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2012 DIGILAW 270 (ALL)

Sarvesh Kumar and another v. Rajeev Kumar and another

2012-01-31

DILIP GUPTA

body2012
Dilip Gupta, J.;- The landlords have filed this petition for quashing the judgment and order dated 9th April, 2010 by which the Appeal filed by the tenant for setting aside the order dated 9th November, 2006 of the Prescribed Authority allowing the application filed by the landlord under Section 21(1)(a) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the ''Act') for release of the shop, was allowed and the order dated 9th November, 2006 passed by the Prescribed Authority was set aside. The landlords had filed the application under Section 21(1)(a) of the Act on 22nd August, 2003 for release of the tenanted shop with the allegation that Rajeev Kumar-(opposite party no.1 and respondent no.1 in this petition) was the tenant of the shop which was purchased by them by registered sale deed dated 8th August, 2000 from Rajesh Kumar (proforma opposite party no.2 in the release application and proforma respondent no.2 in this petition); that the applicants were unemployed and wanted to start their independent business and for this purpose they sent a notice dated 18th April, 2001 to the tenant by registered post informing him that they had become the landlords of the shop and they require it for their bona fide need; that the tenant was not doing any business from the shop and had kept it locked; that the tenant had two other shops from where he was doing business and that the landlords were likely to suffer greater hardship in case the shop was not released. The tenant filed objections stating that his father was a tenant in the shop since 1950 and after his death in 1994 he became the tenant; that on 2nd October, 2003 the the applicants pulled down the shop and a report to this effect was also lodged in the Police Station but the tenant continued to do business from the tenanted portion by putting a plastic sheet cover; that since the shop did not exist, it could not be bona fide required by the landlords; that the landlords had two other shops from where they could satisfy their needs; that the tenant was not doing business from the shop at Azad Nagar owned by Shailendra Singh and that his brother who was separately living, was doing business from this shop and that the tenant was also not doing business from the shop owned by Gulab Singh. The Prescribed Authority found that the landlords had not demolished the tenanted shop but the shop which was in a bad condition had fallen down due to heavy rains and the applicants who were educated unemployed and sitting idle needed the tenanted shop to start their business particularly when applicant no.1 was married and had two children and the tenant had not made any effort to search out any alternative accommodation after the filing of the release application by the landlords. The Prescribed Authority, therefore, allowed the application filed by the landlords by the order dated 9th November, 2006 holding that the landlords bona fide required the shop for doing business and that the landlords were likely to suffer greater hardship in case the shop was not released. This order of the Prescribed Authority was assailed by the tenant by filing an Appeal under Section 22 of the Act. This Appeal was intially allowed by the judgment and order dated 25th July, 2008 and the matter was remanded to the Prescribed Authority. This order was assailed by the landlords in Writ Petition No.45912 of 2008 which was allowed by the judgment and order dated 17th February, 2009 for the reason that the Appellate Court itself could decide the matter since evidence was available on the record. The judgment and order dated 17th February, 2009 is quoted below:- "Heard learned counsel for the petitioner. The respondents have not cared to appear. The service is deemed to be complete on them. The judgment and order dated 17th February, 2009 is quoted below:- "Heard learned counsel for the petitioner. The respondents have not cared to appear. The service is deemed to be complete on them. The present writ petition has been filed by landlord against an order order passed by District Judge, dated 25.7.2008 by which he has remanded the matter to the Prescribed Authority for reconsideration by stating that three issues have not been decided by the Prescribed Authority. Learned counsel for the petitioner has argued that the entire material and evidence was on record before the appellate court and he could have very well determined those issues as well as other issues relating to the dispute and there was no occasion to remand the matter to the court below. Three issues according to the appellate authority, which have been not decided, was the issue of giving the notice of the landlord to the tenant in accordance with the provisions of 21(1)(a), second issue was with regard to the landlord having two other shops for his use and the third issue was the tenant's having three other shops for his use. Since the entire material was on record before the appellate authority, learned counsel for the petitioner is justified in saying that the matter may be decided by the appellate authority itself. Accordingly, the order dated 25.7.2008 is set aside and the appellate authority is directed to decide all these three issues itself in accordance with law expeditiously after giving both the parties an opportunity of hearing preferably within a period of six months from the date a certified copy of this order is being placed before it. The writ petition is thus allowed." On remand, the Appellate Court again allowed the Appeal filed by the tenant by the judgment and order dated 9th April, 2010 for the following reasons:- 1. The bona fide need of the landlord was required to be examined since the relationship of landlord and tenant existed and the six months' notice required to be given by the landlord to the tenant as contemplated under the first proviso to Section 21(1)(a) of the Act had also been given. 2. The bona fide need of the landlord was required to be examined since the relationship of landlord and tenant existed and the six months' notice required to be given by the landlord to the tenant as contemplated under the first proviso to Section 21(1)(a) of the Act had also been given. 2. The applicants/landlords had come out with a case before the Prescribed Authority that they were educated unemployed and wanted to do independent business from the tenanted shop but there were two shops in their ownership which were available to them for doing business and in fact they were doing business from these shops. 3. The tenant had also pointed out that there was a plot in the name of the mother of the applicants on which a building was constructed by spending Rs.8 lacs. This building consisted of shops on the ground floor and residential portion on the first floor and the applicants were doing business from a shop on the ground floor of this building. 4. The applicants had not specified what business they would be doing and whether the tenanted shop was suitable for doing the business and, therefore, it cannot be said that the need of the landlords was bona fide. 5. The comparative hardship was also in favour of the tenant since he had no other place for doing business but the applicants had two shops in which both the brothers were doing the business and a third shop in the building owned by his mother in which also they were doing business. Learned counsel for the petitioners submitted that the finding recorded by the Appellate Court that the landlord did not bona fide require the tenanted shop is perverse. In this connection he has pointed out that the Appellate Court fell in error in coming to the conclusion that there were three shops available with the landlords for doing business. It is his submission that from two of these shops, his father was actually doing his business and the third shop claimed by the tenant in the alleged building constructed on the plot owned by the mother did not exist at all. It is also his submission that the landlords were educated unemployed and bona fide needed the shop for doing business and it was not necessary for them to give specific details of the business to be carried out by them. It is also his submission that the landlords were educated unemployed and bona fide needed the shop for doing business and it was not necessary for them to give specific details of the business to be carried out by them. It is his contention that in fact the tenant was not doing any business from the tenanted shop and was doing business from the shop situated in front of the tenanted shop from a shop of which the landlord was Shailendra Singh who had also filed an affidavit that Rajeev Kumar (respondent-tenant) was his tenant and was regularly paying rent to him. It is also his submission that the landlords were likely to suffer greater hardship and the finding to the contrary is perverse. Learned counsel for the respondents has, however, submitted that the Appellate Court, on a perusal of the evidence, recorded a categorical finding that the need of the landlords was not bona fide and in such circumstances no interference is required by the High Court as there was enough evidence before the Appellate Court to hold that the landlords had three shops with them from where they were doing their business and, therefore, the need of the landlords was not bona fide. It is also his submission that the landlords did not even specify what business they would do from the tenanted shop. The tenant, on the other hand, had no alternative shop from where he could carry his business and so the tenant was likely to suffer greater hardship. I have considered the submissions advanced by the learned counsel for the parties. It is not in dispute that the landlords had purchased the tenanted shop by registered sale deed dated 8th August, 2000 and had thereafter filed the application under Section 21(1)(a) of the Act for the release of the shop on 22nd August, 2003. The landlords had come out with a specific case that they were educated and unemployed and needed to establish their business from the disputed shop. The Appellate Court has rejected the plea of bona fide need of the landlords for the reason that they had three shops available with them from where they were doing business and that they had not even specified the details of the business they would like to do from the tenanted shop. The Appellate Court has rejected the plea of bona fide need of the landlords for the reason that they had three shops available with them from where they were doing business and that they had not even specified the details of the business they would like to do from the tenanted shop. The case of the landlords is that from the two shops pointed out by the tenant, their father was doing business. It is seen that in reply to the release application filed by the landlords, the tenant had stated in paragraph 17 that the landlords had two shops. From one shop retail business was being done and from the other shop wholesale business was being done. This fact was specifically denied in the rejoinder affidavit filed by the landlords and it was stated that one shop was owned by their father who was running a general merchant shop while the other shop was in the name of their mother from where their father was also doing his retail business. The applicants had no shop from where they could establish their business and it is for this reason that they had purchased the tenanted shop. It was for the tenant, in such circumstances, to establish by evidence that the landlords were the owners of these two shops and they were doing business from these shops but no evidence whatsoever was filed by the tenant to establish this fact. A bald allegation made on affidavit which was specifically denied by the landlords cannot be accepted. In such circumstances the finding recorded by the Appellate Court that the landlords were doing business from the aforesaid two shops is perverse. The tenant had also come out with a case that the mother of the applicants had a plot in her name in which a building was constructed which contained shops on the ground floor and the landlords were also doing business from one shop. This fact was stated by the tenant in paragraph 25 of the affidavit in which he stated that the mother of the applicants had spent about Rs.8 lacs in constructing the building and the applicants were doing business from a shop on the ground floor. This fact was stated by the tenant in paragraph 25 of the affidavit in which he stated that the mother of the applicants had spent about Rs.8 lacs in constructing the building and the applicants were doing business from a shop on the ground floor. It was specifically denied by the applicants in the affidavit filed by them and it was stated that neither the mother had spent Rs.8 lacs in constructing the building and nor were they doing any business from the shop on the ground floor since the building itself had not been constructed. It was also specifically stated by the landlords in their affidavit that the affidavits of two persons filed by the tenant namely Ram Pratap and Rakesh were false since Ram Pratap was actually residing outside and had no knowledge about the correct facts and the other witness Rakesh had also filed a wrong affidavit because he had strained relationship with the landlords. If it was the contention of the tenant that the building had been constructed by the mother and the applicants were doing some business from the shop situated on the ground floor of this building, documentary evidence was required to be filed to show that the building had been constructed and the landlords were actually doing business from a shop in this building but only a casual statement has been made in the affidavit which was specifically denied by the landlords. In such circumstances the finding recorded by the Appellate Court that the landlords were doing business from a shop situated on the ground floor of the building constructed by their mother is also perverse. Learned counsel for the respondent has placed reliance upon the affidavit filed by Ram Pratap in support of the tenant in which he stated that the landlords had three shops and it is submitted that there is no denial to this affidavit. Learned counsel for the petitioners has, however, placed before the Court the affidavit filed by the petitioners in which in paragraph 10 it is clearly stated by the landlords that the averments made by Ram Pratap in his affidavit are not correct and in fact Ram Pratap was an outsider and could have no knowledge of the facts stated in the affidavit. Thus, it is not possible to accept this contention of the learned counsel for the respondent. Thus, it is not possible to accept this contention of the learned counsel for the respondent. The contention of the landlords is that in fact the tenant was doing business from a shop situated just opposite the tenanted shop of which Shailendra Singh was the owner/landlord. Shailendra Singh had also filed his affidavit that Rajeev Kumar (respondent) was his tenant. It was sought to be suggested by the tenant that his brother was doing business from that shop but in the face of the affidavit filed by the landlord of that shop and in the absence of any evidence by the tenant, it is not possible to accept the contention of the tenant that his brother was doing business from the shop. Learned counsel for the petitioners has also submitted that the Appellate Court was not justified in not accepting the need of the landlords as bona fide since the landlords did not state what particular business they would do from the tenanted shop. Learned counsel for the respondent-tenant has, however, submitted that the Appellate Court committed no illegality in coming to the aforesaid conclusion. It is not necessary to give specific details of the business in the release application and in the present case it is seen that both the applicants were educated and unemployed and in fact applicant no.1-Sarvesh Kumar was married with two children. The applicant, therefore, bona fide needed the shop for doing business. In such circumstances when the landlords had no shop available with them for doing business and the tenant was doing business from another shop also, the comparative hardship is in favour of the landlords. The findings recorded by the Appellate Court have been found to be perverse. In such circumstances, it is not possible to accept the contention of the learned counsel for the respondent-tenant that the findings should not be interfered with in writ jurisdiction. The impugned judgment and order dated 9th April, 2010 of the Appellate Court is, accordingly, set aside and the order dated 9th November, 2006 passed by the Prescribed Authority is restored. The writ petition is, accordingly, allowed.