Research › Search › Judgment

Allahabad High Court · body

2012 DIGILAW 1554 (ALL)

Mohammad Islam v. Addl. District Judge, Jhansi and Others

2012-07-16

SUDHIR AGARWAL

body2012
Sudhir Agarwal, J.— 1. Heard Pt. K.K. Dubey, Advocate for petitioner and Sri Rishikesh Tripathi, Advocate for respondents no. 3 and 3/1. 2. This writ petition is directed against the order dated 15.07.2010 passed by Prescribed Authority releasing the premise in dispute, i.e., Shop No. 39/1 in favour of landlord and appellate order dated 09.04.2012 rejecting petitioner's appeal and confirming the order of Prescribed Authority. 3. The property in question initially belong to one Suresh Chandra Agrawal. He filed an application registered as P.A. Case No. 1 of 2005 seeking release of premise in question under Section 21(1)(a) of Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the "Act, 1972") on the ground that his son Sachin Agrawal, aged about 26 years is married and he want the shop in question vacated for his son who has to start his business of hosiery in the aforesaid shop. The petitioner-tenant filed his written statement in which he took an objection that there were some other shops which were earlier in the tenancy of Sri Sudama Prasad Nikhra and Sri Tiwari and the said shops were vacated about 4-5 years back but landlord leased out the same to other tenants on enhanced rent and, therefore, need of landlord is not genuine. He also pointed out that some shops were sold by landlord after getting vacated. 4. The Prescribed Authority having considered the above submissions, found that need of landlord is bona fide and comparative hardship also lie in his favour and, therefore, allowed the application. The same has been confirmed in appeal also. 5. Sri Dubey, learned counsel for the petitioner drew my attention to averments made in para 8 of written statement and submitted that there is virtually no findings on this aspect in the impugned orders. He further submitted, when there are a large number of shops owned by landlord and for some of shops the landlord has also got possession, the application for release of other or another shop, should be considered with great caution. Very sparingly such an application in respect to another or other shop should/can be allowed since the onus lie upon landlord in such circumstance to show bona fide need is very heavy and the Courts under Act, 1972 should consider the matter very cautiously. 6. Very sparingly such an application in respect to another or other shop should/can be allowed since the onus lie upon landlord in such circumstance to show bona fide need is very heavy and the Courts under Act, 1972 should consider the matter very cautiously. 6. From the record it appears that there were four shops which became available to landlord long back but in order to meet household expanses, business and also the medical treatment of wife of Sri Suresh Chandra Agrawal, four shops were sold by him on 28.10.1995, 09.07.1997, 08.10.1997 and 14.04.2001. These facts have not been disputed and the courts below have also recorded a concurrent finding. Wife of Late Sri Suresh Chandra Agrawal was suffering from Cancer. He himself was suffering from renal failure. Moreover marriage of three sisters of substituted landlord, i.e., Sri Sachin Agrawal were also due at that time. Having not disputed these facts it cannot be said that sale of shops by landlord in 1995-2001 was not genuine. 7. So far as the two shops which fell vacant sometimes in 2001, as stated by Sri Dubey, learned counsel for the petitioner, are concerned, at that time the landlord's son was about 21 years of age and admittedly was unmarried. The fact that the need for which shop is question was required existed at that time also has not been shown by learned counsel for the petitioner. Moreover, it has also come on record that landlord, in order to provide business to his son, made him available some accommodation on the first floor. The respondent no. 3/1 started his business of hosiery on the first floor but having suffered losses due to premise not being suitable for such business the same had to be closed. On this aspect also concurrent findings have been recorded by courts below and the same have not been shown perverse or contrary to record. It is in these circumstances, in the year 2006 release application in question was filed by landlord seeking vacation of shop in question. 8. So for as the question of choice about shop is concerned, obviously the same has to be honoured with landlord being his privilege having priority over tenant's suggestion. 9. The judgment relied by learned counsel for the petitioner, i.e., Viriety Emporium Vs. V.R.M. Mohd. Ibrahim Naina, 1985 SCC (1) 251, does not help him in any manner. 8. So for as the question of choice about shop is concerned, obviously the same has to be honoured with landlord being his privilege having priority over tenant's suggestion. 9. The judgment relied by learned counsel for the petitioner, i.e., Viriety Emporium Vs. V.R.M. Mohd. Ibrahim Naina, 1985 SCC (1) 251, does not help him in any manner. There the suits against seven different tenants were filed almost simultaneously. All these seven shop were released in favour of landlord. It is in these circumstances, the matter was examined by Apex Court, whether there was any justification to release seven shops at the same time in favour of landlord. Four shops were situated on ground floor and three on first floor of the same building. It was noticed by Court that besides above accommodation there was further accommodation on the first floor whereon the landlord was running a wholesale business and wanted to extend the same by entering into a retail business instead of wholesale. 10. The facts are much different in the present case. Opening of hosiery shop at the first floor and its closure has not been disputed by learned counsel for the petitioner. 11. He, however, further submitted that in case the shop at ground floor is to be vacated, petitioner ought to have been provided alternative accommodation by allotting the shop on first floor which was in possession of landlord. However, this aspect has also been considered by courts below and they have found that landlord intend to run the shop on ground floor and to maintain go-down on first floor. This need of landlord has been found genuine and bona fide by both the courts below. 12. In my view, there is no error apparent on the face of record warranting interference in the impugned orders. Both the courts below have recorded concurrent findings of fact which have not been shown perverse or contrary to record. The writ petition lacks merit. Dismissed. No costs. _