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2014 DIGILAW 2981 (ALL)

Ashok Kumar Singh v. Ahilya Singh

2014-09-23

PANKAJ MITHAL

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JUDGMENT Pankaj Mithal,J. Heard Sri Rahul Sahai, learned counsel for the petitioner and Sri P.N. Saxena, Senior Advocate, assisted by Sri Ashok Singh, learned counsel for the respondents. 2. The dispute in the present writ petition is regarding shop No.20/3, Jogiapur Jaunpur. It is under the tenancy of the petitioner at a rent of Rs.150/160 per month wherein petitioner is said to be carrying radio repairing workshop. 3. The respondents the owners and landlords applied for its release under Section 21(1)(a) of the U.P. Act No.13 of 1972 (hereinafter referred to as the Act) vide P.A. Case No. 9 of 1983. 4. The need set up in the release application was for the expansion of the tractor agency which is being run by Shyam Bahadur Singh one of the landlords from the two adjoining shops No.20/1 and 20/2. It was contended that the said two shops are not sufficient for the display of the tractors and other automobile parts. The shop in dispute which is adjoining to it is bonafidely needed for the expansion of the showroom. 5. The release application after contest was allowed vide judgment and order dated 12.11.1999 passed by the prescribed authority. The appeal preferred by the petitioner has been dismissed on 14.08.2014. 6. The above two orders have been impugned by the petitioner by means of the present writ petition. 7. It is worth noting that the High Court while expediting the hearing of the appeal had permitted the appellate court to consider the subsequent events in deciding the appeal. 8. The submissions of Sri Rahul Sahai, learned counsel for the petitioner are two fold. First that during the pendency of the appeal, one another shop No.20 which was in the tenancy of Ram Asrey fell vacant and the same was sufficient to satisfy the need of Shyam Bahadur Singh for the expansion of his tractor showroom. 9. The appellate court has considered the availability of shop No.20 which is said to have fallen vacant during the pendency of the release proceedings. It has recorded that Atul Kumar Singh one of the sons of Shyam Bahadur Singh is aged about 27 years and is unemployed. He has taken franchise/licence of NIIT which is a prestigious institute. 9. The appellate court has considered the availability of shop No.20 which is said to have fallen vacant during the pendency of the release proceedings. It has recorded that Atul Kumar Singh one of the sons of Shyam Bahadur Singh is aged about 27 years and is unemployed. He has taken franchise/licence of NIIT which is a prestigious institute. He had got his own institute in the name of Jaunpur Info-technique Pvt. Ltd. duly registered on 10.1.2001 for the purposes of imparting education and training under the franchise of NIIT. Accordingly, to start the said institute the tenant Ram Asrey of shop No.20 was contacted to vacate the said shop so that the aforesaid son of Shyam Bahadur Singh be accommodated. The tenant agreed for it and vacated the shop. The said shop and the part of first floor residential portion has been utilized by Atul Kumar Singh for establishing his institute. 10. Shyam Bahadur Singh had set up his need for the shop in dispute in the year 1983 when the release application was filed. His need cannot remain static and confined only to the need set up in the release application. His need is bound to increase and grow with the passage of time and changed circumstances. Therefore, in addition to the need set up in the release application if a different need arises the landlord is free to take care of the same and to make necessary arrangement for it. Accordingly, if the need had arisen for his son and he has made arrangements for it that to without entering into litigation, it does not mean that his original need as set up in the release application has ceased to exist or is not bona fide. 11. There is no evidence that the said shop is not being used by his son. 12. Thus, getting shop No.20 vacated for the business need of his son Atul Kumar Singh, does not affect his need for the shop in dispute. 13. In view of above, the first argument advanced has no merit. 14. The appellate court on the basis of the affidavit 391 Ga of Shyam Bahadur Singh has come to the conclusion that the business of tractor agency carried on by him was previously a partnership business which has come to an end on 10.07.2014. 13. In view of above, the first argument advanced has no merit. 14. The appellate court on the basis of the affidavit 391 Ga of Shyam Bahadur Singh has come to the conclusion that the business of tractor agency carried on by him was previously a partnership business which has come to an end on 10.07.2014. Thereafter, it is being carried by Shyam Bahadur Singh in his sole proprietorship as his evident from the record of Commercial Tax Department and as such the plea that the said business has ceased to exist is not tenable. 15. The appellate court has further recorded that the petitioner has failed to prove that the two shops from where the tractor business in the name of Agro and Auto Services was run have been let out to outsiders. 16. The sign boards of Vodafone and Rudra Enterprises are not the businesses which are being carried by the alleged tenants rather they are businesses which are now being carried by Atul Kumar Singh from the adjoining shop No.20. The business of one of the new tenants Atul Kumar Mishra is in the of Sun Enterprises. It is being carried from a place Sirtaji Katra Allundganj as his reflected by the record of the Commercial Tax Department. The other alleged new tenant Deependra Jaiswal is doing business in the name of Mayank Enterprises from Jogiapur Kutchery road. 17. In view of above findings of the appellate court it is clear that the petitioner not only failed to prove that the tractor business of Shyam Bahadur Singh has been closed down but also that the said two shops had been let out to the above two persons. 18. The aforesaid findings are findings of fact which are beyond the scope of judicial review in exercise of writ jurisdiction. 19. The appellate court has duly considered the subsequent events and has taken a reasonably fair stand which is not perverse. 20. Thus, in the totality of the facts and circumstances, I find no error or illegality on part of the courts below in allowing the release application under Section 21(1)(a) of the Act. 21. Lastly, Sri Sahai has prayed that sometime may be allowed to the petitioner for vacating the shop in dispute. 22. 20. Thus, in the totality of the facts and circumstances, I find no error or illegality on part of the courts below in allowing the release application under Section 21(1)(a) of the Act. 21. Lastly, Sri Sahai has prayed that sometime may be allowed to the petitioner for vacating the shop in dispute. 22. In view of above, three months time from today is allowed to the petitioner for vacating the shops in dispute provided he gives an undertaking on affidavit before the prescribed authority within a month that he will vacate the same within the above time and will clear all dues upto date. 23. Accordingly, the writ petition has no merit and is dismissed with the above condition.