a permanent accommodation for her business, who is running the shop on footpath, therefore, the comparative hardship of the respondent is well established. The respondent has also established his bona fide requirement of shop, which has been considered by the courts below, therefore, I am of the view that no interference is warranted in the orders passed by the courts' below. In the result the writ petition is dismissed. _