Research › Search › Judgment

Allahabad High Court · body

2015 DIGILAW 2153 (ALL)

Vishambhar Sahai v. Satwant Kaur Vadhwa

2015-07-28

SUNEET KUMAR

body2015
JUDGMENT Suneet Kumar, J. The petitioner tenant has come in writ jurisdiction under Article 226 of the Constitution of India assailing the order dated 18 March 2015 passed by the Additional District Judge/Special Judge (SC/ST) Act, Meerut in P.A. Appeal No.118 of 2012 (Smt. Satvant Kaur vs. M/s Bishambhar Sahai & Sons) allowing the release application of the respondent landlady. 2. Briefly the facts are that the respondent landlady made an application seeking release of shop being Shop no. 245-A & 245-B situate in Mohalla Rangsaaz, Sadar, Meerut Cantt., Meerut, under section 21 (1)(a) of Act no. 13 of 1972 setting up a need for her two unemployed sons. It was stated that the landlady was engaged in her business in the name and style 'The King Dyers Dry Cleaners' in shop no. 245 situate in Mohalla Rangsaaz, Sadar, Meerut Cantt., Meerut. The landlady required the shop to set-up the business of readymade garments for elder son Amardeep, who has no interest in the business of dry-cleaning. The petitioner-tenant filed objection/written statement stating that several accommodation, being premises no. 245 C, D and E were available with the landlady for setting up the business for her son. She has one tenanted accommodation being premises No. 235, Masjid Ghusyan Rangsaaz Sadar, Meerut Cantt. across the shop in dispute for commercial purposes, she is running a Boys Hostel in premises No.133, Prithviraj Puri, Bakri Mohalla, Lal Kurti, Meerut Cantt. The sons of the landlady were already engaged in the business of dry-cleaning along with her mother/landlady. The landlady has several other properties viz. 245 C, 245 D and 245 E, further, it is stated that the petitioner would suffer greater hardship in case, is directed to be evicted from the shop in question. 3. The Prescribed Authority by the judgment and order dated 18.08.2012 rejected the release application, while doing so it noted that the accommodation in possession of the landlady was sufficient, her sons were engaged in the business of readymade garment and dry-cleaning, hence, were not unemployed. Reference was made to the income tax return of Amardeep to hold that he was engaged in his mother's business being an income tax assessee. A finding was recorded that the landlady had accommodation at the first floor of the building in which she was doing business of dry-cleaning, further being aged about 73 years, she could not carry on business by herself. A finding was recorded that the landlady had accommodation at the first floor of the building in which she was doing business of dry-cleaning, further being aged about 73 years, she could not carry on business by herself. Aggrieved, by the judgment and order of the Prescribed Authority, the respondent/ landlady assailed the order in appeal, by the impugned order dated 18.03.2015 the Appellate Authority allowed the release application by setting aside the order of the Prescribed Authority. 4. Submission of learned counsel for the petitioner is that the Appellate Authority ignored the admitted case of the landlady that there are eight commercial accommodation, one big hall in the same premises which were more than sufficient for dry-cleaning business of the landlady, as well as for the proposed business of readymade garment for her son. The landlady has not disclosed the extent and size of her business of dry-cleaning viz. the number of employees so as to assess that the eight commercial rooms and one big hall was needed for the business which was discussed by the Prescribed Authority in detail. Further, Appellate Court has ignored that the premises no. 245 and 245 C, D & E as reflected in assessment orders are different shops situate on the first floor and therefore, could not have been treated as being one shop. The Appellate Court had also ignored that the son of the landlady being an income tax assessee was not unemployed, finally the petitioner being at an advance age would suffer comparatively greater hardship than the landlady in the event of being evicted from the premises in dispute. 5. Sri Kiran Kumar Arora, learned counsel appearing for the respondent submits that the appellate court has considered all the accommodation belonging to the landlady and has returned a findings of fact regarding bonafide need and comparative hardship which cannot be interfered in writ jurisdiction, the order is legal, valid and there is no infirmity or perversity. 6. The Appellate Court noted that the finding recorded by the Prescribed Authority upon considering the extent and size of the landlady's business of dry-cleaning, her sons cannot be said to be unemployed. While deciding the matter, the Appellate Authority on taking note of the site map of the disputed premises and adjoining shops filed by the landlady, recorded that the tenanted accommodation being Shops No. 245-A and 245-B is ("L" shaped) and shop no. While deciding the matter, the Appellate Authority on taking note of the site map of the disputed premises and adjoining shops filed by the landlady, recorded that the tenanted accommodation being Shops No. 245-A and 245-B is ("L" shaped) and shop no. 245 are road facing, whereas shops nos. 245-C, 245-D and 245-E are on the rear side. The landlady was carrying on the dry cleaning business in shop nos. 245-C, 245-D and 245-E (on the rear side and on the first floor of the said shops), hence none of said shops were available with the landlady in vacant state nor were they opening into the road. It is also noted that no other shop was available with the landlady facing the road except shop no. 245 wherein the landlady was carrying on her business along with other shops which were on the rear side. The need, therefore, was set up for the tenanted shops 245-A and 245-B. 7. The Appellate Court also noted that merely because the sons are assisting their mother in business that would not mean that landlady's family members were not entitled to establish their own business. Regarding business in shares by Amardeep, the Court recorded that Amardeep had inherited the said shares and fixed deposits through a Will executed by his father, was having some income from the shares and fixed deposits, which is reflected from the income tax return, but had no income whatsoever from the dry cleaning business. The Court was of the view that if a person was engaged temporarily in the business of shares it cannot be said that he was engaged in a regular business and that his need for an accommodation for setting up regular business was not bonafide. (Refer to Jai Ram Gupta and another vs. Jai Ram Verma and another, 2009 (1) ARC 514 ). 8. It is settled legal proposition that the tenant is not to dictate as to how the landlord should use his property as the landlord is the best judge of his need. Reference was made to Raghvendra Kumar vs. Firm Prem Machinery, 2000 SCFBRC 24; Abdul Hasan and another vs. District Judge, 2012 (1) ARC 530 ; Gonda; Mala Devi vs. Additional District Judge, Lucknow and others, 2011 (3) ARC 209 ; Tara Devi vs. District Judge, Hardoi, 2009 (1) ARC 734 9. Reference was made to Raghvendra Kumar vs. Firm Prem Machinery, 2000 SCFBRC 24; Abdul Hasan and another vs. District Judge, 2012 (1) ARC 530 ; Gonda; Mala Devi vs. Additional District Judge, Lucknow and others, 2011 (3) ARC 209 ; Tara Devi vs. District Judge, Hardoi, 2009 (1) ARC 734 9. Even if the landlady's son is assisting his mother in the business, that would not be taken as to obliterate his need, after all he is not expected to be sitting idle. (Refer? Chedi Lal vs. Kedar Nath, 2009 (2) ARC 24 ; Lal Bahadur and another vs. Additional District Judge, Etah, 2009 (1) ARC 531 ; and Ram Sewak vs. Special Judge, E.C. Act, Jhansi and others, 2006 (2) ARC 418). 10. Contention of the learned counsel for the petitioner cannot be accepted that the Appellate Court has not considered the accommodation that was available with the landlady before adverting to answer the question of bonafide need and comparative hardship. The Appellate Court has discussed in detail the entire evidence and material available on the record and opined that the landlady was in possession of only one shop being shop no. 245 facing the road, the remaining accommodation as alleged by the petitioner being premises No. 245-C, 245-D and 245-E are on the rear side, is not accessible from the road, therefore, no other alternate accommodation was available for her son to set up the proposed business. The entire premises was, therefore, being used by the landlady. The son's business regarding shares, specific finding has been returned by the Appellate Court that the business in shares cannot be said to be a regular business, therefore, his need for an accommodation for carrying on the business of readymade garments was bonafide and genuine. The tenant admittedly has not made any effort to find an alternate premises for himself from where he could shift his business, hence, the comparative hardship would tilt in favour of the landlord. The tenant had suggested that the landlady could settle her son on the accommodation at the first floor. It has been recorded in the impugned order that the said accommodation is being used by the landlady for her own dry cleaning business, in any case it was noted in the impugned order that it is not suitable for starting readymade garment business for her son. It has been recorded in the impugned order that the said accommodation is being used by the landlady for her own dry cleaning business, in any case it was noted in the impugned order that it is not suitable for starting readymade garment business for her son. The landlady, during the course of the proceedings, made an offer that if the tenant so desires the landlady shall vacate one room on the first floor which can be used by the tenant-petitioner. The offer was also made before this Court which was not accepted by the petitioner. 11. It has been stated that the tenant is occupying the disputed accommodation, is not doing any business, but for extracting some consideration from the landlady. The petitioner is paying a meager rent of Rs.25/- per month which is being deposited under Section 30(1) of the U.P. Act No.XIII of 1972. It is submitted that shop in dispute is situated in an area where the current rent is Rs.430/- per sq. ft. The area is in Meerut Cantt. Segment which is a business hub of the city. The total carpet area in occupation of the tenant is about 1250 sq. ft., thus, the present letting value of the accommodation in possession of the tenant is quite expensive. 12. Having due regard to the facts and circumstances of the case, the Court in exercise of its jurisdiction under Article 227 of the Constitution of India is not inclined to interfere with the impugned order. 13. The writ petition being devoid of merit, is liable to be dismissed. 14. The writ petition is, accordingly, dismissed. 15. No order as to costs. 16. However, it is provided that in case the petitioner gives an undertaking on oath before the Court below that he shall vacate the premises in question and hand over the possession of the same peacefully to the respondent-landlord on or before 31 January 2016. 14. The writ petition is, accordingly, dismissed. 15. No order as to costs. 16. However, it is provided that in case the petitioner gives an undertaking on oath before the Court below that he shall vacate the premises in question and hand over the possession of the same peacefully to the respondent-landlord on or before 31 January 2016. The aforesaid undertaking on oath shall be given by the petitioner before the Court below within 10 days from today and the petitioner shall deposit the monthly rent of the premises in question before the Court below, as per the current rent fixed and shall continue to deposit the same by 7th of the each calendar month till the vacation of the premises in question, which amount may be permitted to be withdrawn by the respondent-landlord after due verification by the Court concerned. 17. It is made clear that in the event of default committed by the petitioner/tenant in any of the conditions, the order shall stand automatically vacated without reference to the Court.