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2012 DIGILAW 685 (ALL)

Rajeev Sethi v. Shiv Shankar Agarwal

2012-03-21

SHASHI KANT GUPTA

body2012
Shashi Kant Gupta, J.;- 1. A release application was filed by the respondent landlord under Section 21 (1) (a) of the UP Act No. 13 of 1972 (in short "Act") for the need of his son for doing business. In the release application, the landlord prayed that the shop was required for his son who intended to carry on business. The petitioner filed his written statement and contested the matter. The Prescribed Authority, after considering the material available on record, allowed the release application by order dated 13.10.2010. Being aggrieved and dissatisfied with the order dated 13.10.2010, the petitioner filed a Rent Control Appeal No. 15 of 2010 and the same has been dismissed by the Additional District Judge, Court No. 4, Mathura on 24.1.2012. Hence, the present writ petition. 2. Learned counsel for the petitioner has submitted that the landlord had sold off one of his shop situated just adjoining the disputed shop just 18 days before the filing of the release application and the application under Section 21 of the Act was filed mainly on the ground that the son of the landlord Nitin requires the disputed shop for running his independent business even though he was already carrying on business in a rented premises. It was further submitted that since the son of the petitioner was already carrying on business in a rented shop, there was no occasion for him to shift his business to the disputed shop, particularly when no legal proceeding for eviction was pending against him. Lastly, it was submitted that the court below has not considered the question of partial release of the disputed premises in order to balance the equities between the parties. 3. Per contra, Sri Rahul Sahai, learned counsel for the respondent has supported the impugned order and submitted that the appellate court, after considering the material available on record, dismissed the appeal and affirmed the judgment and order passed by the prescribed authority. He further submitted that in fact the sale deed was executed by the landlord of an open piece of land adjoining the disputed shop. The said property was not in the nature of a shop. It was further submitted that no plea of partial release of the disputed shop was ever taken by the petitioner. He further submitted that in fact the sale deed was executed by the landlord of an open piece of land adjoining the disputed shop. The said property was not in the nature of a shop. It was further submitted that no plea of partial release of the disputed shop was ever taken by the petitioner. It was further submitted that the last assessment of the adjoining "the so-called 'shop" as alleged by the petitioner was made in the year 1993 and since it was in a dilapidated condition it later on collapsed, as such, the sale deed was executed for an open piece of land and not of a constructed portion/shop as is quite evident from the sale deed. He further submitted that the petitioner neither in his written statement nor before the trial court or even before the appellate court had taken the plea of partial release of the disputed shop, as such, this plea cannot be taken for the first time before this Court. It was further submitted that the son of the landlord is carrying on business in the rented shop, as such, he cannot be prevented from running the business from his own shop. 4. Heard learned counsel for the petitioner and Sri Rahul Sahai, learned counsel for the respondent and perused the record. 5. Both the courts below have recorded a finding of fact and categorically held that the sale deed was executed by the landlord only of a open piece of land and not of a constructed portion/shop as is quite evident from the sale deed. It was also held by the court below that the tenanted accommodation which was earlier occupied by the son of the landlord Nitin has already been vacated by him and he has no other shop to carry on business. The courts below have also recorded a categorical finding that the petitioner who is a doctor is employed in Holy Family Hospital, Okhala Road, New Delhi and is residing in New Delhi therefore, in case, he is evicted from the disputed shop he will not suffer any hardship. 6. A bare perusal of the record shows that the petitioner neither in his written statement nor before the trial court or even before the appellate court had taken the plea of partial release of the disputed shop. 6. A bare perusal of the record shows that the petitioner neither in his written statement nor before the trial court or even before the appellate court had taken the plea of partial release of the disputed shop. Even the dimension of the disputed shop was neither disclosed by the petitioner, as such, there was no occasion for the court below to consider the question of partial release. 7. The Apex Court in the case of Dhannalal Vs. Kalawatibai and others, 2002 STPL (LE) 31226 SC in paragraph 27 of the judgment has held as follows; "So far as the challenge to proof of requirement is concerned it merits a summary dismissal. The Rent Controlling Authority and the High Court, both, have on a meticulous evaluation of evidence found the requirement proved. None of the landlords is possessed of any other suitable alternative accommodation of his or her own to satisfy the requirement found proved. A landlord cannot be compelled to carry on business in rented premises and the proved requirement cannot be defeated by the tenant submitting that the landlord can start or comfortably continue to run his business in rented premises. It has come in evidence that the landlords have secured possession of some premises in Ahilyapura locality situated at a short distance from the suit premises but the Ahilyapura accommodation is again a tenanted accommodation and hence irrelevant for defeating the claim of the landlords. To be an alternative accommodation relevant within the meaning of Section 12(1)(f) or Section 23-A(b) it must be 'of his own', that is, the one 'owned' by the landlord. Another alternative accommodation pointed out by the tenant is the one situated on the first floor of the building. It has come in the evidence that the second floor of the building is used for residence of the landlords while the first floor is used partly as a godown and partly for stitching the clothes which are sold as readymade garments in the shop of respondent no.3. To amount to an alternate non-residential accommodation so as to defeat the requirement of the landlord for the suit premises, it should be reasonably suitable non-residential accommodation. It should be suitable in all respects as the suit accommodation is. In Shiv Sarup Gupta Vs. Dr. To amount to an alternate non-residential accommodation so as to defeat the requirement of the landlord for the suit premises, it should be reasonably suitable non-residential accommodation. It should be suitable in all respects as the suit accommodation is. In Shiv Sarup Gupta Vs. Dr. Mahesh Chand Gupta (1999) 6 SCC 222 this Court has held that an alternative accommodation, to entail denial of the claim of the landlord, must be reasonably suitable, obviously in comparison with the suit accommodation wherefrom the landlord is seeking eviction." 8. Thus in view of the above discussion, a landlord cannot be compelled to carry on business in rented accommodation. 9. Both the courts below have given cogent, convincing and satisfactory reasons while passing the order in favour of the landlord. The findings recorded are neither perverse nor based on any extraneous or irrelevant material. The appellate court below have on meticulous evaluation of evidence found the need of the landlord to be bonafide and genuine and the comparative hardship in favour of the landlord. The findings recorded by the courts below are based on material on record and this Court, while exercising its power under Article 226 of the Constitution of India, can not substitute its opinion for the opinion of the courts below unless it is found that the conclusion drawn by the courts below is manifestly illegal and perverse. 10. No other point has been pressed by the learned counsel for the petitioner. 11. In view of the above, I do not see any illegality or infirmity in the order passed by the court below. 12. In the result, the writ petition is dismissed.