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2015 DIGILAW 154 (ALL)

Kanta v. Additional District Judge Lko.

2015-01-22

MAHENDRA DAYAL

body2015
JUDGMENT Mahendra Dayal,J. 1. This is tenants' writ petition, assailing the judgment and order dated 22.5.2006, passed by the Prescribed Authority, 1st Additional Civil Judge (Senior Division), Court No.20, Lucknow, whereby the release application of the opposite party no.3 was allowed and the judgement and order dated 12.5.2008, passed by the Additional District Judge, Court No.15, Lucknow, whereby the Rent Appeal No. 10 of 2006, preferred against the order of the Prescribed Authority, was dismissed. 2. The opposite party no.3 sought release of a three door shop situated on the ground floor together with the room on 1st floor house at Dr. B.N. Verma Road, Lucknow, being part of building no. 173/63 & 51. It was alleged that Sewa Ram was the tenant in aforesaid shop on a monthly rent of Rs. 35/-. The shop in the tenancy of Sewa Ram has been locked since 1996 and he has seized to carry on his business from the said shop. It was further alleged that the tenant Sewa Ram was intending to sublet the shop to some other person. The landlord further pleaded that Sewa Ram had started his business at Booth Nath Market, Indira Nagar, Lucknow in the name of "Asrani Store". According to the landlord- opposite party no.3, he along with the opposite parties no. 4 to 6 are carrying on business at Barabanki under the name and style of "East India Tenary Company". His family consists of his wife, 2 sons and 2 daughters. The locality where the shop in question is situated, is the Stationary Market and the landlord- opposite party no.3 wants to establish his elder son in Stationary business and hence the shop in question is needed. It was further alleged that the shop in question being located in the market area, is most suitable for starting a new business. The opposite party no.3- landlord requested Sewa Ram to vacate the shop but he refused to vacate the same. The landlord-opposite party no.3 further sated that since Sewa Ram had started his business at Booth Nath Market in Indira Nagar, Lucknow, therefore, he will not suffer any hardship in case the shop in question is released. 3. The opposite party no.3- landlord requested Sewa Ram to vacate the shop but he refused to vacate the same. The landlord-opposite party no.3 further sated that since Sewa Ram had started his business at Booth Nath Market in Indira Nagar, Lucknow, therefore, he will not suffer any hardship in case the shop in question is released. 3. The tenant, namely, Sewa Ram contested the case and filed his written statement admitting himself as tenant of the shop in question but denying the fact that he had shifted his business to Bhooth Nath Market, Indira Nagar, Lucknow. It was further stated by him that the landlord-opposite party no.3 has been carrying on business at Barabanki under the name and style of "East India Tenar Company" and all his sons are engaged in the said business. His need in respect of the shop in question was therefore neither bonafide nor genuine. In fact the landlord-opposite party no.3 wanted to evict the tenant from the shop in question and let out the same to some other person on higher rent. The tenant further pleaded that he was an aged person and was also a heart patient. In case he is asked to vacate the shop in question he would suffer greater hardship. The tenant Sewa Ram further stated that he was not having cordial relation with his son and he was being looked after by one Vikash Mool Chandani. With the aforesaid allegations the tenant prayed that the application for release be rejected. 4. The parties led evidence before the learned Prescribed Authority who on the basis of the evidence on record came to the conclusion that the need of the landlord-opposite party no.3 was genuine and the tenant Sewa Ram would not suffer any hardship in case he is asked to vacate the same. It also needs mention here that during the pendency of the release application the original tenant, namely, Sewa Ram died and in his place his widow and sons were impleaded who are the petitioners in this writ petition. 5. Feeling dis-satisfied with the order of the learned Prescribed Authority, the petitioners preferred Rent Appeal which was also dismissed by the Additional District Judge, Court No.15, Lucknow. 6. I have heard Shri Mohd. Arif Khan, learned Senior Advocate, assisted by Shri Mohiuddin Khan and Shri A.R. Khan appearing on behalf of the landlord-opposite party no.3. 7. 5. Feeling dis-satisfied with the order of the learned Prescribed Authority, the petitioners preferred Rent Appeal which was also dismissed by the Additional District Judge, Court No.15, Lucknow. 6. I have heard Shri Mohd. Arif Khan, learned Senior Advocate, assisted by Shri Mohiuddin Khan and Shri A.R. Khan appearing on behalf of the landlord-opposite party no.3. 7. The learned counsel for the petitioners has argued that the need of the opposite party no.3-landlord as set up in the release application was that he wanted to settle his elder son in the Stationary business and wanted to open a new shop for him after the vacation of the disputed shop by the petitioners. He has further argued that the land-lord-opposite party no.3 has absolutely no need of the shop in question, he along with his brothers and sisters has entered into registered agreement with respect to a property situated at Tulsi Das Marg, Nakkhas, Lucknow and has also entered into an agreement with the dealer for construction of a multy-story, Commercial Complex, in which several shops will be constructed. The landlord-opposite party no.3 keeps on selling shops of the said Commercial Complex which clearly establish that he has no need of the shop in question. Prior to the filing of the release application, the landlord-opposite party no.3 had filed a release application with respect to a shop on the northern side adjoining the shop in question, which was under the tenancy of Mohd. Aqueel. However, the said application was got dismissed in default. The said release application filed against Mohd. Aqueel was intentionally got dismissed so that the landlord-opposite party no.3 may press his need in the release application filed against the petitioners. 8. The learned counsel for the petitioners has also pointed out that the copy of the agreement referred to above, has been filed along with the supplementary affidavit, which is on record and a perusal thereof clearly establishes that the landlord- opposite party no.3 has absolutely no requirement of the shop in question. The finding recorded by both the courts below with regard to bonafide need of landlord-opposite party no.3 is erroneous in view of the fact that both the courts below have come to the conclusion that even if the landlord has several accommodations, he has a right to choose suitable accommodation for him. The finding recorded by both the courts below with regard to bonafide need of landlord-opposite party no.3 is erroneous in view of the fact that both the courts below have come to the conclusion that even if the landlord has several accommodations, he has a right to choose suitable accommodation for him. The learned counsel has further argued that although it has been held in several cases that the tenant cannot dictate his landlord to choose a particular accommodation but the court dealing with the release application has to satisfy himself as to whether the need of the landlord is bonafide and genuine. In case it is established from the record as well as from the surrounding circumstances that the need of the landlord is not genuine and bonafide, the release application cannot be allowed. He has relied upon a Supreme Court decision reported 2002 (1) SCC 610 G.C. Kapoor Vs. Nand Kumar Bhasin and others, in which the Hon'ble Supreme Court has held that the requirement of the landlord must be honest and should not be a mere desire or wish. Reliance has also been placed upon a judgement reported in 2003 (2) SCC 3 Atma S. Berar Vs. Mukhtiar Singh; in which the Hon'ble Supreme Court has held that there must be genuine, real, honest and sincere need to the landlord. The opposite party no.3-landlord is admittedly carrying on tenar business at Barabanki along with his family members and also has several places within the municipal limits of Lucknow, hence his need for the shop in question cannot be said to be genuine. Both the courts below have found the need of the landlord-opposite party no.3 genuine, merely on the ground that the petitioners have a shop at Bhooth Nath, Indira Nagar, Lucknow. Even if it is found that the petitioners have sufficient accommodation for their business, need to the landlord-opposite party no.3 cannot be held to be bonafide, merely on this ground. There is also no evidence to the effect that Vikas Mool-Chandani is carrying on business from the disputed shop. It has been submitted on behalf of the petitioners that the widow of Sewa Ram who is petitioner no.1 in this writ petition is carrying on business from the disputed shop and it cannot be said that the shop is locked since 1996. 10. It has been submitted on behalf of the petitioners that the widow of Sewa Ram who is petitioner no.1 in this writ petition is carrying on business from the disputed shop and it cannot be said that the shop is locked since 1996. 10. Shri A.R. Khan, appearing on behalf of opposite party no.3-landlord, has submitted that the original tenant Sewa Ram was an aged and infirm person and he had locked the shop in question in his life time. He had permitted Vikas Moolchandani to carry on his business from the disputed shop. It is not disputed that the petitioner no.2 who is the son of the original tenant Sewa Ram, has a shop at Bhooth Nath Market, Indira Nagar, Lucknow. He has further submitted that even if it is found that the landlord-opposite party no.3 has several buildings, even then he has a right to choose accommodation of his choice for setting up a new business to his son. A tenant cannot dictate the terms to his landlord as to the choice of accommodation. He has relied upon a case reported in 2013 (1) ARC 217, Magan Lal Vs. Kalim Ullah, in which it has been held that need of the landlord to set up his son in a business, is a bonafide need. Reliance has also been placed upon the judgment reported in 2006 (1) ARC 282 Vishnu Kant Goswami Vs. IInd A.D.J., Allahaad and another; in which it has been held that every landlord and every adult member of his family is entitled to have a separate independent business and no landlord or any of his family member can be compelled to participate in the family business or joint business. Thus even if it is found that the landlord-opposite party no.3 is carrying on his business with his family members, it cannot be said that he cannot set up his adult son in an independent business. 11. In the case in hand, both the courts below have recorded a concurrent finding that the need of the landlord/opposite party no.3 for setting up a new and independent business is bonafide and genuine. 11. In the case in hand, both the courts below have recorded a concurrent finding that the need of the landlord/opposite party no.3 for setting up a new and independent business is bonafide and genuine. There is also a concurrent finding to the effect that the landlord-opposite party no.3 shall suffer greater hardship in case his release application is refused as compared to the hardship that will be caused to the tenant- petitioners in case the release application is allowed because they have their own business at Bhooth Nath Market, Indira Nagar, Lucknow. The Hon'ble Supreme Court in the case reported in 2003 (2) SCC 3 Atma S. Berar Vs. Mukhtiar Singh has held that High Court is not justified in interfering with the concurrent findings of the Prescribed Authority and the Appellate Authority, merely because it was inclined to take a different view. The opposite party no.3-landlord, even if has a big business and has several buildings in Lucknow, he has right to select the most suitable accommodation for setting up a new and independent business for his son. The original landlord, namely, Sewa Ram has already died and his son the petitioner no.2 is already carrying on business at Bhooth Nath, Market, Indira Nagar, Lucknow, and as such, having considered the entire circumstances and the facts of the present case, I do not find any illegality and infirmity in the impugned judgement and orders, which are based on material on record and the settled principles of law. The writ petition has, therefore, no force and is liable to be dismissed. 12. The writ petition is dismissed. However, in the circumstances of the case, the petitioners are permitted to vacate the shop in question within three months from the date of this judgement, failing which the landlord-opposite party no.3 shall have liberty to enforce the release order in accordance with law.