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2012 DIGILAW 522 (UTT)

BIMLA DEVI v. ADDITIONAL DISTRICT JUDGE/F. T. C.

2012-09-04

B.S.VERMA

body2012
JUDGMENT [Hon’ble B.S. Verma, J. (Oral)] By means of this petition the petitioner has south a writ in the nature of certiorari quashing the impugned order dated 17-12-2005 passed by respondent No.1, Additional District Judge/F.T.C. VII, Dehradun in Rent Control Appeal No. 68 of 1998, Smt. Chandra Ran and others vs. Smt. Bimla Devi and others, contained in Annexure No.1 to the writ petition. 2. Brief facts of the case giving rise to this writ petition are that the petitioner Smt. Bimla Devi Mittal filed release application U/S 21(1)(a) of U.P. Act No. 13 of 1972, before the Prescribed Authority/ 1st Addl. Civil Judge(S.D.), Dehradun on the ground that she is landlady of shop No. 101/4, situated at Tilak Road, Dehradun, in which Deshi Ram was tenant. After his death, the respondents, legal heirs of Deshi Ram are occupying the shop as tenants. The applicant has a big family consisting of the applicant herself, her husband and two married sons Vijay Kumar and Ajay Kumar. In the family of Vijay Kumar, there are four members, he himself, his wife and two children and in the family of Ajay Kumar, he himself, his wife and are two daughters. Vijay Kumar has no independent business and Ajay Kumar in the adjoining shop to the shop in dispute runs his business in the name of Gift Gallery. The shop in possession of Ajay Kumar has no sufficient space to display the items kept in the shop. He has bonafide need to expand his business, so that the income may increase to feed up the big family. On the other hand the original tenant Deshi Ram has a son Praveen Kumar who does the transport business and he has sufficient income by plying his three wheeler. Opposite party Smt. Chandra Ran is a lady who maintain a veil and she does not do any business in the shop in question. The applicant family has bonafide need of shop in question and comparative hardship is also in their favour. 3. The opposite party-tenants filed objection against the release application and alleged that the applicant-landlady has no bonafide need of the shop in question. It was also alleged that the landlady and her sons have sufficient income from agriculture and they have no need of any other business. 3. The opposite party-tenants filed objection against the release application and alleged that the applicant-landlady has no bonafide need of the shop in question. It was also alleged that the landlady and her sons have sufficient income from agriculture and they have no need of any other business. The applicant has also other shops in ground floor and in the shop in possession of applicants has sufficient space to run the business of Gift Gallery. The opposite party does not do the transport business and he has five daughters out of whom four daughters are married. It is further alleged that the applicant has no bonafide need of the shop in question and the release application has been filed only with a view to evict him from the shop. 4. The applicant before the Prescribed Authority also offered vacant space covered with shutter to the tenant/opposite party to run his tea shop. 5. The learned Prescribed Authority after hearing the parties and perusing the documentary evidence filed by parties, came to the conclusion that the applicant has bonafide need of the shop in question and comparative hardship is also in her favour and accordingly allowed the release application and directed the tenant to handover the disputed shop to the landlady within a month and option was given to the tenant to file application within 15 days to the offer made by the landlady before the appropriate authority and in the event of not accepting the offer, the landlady shall pay two years rent to the opposite party-tenant, as damages, within twenty days. 6. Feeling aggrieved by the judgment and order passed by Prescribed Authority the tenant preferred appeal before the Addl. District Judge/VII F.T.C. Dehradun, who vide impugned judgment and order allowed the appeal and the judgment and order passed by the Prescribed Authority was set aside and the release application was rejected. 7. Now the landlady/petitioner has filed this writ petition, reiterating the facts mentioned in the release application. It is alleged in the writ petition that they have bonafide need of the shop in question for the expansion of business of Gift Gallery which is being run in the adjoining shop which has no sufficient space. The shop in possession of son of the petitioner has a frontage of only 9 feet and they have applied for a franchisee which require 15 feet frontage. The shop in possession of son of the petitioner has a frontage of only 9 feet and they have applied for a franchisee which require 15 feet frontage. The petitioner reiterated this fact that the tenant was doing transport business and also running canteen in the C.J.M. compound and sublet that shop to one Sri Sanjeev Kumar, who was running the shop in dispute. The landlady/petitioner also reiterated this fact that they have bonafide need of shop in question for expansion of their business to feed up the large joint family. 8. The respondent/tenant filed counter affidavit and he also reiterated the facts mentioned in the objection filed before the Prescribed Authority. It is further alleged in the counter affidavit that the petitioner holds 0.83 6 hecatare of land in village Baruwala Eastern Doon and some other land in the name of petitioner’s husband in village Thano, Easter Doon. There is also land in the names of her sons and the petitioner’s family has farming business and sufficient income to feed up the family. The petitioner also filed two S.C.C. cases against the respondent/tenant and by hook or by crook they want to evict him from the shop in question. 9. I have heard learned counsel for the parties and perused the material on record. 10. Learned counsel for the petitioner has submitted that on the point of income of the petitioner, the learned Addl.District Judge/F.T.C. VII, has given finding that the landlady has sufficient income from agriculture, whereas the income from agriculture has no concern with the release of shop in question. It is specific case of the landlady petitioner that they want to expand their business of Gift Gallery and they have no sufficient space for the same, therefore, they have bonafide need of the shop in dispute. 11. Learned counsel appearing on behalf of respondent/tenant has contended that the depth of shop in dispute is 9-10 feet x 17-10 feet and the depth of shop in possession of Ajay Kumar where the Gift Gallery business is established is also 9-10 feet x 17-10 feet and the business can very well be run in that shop. 11. Learned counsel appearing on behalf of respondent/tenant has contended that the depth of shop in dispute is 9-10 feet x 17-10 feet and the depth of shop in possession of Ajay Kumar where the Gift Gallery business is established is also 9-10 feet x 17-10 feet and the business can very well be run in that shop. He further contended that the landlady also filed SCC Suit against the tenant on the ground of default in payment of rent which is still pending and the conduct of the petitioner shows that by hook or by crook she wants the eviction of the respondent tenant and if the tenant is evicted from the shop in question he would be put to a great hardship. 12. Having considered the rival contentions of parties and going through the judgments passed by the Prescribed Authority and the Appellate Court, it reveals that the learned Appellate Court has not considered the bonafide need of the landlady to expand their business of Gift Gallery. It has specifically been pleaded in the release application that the shop in possession of son of the petitioner has a frontage of only 9 feet and they have applied for a franchisee which require 15 feet frontage, but the learned Appellate Court has not considered this aspect and has given a finding that the landlady has sufficient income from agriculture. This fact is not in dispute that the family of landlady has business of Gift Gallery in the adjoining shop, to the shop in question. As the landlady/petitioner wants to expand the business they have certainly bonafide need of the shop in the tenancy of the respondent. In the release application this fact is mentioned that the tenant/respondent is doing the business of transport by plying three wheeler. Although the tenant has denied this fact in the objection filed before the Prescribed Authority, but from the recital of paper No. 198/A-3, on lower court record, the learned Prescribed Authority has opined that tenant Praveen Kumar had lodged F.I.R. in the P.S. Kotwali about the theft of three-wheeler(Vikram) and from this, the assertion of Praveen Kumar that he was not doing transport business, is belied. 13. 13. Since the landlady has filed the release application that the premises in question is required for expansion of existing business of Gift Gallery, it cannot be a ground to say that the landlady is already having sufficient income from the agriculture. 14. In the case of Sait Nagjee Purushotham & Co. Ltd. vs. Vimalabai Prabhulal and others, reported in (2005) 8 Supreme Court Cases 252, the Hon’ble Apex Court has observed that where premises is required for expansion of existing business, it is always the prerogative of the landlord to decide for what purpose he requires premises in question and it cannot be a ground to say that landlord is already having his business in other cities and therefore such need is not a genuine need. It has further been observed that it is not tenant who can dictate terms to landlord and advise him what he should do and what he should not. It is always the privilege of landlord to choose the nature and place of business. Thus in the instant case the finding of appellate court that the landlady had income from agriculture and she has no bonafide need for expansion of existing business is a perverse finding. 15. It is also to be mentioned here that the landlady had also given offer to the tenant to run his tea shop in another space covered by shutter and the learned Prescribed Authority has also given option to the tenant to go ahead to the option, but it appears that the tenant did not accept the offer and filed the appeal against the judgment and order passed by the learned Prescribed Authority. 16. The learned Prescribed Authority after considering the documents filed by parties and hearing the parties, has come to the conclusion that the landlady has bonafide need of the shop in question for expansion of their existing business, therefore, the income from other sources like agriculture has no relevance. 17. The learned Prescribed Authority after appraisal of evidence on record has come to the conclusion that the applicant/petitioner has bonafide need of the premises in question for expansation of existing business and comparative hardship is also in her favour. I do not find any illegality and perversity in the judgment and order passed by learned Prescribed Authority. 17. The learned Prescribed Authority after appraisal of evidence on record has come to the conclusion that the applicant/petitioner has bonafide need of the premises in question for expansation of existing business and comparative hardship is also in her favour. I do not find any illegality and perversity in the judgment and order passed by learned Prescribed Authority. On the other hand the learned Appellate Court has committed a manifest error of law by not considering the bonafide need of landlady for expansion of the existing business and has recorded the finding that the landlady has income from other sources i.e. by agriculture income, which has no relevance for a release of shop which is bonafidely required for expansion of business as has been held by the Apex Court in the judgment of Sait Nagjee Purushotham & Co. Ltd. vs. Vimalabai Prabhulal and others, reported in (2005) 8 Supreme Court Cases 252, (supra). 18. The writ petition is allowed. The impugned judgment and order dated 17-12-2005 passed by learned Addl. District Judge/F.T.C.-VII, Dehradun is set aside. The release application filed by the petitioner/landlady is allowed and the judgment and order passed by Prescribed Authority is maintained. 19. However, one year’s time is allowed to the respondent/tenant to vacate the premises in question, provided he gives an undertaking before the Prescribed Authority within a period of eight weeks from today that he will vacate the premises in question and will handover the peaceful possession to the applicant/petitioner after one year, failing which the landlady/petitioner will have a right to evict the tenant/respondent by due course of law.