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2014 DIGILAW 2541 (ALL)

Shoorvir Tyagi v. Prem Finsec Pvt. Ltd.

2014-08-20

PANKAJ MITHAL

body2014
JUDGMENT Pankaj Mithal,J. Heard Sri Kshitij Shailendra, learned counsel for the petitioner. Sri Lalit Kumar has appeared for respondent landlord. 2. The dispute in the present writ petition is regarding first floor two room accommodation with kitchen, varandah, open courtyard, latrine and a bathroom. 3. The petitioner is a tenant in the aforesaid accommodation from the times of the previous owner and landlord. 4. The respondent landlord purchased the premises in dispute vide sale deed dated 28.6.2000. On the basis of the said sale deed respondent applied for its release on 15.12.2003 under Section 21 (1) (a) of U.P. Act No. 13 of 1972. The release application was rejected by the prescribed authority holding that the need of the respondent is not bonafide. 5. Aggrieved by the same, respondent preferred an appeal under Section 22 of the Act and the same has been allowed by the impugned judgment and order dated 23.7.2014. 6. It is against the appellate judgment and order dated 23.7.2014 allowing the appeal and the release application of the respondent that the petitioner has filed the present writ petition. 7. The submission of Sri K. Shailendra, learned counsel for the petitioner is that the residential accommodation can not be released for commercial purpose; the need of the respondent is not bonafide as the respondent is possessed of two vacant plots of land adjoining to the premises in dispute; the appellate court has not properly construed the comparative hardship of the parties; and the release application as filed was not maintainable against all the 8 tenants of the building. 8. It is admitted to the parties that the premises in dispute is situate on the first floor and is a part of a building on the ground floor of which there are 7 shops in tenancy of different persons. 9. The respondents had applied for release of the entire building and all the tenants were arrayed as the defendants. Subsequently some of the tenants of the shops on the ground floor entered into compromise and vacated the shops. Accordingly, their names were deleted from the release application. 10. The appeal was filed against the remaining tenants including the petitioner. The appeal was allowed against all of them. The other three tenants appears to have accepted the order of release passed by the appellate court. The petitioner alone has challenged it in this petition. 11. Accordingly, their names were deleted from the release application. 10. The appeal was filed against the remaining tenants including the petitioner. The appeal was allowed against all of them. The other three tenants appears to have accepted the order of release passed by the appellate court. The petitioner alone has challenged it in this petition. 11. The cause of action in the release application against all the tenants was common. Therefore, a joint release application was maintainable in law. 12. There is no dispute that the building in dispute on the ground floor has 7 shops and only a two room residential portion on the first floor. 13. It has been submitted that in view of Section 21 (1) 3rd proviso residential building can not be released for occupation of business purpose. 14. The relevant part of the above proviso is as under: - "Provided also that no application under clause (a) shall be entertained-------- (i) ................. (ii) in case of any residential building for occupation for business purposes." 15. Section 21(1) uses the phrase "building under tenancy" whereas clause (ii) of the 3rd proviso uses the word 'building' only. The difference in the phraseology indicates that the legislature was conscious that a building may consist of different portions which may be in different use and under different tenancies. Thus, the release of the building refers to the 'building under tenancy' and its nature depends upon the use of the building as a whole. 16. Clause (ii) to the 3rd proviso of Section 21 (1) emphasis on the 'residential building' and stipulates that it can not be released for commercial purpose. It do not refers to the tenancy or the nature of the tenanted portion. 17. A building may be partly residential and partly commercial in nature. In such a case it is the dominant use of the building which is crucial for ascertaining its nature. 18. In M/s. Gold Filled Mercantile Co. and another Vs. 3rd Addl. District Judge, Varanasi and others 1983 ARC 664 it has been held that if part of the building is in residential use and another part for business purpose, then the test for determining its nature is to find out the dominant purpose of its use. 19. In Kanahiya Lal Agrawal Vs. and another Vs. 3rd Addl. District Judge, Varanasi and others 1983 ARC 664 it has been held that if part of the building is in residential use and another part for business purpose, then the test for determining its nature is to find out the dominant purpose of its use. 19. In Kanahiya Lal Agrawal Vs. District Judge, Ballia and others 2009 (2) ARC 205 the residential building was let out for commercial purpose, the court applying the test of dominant use held that as it was being used for manufacturing of medicines, the predominant purpose is commercial and the building is not of residential use. 20. In Shabir Ahmad Vs. Sham Lal AIR 2002 SC 1036 the dispute was with regard to nature of the building which was a shop cum flat. The court on the basis of allotment order and the deed of conveyance held that shop cum flat was a commercial building. 21. In the present case the admitted facts reveal that the entire ground floor is of commercial nature consisting of shops and that only a two room portion of the first floor has been let out for residential purpose. This itself establishes that the dominant purpose of the building is commercial. 22. In view of the above, if the building as a whole is seen together, it would be a commercial building and as such there is no bar for its release for business purpose. 23. The next argument of learned counsel for the petitioner is that the respondent is having two vacant plots of land in the vicinity and its need would stand satisfied if a building on the said plots is constructed instead of getting the premises in dispute vacated from the petitioner and getting the existing building demolished and reconstructed. 24. The respondent who is the owner and landlord of the premises in dispute is a company. There is no evidence on record to establish that the alleged two plots adjoining to the premises in dispute belongs to the respondent. The said plots are in the name of some of the Directors of the respondent.The Directors are separate from the company. The company is a juristic person having a separate legal entity different from its directors. It has no concern with the personal property of its directors. 25. The said plots are in the name of some of the Directors of the respondent.The Directors are separate from the company. The company is a juristic person having a separate legal entity different from its directors. It has no concern with the personal property of its directors. 25. In view of the above, the respondent landlord does not possess any property of its own in the vicinity which could satisfy its need as set up in the release application. 26. Lastly, the appellate court has dealt with comparative hardship of the parties and has found as of fact that the petitioner has not made effort whatsoever to search out alternative accommodation right from 2003 when the release application was filed. Therefore, the hardship is not in his favour. 27. The submission of Sri Kshitij Shailendra learned counsel for the petitioner is that a son and a daughter of the petitioner are physically handicapped and that this aspect of the matter has not been considered by the appellate court. He has placed reliance in this regard upon the pleadings to that effect made in the written statement supported by an affidavit. 28. The petitioner in the written statement may have pleaded his difficulty and hardship on account of disability of his son and daughter but despite such hardship he failed to make any attempt to settle himself in some alternative accommodation knowing fully well that he has no vested right to continue in the tenanted accommodation. He took it casually and therefore any hardship likely to be suffered by him at this stage can not be given priority over and above that of the respondent landlord. 29. In view of the aforesaid facts and circumstances, I find no force in any of the submissions of the petitioners. The matter requires no interference by this Court in exercise of writ jurisdiction. 30. Sri Shailendra, learned counsel for the petitioner in the end prays for some reasonable time to vacate the premises in dispute. 31. In view of disability of the son and the daughter of the petitioner, he is allowed six months time to vacate the premises in dispute provided he furnishes undertaking to this effect on affidavit before the prescribed authority within a period of one month from today that he will handover vacant and peaceful possession of the premises in dispute within the aforesaid time. 32. 32. The writ petition is dismissed with the above condition but without any cost.