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2015 DIGILAW 2624 (ALL)

Prem Shankar v. Bhagwati Prasad Mishra

2015-08-26

SUNITA AGARWAL

body2015
JUDGMENT Mrs. Sunita Agarwal, J. Heard learned counsel for the parties. 2. This is the tenants' petition. The release application under Section 21(1)(a) of U.P. Act No.13 of 1972 was filed by the landlady setting up need for her son Bhagwati Prasad Mishra. 3. In the release application it is averred that Bhagwati Prasad Mishra was doing work of "Kabar" on 'feri' on his cycle. There is vacant shop in his possession to establish his business of sale and purchase of 'Radiator' and scrap of copper and brass metals. While contesting the release application in the written statement, it was submitted by the petitioner that Bhagwati Prasad Mishra was not doing 'feri' work rather he is sitting in a shop with his son Roshan. On this plea replication of the landlady is that the shop in which Roshan Mishra is doing business is only 3 ft.10 inches X 16 ft. and that too in tenancy on the basis of will of his grandfather. 4. The Commissioner's report was obtained so as to find out as to whether Bhagwan Prasad Mishra was doing business from the existing shop in House No.67/52 'B', Kanpur Nagar occupied by his son Roshan. The Commissioner's report says that no definite opinion could be given however, it was mentioned that at the time of inspection Bhagwati Prasad Mishra and his son Roshan were found in the shop. There was one shop adjacent to the shop in question which was closed and that shop was said to belong to Manoj Mishra. 5. The finding recorded by the Prescribed Authority is that the shop in house No. 67/52 is occupied by Roshan Mishra who is doing business. The presence of Bhagwati Prasad Mishra at the time of Commission would not be sufficient to establish that he was doing business. As need of Bhagwati Prasad Mishra was found genuine, it was held that the shop is to be released. On comparative hardship, finding is that the tenant made no effort to get alternative accommodation during pendency of the release order, the landlord would suffer greater hardship than that of the tenant. While releasing the shop, two years rent has been granted as compensation to the tenant. 6. In appeal, an amendment application was filed with the contention that during pendency of the release application, the shop which was earlier in occupation of one Durga Prasad has been released. While releasing the shop, two years rent has been granted as compensation to the tenant. 6. In appeal, an amendment application was filed with the contention that during pendency of the release application, the shop which was earlier in occupation of one Durga Prasad has been released. The release of that shop by itself extinguished the need of landlady. To this amendment, the objection was filed by the landlady and it was categorically stated that the shop which has been released during pendency of the appeal is required to establish her grandson Roshan Mishra, who is doing business from a small room 'Gallery' like accommodation of 3.10 ft. x 16 ft. 7. The appellate authority has considered this aspect and recorded a finding of fact that the contention of landlady that the shop of Roshan Mishra is a very small shop and hence the need set up by the landlady for Bhagwati Prasad Mishra cannot be said to have been fulfilled despite the shop released during pendency of the appeal. 8. Learned counsel for the petitioners strenuously argued that the finding recorded by the Courts below cannot be sustained in absence of non-consideration of Commissioner's report which clearly says that Bhagwati Prasad Mishra was doing business from the shop of Roshan Mishra. This argument is not substantiated. The Commissioner's report has been examined by the Prescribed Authority and it is recorded that it cannot be conclusive proof of the assertion of the tenant. 9. Learned counsel for the petitioner relying upon judgment of this Court in Ram Shankar Jaiswal vs. Additional District Judge(SC/ST Act), Lucknow reported in LAWS(ALL)-2015-1-67 : 2015 (1) ARC 474 further submits that in view of Rule 16 of Rules framed under UP Act No.13 of 1972, as the landlady has adequate and suitable accommodation, her claim for additional requirement is to be considered strictly. 10. Rule 16 (1) (a) reads as under: - "In considering the requirements of personal occupation for purposes of residence by the landlord or any member of his family, the Prescribed Authority shall, also have regard to such facts as the following- where the landlord already has adequate and reasonably suitable accommodation having regard to the number of members of his family and their respective ages and his means and social status, his claim for additional requirements shall be construed strictly." 11. In the instant case, the appellate authority having considered the number of members of the family of the landlady and their requirement for business after considering both shops, one in tenancy of the petitioners and another in tenancy of Durga Prasad which was released during pendency of the appeal, has found that the shop which was released during pendency of the appeal is required to establish her grandson. The said shop is not available to satisfy the need of the landlady to establish her son Bhagwati Prasad Mishra, i.e. for the need for which release application for the shop in question has been filed. 12. The requirement of Rule 16 of the Rules framed under the Act No. 13 of 1972 has been considered by the Courts below while arriving at a conclusion of bonafide need of the landlady and while giving a finding on comparative hardship which is not open to judicial review in the writ jurisdiction. The ratio of judgment in Ram Shankar Jaiswal is in the facts and circumstances of that particular case and is distinguishable in the fact of the present case. 13. Further reliance has been placed upon judgment of this Court in Jagdish Prasad Barnwal vs. Gopal Prasad Mishra @ Jagdish Prasad Pandey and others reported in 2012 (10)ADJ 554 : 2012 (3) ARC 604 in which it is found that the Commercial accommodation became available to landlord during proceedings before the Court below but was let out to another tenant. This was held to be relevant fact required to be considered and on this ground the matter was remitted. 14. Further reliance has been placed upon judgment of this Court in Hari Shankar Sharma vs. Special Judge, Moradabad and others reported in 1983(2) Allahabad Rent Cases 13 in which the tenant had vacated the premises and in respect of that portion, application for release has been filed by the landlord. In view of undisputed fact, and the changed circumstances, this Court had remitted the matter back to record a finding as to whether the accommodation which came in possession of the landlord is sufficient for his requirement. In view of undisputed fact, and the changed circumstances, this Court had remitted the matter back to record a finding as to whether the accommodation which came in possession of the landlord is sufficient for his requirement. The proceedings in that matter arose out of decision under Section 21(1)(b) of the U.P. Act No. 13 of 1972 for release of the premises on bonafide requirement and the subsequent developments taken place during pendency of the appeal have not been duly considered by the Court after obtaining objection from the other side. 15. All the cases relied upon by the learned cousnel for the parties are distinguishable in the facts and circumstances of the case. 16. The Appellate Authority has considered the subsequent event in the light of evidence after obtaining objection from the landlady. The categorical stand taken by the landlady was found satisfactory and after considering her requirement, a finding of fact has been recorded that the shop was required to be released. No perversity could be found in the finding of fact recorded by both the Courts below. The writ petition is dismissed. 17. Lastly, learned counsel for the petitioners submits that they may be granted six months' time to remove their belongings and vacate the shop in question. To this prayer, Sri Manish Goyal, learned counsel for the respondent has no objection. It is, therefore, directed that the petitioners shall file an affidavit within three weeks from today in the form of undertaking that they will vacate the premises on or before 30.3.2016. In case, the petitioners fail to file an undertaking within the time as directed above or do not vacate the premises within the period provided, further proceedings for eviction shall be undertaken.