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2013 DIGILAW 586 (UTT)

Ram Prasad v. Prescribed Authority

2013-09-09

B.S.VERMA

body2013
Judgment B.S. Verma, J. Since the judgment and orders challenged in these writ petitions is same, therefore for sake of convenience, both these writ petitions are being disposed of this by common judgment and order. 2. These writ petitions have been filed by the landlord/petitioner for quashing the part of judgment and order dated 28.5.1998 passed by Prescribed Authority partially rejecting the release application as well as the judgment and order dated 14.6.2001 passed by Addl. District Judge/F.T.C.-Ist, Dehradun. 3. Brief facts of the case, giving rise to this writ petition are, that petitioner being owner and landlord of two shops in dispute filed release application u/s 21(1)(a) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (for short, U.P. Act No.13 of 1972) for eviction of the respondent/tenant from one shop on the ground that his family consists of petitioner himself, his wife, two sons and one unmarried daughter and income which he is getting from business is so meagre that he is unable to meet out the day to day requirement of his family. Therefore, he has bona fide requirement of that shop occupied by the respondent for expansion of his business of oil expeller. During the pendency of proceedings of the release application, son of the petitioner namely Dhiraj who during the relevant point of time was doing his Engineering Ist year dropped his studies and got engaged with his father but he was not willing to continue business with his father i.e. the petitioner/applicant and wanted to run his own independent business. This requirement of the petitioner’s son led the petitioner to amend the release application and subsequently a prayer for release of second shop was also incorporated in the application. The release application was contested by the respondent/tenant by filing written statement. Both the parties led documentary evidence by way of affidavits along with annexure in support of their respective contentions. After hearing both the parties and after going through the evidence led by them, learned Prescribed Authority, vide judgment and order dated 28.5.1998, partly allowed the release application for one shop for need of petitioner’s son. Feeling aggrieved by the partial release of one shop only, the petitioner/landlord preferred an appeal before the District Judge. The respondent/tenant aggrieved by the partial release in favour of the petitioner/landlord also preferred an appeal. Feeling aggrieved by the partial release of one shop only, the petitioner/landlord preferred an appeal before the District Judge. The respondent/tenant aggrieved by the partial release in favour of the petitioner/landlord also preferred an appeal. By the impugned judgments and orders dated 14.6.2001, Additional District Judge set aside the order of the trial court thereby rejecting the release application in toto. Further aggrieved, the petitioner/landlord has filed the present writ petition before this Court. 4. At the outset it may be mentioned that the scope of writ jurisdiction under Articles 226/227 is limited. This Court in exercise of writ jurisdiction cannot sit like a court of appeal and cannot re-appreciate or re-evaluate the evidence so as to arrive at a different conclusion. Only perversity in the impugned order can be seen to find out whether there is a case of misreading of evidence by the courts below. 5. I have heard learned counsel for the parties and perused the supplementary affidavit and counter affidavit, as well as rejoinder affidavit. 6. The relationship of landlord and tenant is admitted to the parties. 7. Sri B.P. Nautiyal, learned senior counsel has firstly argued the case of petitioner/landlord’s son and has contended that the learned appellate court has set aside the finding of the Prescribed Authority whereby the release application was partly allowed in respect of need of son on the ground that he does not want to continue in business of his father of oil expeller and wants to set up his independent business. The finding of the appellate court that petitioner/landlord’s son had himself filed an affidavit to the effect that he does not want to continue in the business of oil expeller along with his father, therefore, the need is not genuine and that comparative hardship is also not tilted in favour of petitioner is a perverse finding and is liable to be set aside. In support of his contention, learned senior counsel has placed reliance upon a judgment of Apex Court in the case of Mohd. Ayub and another vs. Mukesh Chand reported in AIR 2012 SC 881 . 8. Per contra, Sri V.K. Kohli, learned senior counsel appearing for tenant/respondent while supporting the judgment and order of the appellate court has argued that need was shown by landlord to establish his son in independent business since he was earlier assisting his father in business. Ayub and another vs. Mukesh Chand reported in AIR 2012 SC 881 . 8. Per contra, Sri V.K. Kohli, learned senior counsel appearing for tenant/respondent while supporting the judgment and order of the appellate court has argued that need was shown by landlord to establish his son in independent business since he was earlier assisting his father in business. To start his independent business, the petitioner/landlord had enough accommodation on which the landlord’s son could start his business. According to him, the learned appellate court has rightly allowed the appeal of the tenant thereby setting aside the order of the Prescribed Authority whereby one shop was released for need of son. 9. It is not in dispute that at the time when release application was filed landlord’s son was pursuing his engineering Ist year, which he dropped later on and started assisting his father in business. But, as he was not willing to continue business with his father and wanted to set up his independent business, therefore, the landlord amended his release application seeking release of another shop also besides the shop which the landlord had required to expand his own business. 10. In view of the rival contentions of the parties, so far as need of the landlord to establish his son in independent business is concerned, since the landlord is carrying out the business from a very small portion and there is no other shop available with the landlord from where he can establish his son in the business, I am of view that the order passed by learned Prescribed Authority releasing the shop in favour of landlord for need of his son does not suffer from any error and the shop was rightly released in favour of son of the landlord. 11. So far as the case of landlord himself is concerned, he has specifically pleaded a case that he wants another shop to expand his business as he has no godown to store articles and goods of the shop. In the written statement, it was pleaded on behalf of the tenant that since the landlord is having separate godown therefore he has no requirement of any godown. In the written statement, it was pleaded on behalf of the tenant that since the landlord is having separate godown therefore he has no requirement of any godown. Besides this, it was also pleaded in the written statement that besides these two shops the petitioner has two more shop, adjacent to the premises under the tenancy of the opposite party which has been let out and where business under the name and style “Basant Oil Mill’ is being carried out. Learned Prescribed Authority before delivering its judgment made a spot inspection and found that godown which was alleged to have been in possession of the landlord is not even in his possession; in that godown furniture was stored and, according to landlord, furniture business is of their family members. So far as shop Basant Oil Mill is concerned, it is also not in possession of landlord, some other persons is sitting in that shop. But after evidence, learned Prescribed Authority held that since there is sufficient space to store articles and goods of shop in the shop premises there is no need of a separate godown to the landlord and rejected the application of the landlord for his own need. 12. Learned senior counsel appearing for petitioner has contended that landlord has a right to expand his business in order to enhance the income of his family members and therefore there is bonafide requirement of the shop to the landlord for godown purpose and the finding of the learned Prescribed Authority as well as that of the appellate court are perverse finding on this issue. 13. In the case of Shamshad Ahmad and others vs. Tilak Raj Bajaj(deceased) through L.R.s. and others [ (2008) 9 SCC 1 ], the Apex Court has held that it is no doubt true that the tenancy was created before about fifty years but that should not be a ground for depriving the landlord for doing business if the requirement of the landlord is bona fide and reasonable. In the case at hand as discussed above, the landlord has bonafide need of the shop in question to settle his son in some other business as well as to expand his own business hence he cannot be deprived for doing the business on the disputed shop on the ground of old tenancy and goodwill assumed by the tenant. 14. In the case at hand as discussed above, the landlord has bonafide need of the shop in question to settle his son in some other business as well as to expand his own business hence he cannot be deprived for doing the business on the disputed shop on the ground of old tenancy and goodwill assumed by the tenant. 14. Learned senior counsel appearing for respondent has contended that in the affidavit which was filed by the plaintiff the plaintiff pressed his need for one shop. Therefore, he cannot ask for release of another shop. In reply thereto, learned counsel for the petitioner has submitted that petitioner’s son dropped his studies in the year 1994 then the application for amendment in the release application was moved which was allowed and para-18-A was added to this effect that both shops are required to establish his son as well as for expansion of his business. Therefore, in view of subsequent event, the application was amended and thereafter his son also filed an affidavit and the shop was released in his favour. 15. Now, it is to be seen whether the landlord has bonafide requirement of shop for expansion of his business. In the application, the petitioner has pleaded that his family consists of himself, his wife, two sons and one unmarried daughter. The evidence was adduced to this effect also. This fact is not disputed that the shops are situated very near to the premises in question. This fact is not denied that learned Prescribed Authority has observed after making spot inspection that the applicant petitioner has no godown to store articles but at the same time held there is no need of the same since he can use the premises for godown purpose. 16. Sri V.K. Kohli, Senior Advocate has contended that both the courts below was of the same view that there is no bonafide requirement and comparative hardship to landlord for shop therefore this finding cannot be interfered in the writ jurisdiction since the writ court cannot interfere with the finding of fact of bonafide need. 17. Learned senior counsel appearing for tenant has further contended that Rule 16(2) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972 was not considered. 18. It is true that scope of writ jurisdiction is very limited. 17. Learned senior counsel appearing for tenant has further contended that Rule 16(2) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972 was not considered. 18. It is true that scope of writ jurisdiction is very limited. The writ court cannot re-appreciate the evidence like in an appeal but in the case at hand there is no need to re-appreciate any evidence. On the face of record, this fact is not disputed that landlord is not having any godown. Apart from that, the tenant/respondent who is in possession of these two shops is using one shop for business purpose and the other one is being used by him for residential purpose. This fact is also admitted to the counsel for opposite party. 19. Prima facie it appears that when a person is using a shop for residential purpose it means he has no need of the same for business purpose. The finding of the learned Prescribed Authority as well as the appellate court are perverse finding. This fact has not been considered by both the courts below that the landlord has a legitimate right to expand his business to enhance the status of his family members as has been held by the Apex Court in the cases of Shamshad Ahmed and Mohd. Ayub (supra). 20. Apart from this, it has also come in evidence that the tenant has not made any sincere effort to search for alternate accommodation. Therefore, this Court is of the considered view that judgment of the appellate court suffers from manifest error of law in not considering the need of employed son of landlord on the ground that he does not want to continue oil business. On this ground, learned appellate court has held that there is no bonafide requirement of shop to the landlord for his son. This finding given by the learned appellate court is perverse since the Apex Court has held in Mohd. Ayub and another vs. Mukesh Chand reported in AIR 2012 SC 881 , as follows:- “It is well settled the landlord’s requirement need not to be a dire necessity. The court cannot direct the landlord to do a particular business or imagine that he could profitably do a particular business rather than the business he proposes to start. Ayub and another vs. Mukesh Chand reported in AIR 2012 SC 881 , as follows:- “It is well settled the landlord’s requirement need not to be a dire necessity. The court cannot direct the landlord to do a particular business or imagine that he could profitably do a particular business rather than the business he proposes to start. It was wrong on the part of the District Court to hold that the appellant’s case that their sons want to start the general merchant business is a pretence because they are dealing in eggs and it is for the landlord to decide which business he wants to do. The court cannot advise him. Similarly, length of tenancy of the respondent in the circumstances of the case ought not to have weighed with the courts below.” 21. So far as the need which was established by the landlord/petitioner for godown purpose to store the articles, it has been rejected by both the courts below on the ground that he can store articles in the shop premises. In view of judgement of Apex Court passed in the case of Shamshad (supra) the landlord has a right to expand his business. This aspect has not been considered by the learned Prescribed Authority as well as the appellate court. Therefore, the findings given by both the courts below on this issue are liable to be set aside and the release application filed in respect of two shops is liable to be allowed. 22. Accordingly, the writ petitions are allowed. Impugned orders dated 28.5.1998 passed by Prescribed Authority so far it relates to rejection of release of landlord as well as the judgment and order dated 14.6.2001 passed by Addl. District Judge/F.T.C.-Ist, Dehradun are set aside. Application for release of shops in question is allowed in toto. However, to do the complete justice, the respondent/tenant is granted one year three month’s time to vacate the disputed premises and to deliver its peaceful and vacant possession to the petitioner/landlord, provided the respondent/tenant furnishes a written undertaking before the Prescribed Authority to that effect within a period of eight weeks from today. In case, the respondent/tenant fails to furnish the said undertaking within the stipulated period, the petitioner/landlord would be at liberty to get the disputed premises vacated through court in accordance with law.