Research › Search › Judgment

Allahabad High Court · body

2015 DIGILAW 2686 (ALL)

OM PRAKASH RATHORE v. SAURABH SHAHA

2015-09-01

SUNITA AGARWAL

body2015
JUDGMENT Hon’ble Mrs. Sunita Agarwal, J.—Heard Shri Somesh Khare, learned counsel for the petitioners and Shri Manas Bhargava, for the respondents. 2. The release application has been filed in the year 2010 for the need of the landlord for expansion of his clinic and also to install other units like pathology, X-ray and construction of O.P.D., compounder room, and waiting rooms for the patients. 3. The facts of the case are that adjacent to the shop in which the landlord is running his clinic there are five shops adjacent to each other. The release application has been filed for the bona fide need of expansion of clinic for providing facilities to the patients. In paragraph -6 of the release application, the need set up by the landlord is as under : “6.That according to the large number of patients the petitioners have no ample accommodation with him, where he can arrange his reception room, patients’ waiting room, compounder’s room, dressing room and private wards to treat and to admit his patients. The petitioner also needs additional space to set up a full fledged Lab equipped X-ray and auto analyser for pathology etc. for the patients admitted as well as day care O.P.D. Patients.” 4. In the written statement specific objection taken by the petitioners was that the landlord had no requirement of compounder room, dressing room, and private wards as these requirements could only be for a nursing home and not for the clinic and there was no proposal for opening the nursing home. As far as other requirements are concerned,no practicing doctor require these facilities at his clinic. 5. The release application for the need of his wife for opening a coaching centre was also contested by the tenant on the ground that no certificate had been produced by her, to establish her need. 6. The release application was further contested on the ground that the landlord was a visiting lecturer in G.S.V.M. Medical College, Kanpur. The tenant had filed information received under the R.T.I. Act indicating therein that the landlord was working as Lecturer in Physiology department on contract basis and was getting Rs. 40,000/- as remuneration per month. On the basis of this information the tenant had pleaded that the landlord was prohibited from private practice and for this illegal proposal of the landlord the release application could not be allowed. 7. 40,000/- as remuneration per month. On the basis of this information the tenant had pleaded that the landlord was prohibited from private practice and for this illegal proposal of the landlord the release application could not be allowed. 7. The Prescribed Authority vide judgment and order dated 16.8.2013 has allowed the release application. A perusal of the order indicates that though the objections taken by the petitioner in the written statement to the release application has been narrated in the order but it appears that by sheer accidental omission while referring to the objections of the petitioner, name of Shri Rajiv Gupta, who is tenant in the adjacent shop and was contesting another release application has been mentioned.The objections of the tenant to the release which have been considered by the Prescribed Authority as is reflected from the order impugned are : (1) that the landlord had no requirement of dressing room, O.P.D. etc as this requirement could be for nursing home and need was not set up for opening the nursing home. (2) the landlord’s wife did not produce certificate for running coaching centre. The need for running coaching was imaginary. 8. The objection of the tenant regarding working of the landlord in G.S.V.M. Medical College, Kanpur was also considered. The finding recorded by both the Courts below that the applicant No. 1 Saurabh Shah was working on the contract basis and was not a permanent lecturer and therefore there was no prohibition of private practice, moreover, he was not getting practice allowance from the Government. 9. So far as the bona fide need is concerned it was found by the Prescribed Authority as also Appellate Authority that the landlord had set up need for expansion of his profession. The contention of the petitioner-tenant is that there was a house at Bairhana Road Kanpur having an area of 200 Sq. ft., and the landlord could open his nursing home was also considered.It was found by the Prescribed Authority that it was the sole prerogative of the landlord to choose as to how he wanted to expand his business and decide his requirements. The tenant cannot dictate his terms and conditions to the landlord. It was further found that wife of the landlord was an educated lady and if she wanted to open a coaching for young children, no certificate is required. The tenant cannot dictate his terms and conditions to the landlord. It was further found that wife of the landlord was an educated lady and if she wanted to open a coaching for young children, no certificate is required. However it was also considered that in case she apply for getting permission for opening a coaching centre, the concerned authority would require her to furnish details of the infrastructure possessed by her. The need of the applicant No. 1Saurbah Saha and his wife was found bona fide and genuine by both the Courts below. 10. At this stage learned counsel for the petitioner submits that the order passed by the Prescribed Authority cannot be sustained for the only reason that it had referred/considered the objections of Rajeev Kumar Gupta another tenant and not of the petitioner, whose shop has been released. This contention of the learned counsel for the petitioner is not acceptable for the simple reason that the grounds taken to contest the release application by the petitioner have been narrated in detail by the Prescribed Authority before arriving at a finding of bona fide need. By accidental omission in place of the name of the petitioner tenant name of another tenant has been mentioned but for this reason the order cannot be faulted. 11. Moreover the order passed by the Prescribed Authority has been challenged in appeal. The Appellate Authority had also considered the objection of the petitioner in detail and after consideration of the evidence on record had recorded the finding of bona fide need. 12. Further contention is that identical applications have been filed for five shops. Each release application is identically worded and for the same need set up in paragraph 6 of the release application.These five applications cannot be said to be composite applications for one need of expansion of clinic. Dealing with this submission, the map of House No. 52/43-A in dispute is to be perused which reflects that there are five shops in the building out of which the shop in question is adjacent to the clinic of the landlord. The area of the shop in occupation of the petitioner is 16x22.11x17.6 on one side and 16x19.11 on other side. The need set up by the landlord was for expansion of his clinic and to install latest machines in his clinic for the patients for which much more space is required. The area of the shop in occupation of the petitioner is 16x22.11x17.6 on one side and 16x19.11 on other side. The need set up by the landlord was for expansion of his clinic and to install latest machines in his clinic for the patients for which much more space is required. Looking to the need as narrated in paragraph-6 of the release application this Court is of the view that the release application cannot be rejected on the ground that the landlord require vacant possession of the shop in question alongwith the shops of four other tenants. 13. The release application cannot be rejected on the ground that for the same need, four separate applications have been moved. 14. Lastly learned counsel for the petitioner submits that the findings recorded by the Courts below cannot be sustained for the reason that there was no discussion on the bona fide need of the landlord.This contention of the learned counsel for the petitioner cannot be accepted for the reason that the objections raised by the petitioners have been dealt in detail by the Courts below.For the alternative accommodation suggested by the petitioner-tenant, it has categorically been held that the petitioner cannot dictate his terms and condition to the landlord. The landlord is the best judge of his requirement. The need was found genuine and pressing. 15. After recording the finding on bona fide need the Appellate Authority has also examined the question of comparative hardship of the landlord and tenant. It was found that the tenant’s wife owns a house No. 133/225-M Block, Kidwai Nagar, Kanpur Nagar in which she had constructed shops. Panchshala paper No. 48 was filed by the landlord on which it was recorded that in the said house there exist three shops which have been duly recorded in the Municipal record and as such the tenant would not suffer any hardship in case the shop in question is vacated by him. 16. Learned counsel for the petitioners lastly submits that the petitioners-tenant undertake to vacate the shop in question within a period of six months and he may be granted time to settle his belongings. 17. In view of this submission, it is provided that : 1. the petitioners shall file an undertaking in the form of an affidavit before the Court below within a period of three weeks alongwith the certified copy of this order. 2. 17. In view of this submission, it is provided that : 1. the petitioners shall file an undertaking in the form of an affidavit before the Court below within a period of three weeks alongwith the certified copy of this order. 2. In case, the petitioners file such an undertaking than they may be allowed to occupy the shop till Ist March, 2016. 3. In case, the petitioners fail to handover the vacant possession by the above mentioned date or fail to furnish the undertaking within the time given above, appropriate proceeding for his eviction be proceeded in accordance with law. 18. The Petitioners shall continue to pay Rs,.1000/- per month towards rent and damages as per the interim order granted by this Court till the date of vacation of the premises in question. The payment shall be made by 7th of each succeeding month. With these observations, the writ petition is dismissed. —————— IN RE: Civil Misc. Correction Application No. 343902 of 2015 dated 1.10.2015 : Inadvertently certain facts have wrongly been transcribed in the order dated 1.9.2015 passed in the instant writ petition which relate to the connected writ petition No. 34222 of 2014.The correction application has been filed to delete those lines. The correction application is allowed.The order dated 1.9.2015 is hereby recalled and substituted by the following order : “Heard Shri Somesh Khare, learned counsel for the petitioner and Shri Manas Bhargava, for the respondents. 2. The release application has been filed in the year 2010 for the need of the landlord for expansion of his clinic and also to install other units like pathology, X-ray and construction of O.P.D., compounder room, and waiting rooms for the patients. 3. The facts of the case are that adjacent to the shop in which the landlord is running his clinic there are five shops adjacent to each other. The release application has been filed for the bona fide need of expansion of clinic for providing facilities to the patients. In paragraph -6 of the release application, the need set up by the landlord is as under : “6.That according to the large number of patients the petitioners have no ample accommodation with him, where he can arrange his reception room, patients’ waiting room, compounder’s room, dressing room and private wards to treat and to admit his patients. In paragraph -6 of the release application, the need set up by the landlord is as under : “6.That according to the large number of patients the petitioners have no ample accommodation with him, where he can arrange his reception room, patients’ waiting room, compounder’s room, dressing room and private wards to treat and to admit his patients. The petitioner also needs additional space to set up a full fledged Lab equipped X-ray and auto analyser for pathology etc. for the patients admitted as well as day care O.P.D. Patients.” 4. In the written statement specific objection taken by the petitioner was that the landlord had no requirement of compounder room, dressing room, and private wards as these requirements could only be for a nursing home and not for the clinic and there was no proposal for opening a nursing home. As far as other requirements are concerned,no practicing doctor require these facilities at his clinic. 5. The release application for the need of his wife for opening a coaching centre was also contested by the tenant on the ground that no certificate had been produced by her, to establish her need. 6. The release application was further contested on the ground that the landlord was a visiting lecturer in G.S.V.M. Medical College, Kanpur. The tenant had filed information received under the R.T.I. Act indicating therein that the landlord was working as Lecturer in Physiology department on contract basis and was getting Rs. 40,000/- as remuneration per month. On the basis of this information the tenant had pleaded that the landlord was prohibited from private practice and for this illegal proposal of the landlord the release application could not be allowed. 7. The Prescribed Authority vide judgment and order dated 16.8.2013 has allowed the release application. A perusal of the order indicates that though the objections of the tenant to the release have been considered by the Prescribed Authority they are: (1) that the landlord had no requirement of dressing room, O.P.D. etc as this requirement could be for a nursing home and need was not set up for opening the nursing home. (2) the landlord’s wife did not produce certificate for running coaching centre. The need for running coaching was imaginary. (3) The objection of the tenant regarding working of the landlord in G.S.V.M. Medical College, Kanpur was also considered. 8. (2) the landlord’s wife did not produce certificate for running coaching centre. The need for running coaching was imaginary. (3) The objection of the tenant regarding working of the landlord in G.S.V.M. Medical College, Kanpur was also considered. 8. The finding recorded by both the Courts below is that the applicant No. 1 Saurabh Shah was working on contract basis and was not a permanent lecturer and therefore there was no prohibition of private practice, moreover, he was not getting practice allowance from the Government. 9. So far as the bona fide need is concerned it was found by the Prescribed Authority as also the Appellate Authority that the landlord had set up need for expansion for his clinic. The contention of the petitioner-tenant that there was a house at Bairhana Road Kanpur having an area of 200 Sq. ft., and the landlord could start his nursing home was also considered.It was found by the Prescribed Authority that it was the sole prerogative of the landlord to choose as to how he wanted to expand his clinc and decide for his requirements. The tenant cannot dictate his terms and conditions to the landlord. It was further found that the wife of the landlord is an educated lady and if she wanted to open a coaching for young children, no certificate was required. However it was also considered that in case she apply for getting permission for opening a coaching centre she may be required to furnish the details of the infrastructure possessed by her. The need of the applicant No. 1Saurbah Saha and his wife was thus found bona fide and genuine by both the Courts below. 10. Further contention of the petitioner is that five identical applications have been filed for five shops. Each release application is identically worded and for the same need set up in paragraph-6 of each release application,five applications could not have been considered.These applications could not be considered to be composite application for one need of expansion of clinic. 11. To deal with this submission, the map of House No. 52/43-A in dispute is to be perused which reflects that there are five shops in the building, the shop in question is adjacent to the clinic of the landlord. The area of the shop in occupation of the petitioner is 7'.11 X 25.3 on one side and 16.0X 22'.11" on other side. The area of the shop in occupation of the petitioner is 7'.11 X 25.3 on one side and 16.0X 22'.11" on other side. The need set up by the landlord was for expansion of his clinic and to install latest machines in his clinic much more space is required. Looking to the need as narrated in paragraph-6 of the release application this Court is of the view that the release application cannot be rejected on the ground that the landlord require vacant possession of the shop in question alongwith the shops of four other tenants. The release application cannot be rejected on the ground that for the same need, five separate applications have been moved. 12. Lastly learned counsel for the petitioner submits that the findings recorded by the Courts below cannot be sustained for the reason that there was no discussion on the bona fide need of the landlord.This contention of the learned counsel for the petitioner cannot be accepted for the reason that the objections raised by the petitioners have been dealt in detail by the Courts below.For the alternative accommodation suggested by the petitioner-tenant, it has categorically been held that the petitioner cannot dictate his terms and condition to the landlord. The landlord is the best judge of his requirement. The need was found genuine and pressing. 13. After recording the finding on bona fide need the Appellate Authority has also examined the question of comparative hardship of the landlord and tenant and recorded a finding that the landlord would suffer more hardship. 14. Learned counsel for the petitioner lastly submits that the petitioner-tenant may be granted some time to vacate the shop in question in order to settle his belongings. 15. In view of this submission, it is provided that : 1. the petitioner shall file an undertaking in the form of an affidavit before the Court below within a period of three weeks alongwith certified copy of this order. 2. In case, the petitioner file such an undertaking, he may be allowed to occupy the shop in question till Ist March, 2016. 3. In case, the petitioner fails to handover the vacant possession or fails to furnish the undertaking within the time given above, appropriate proceeding for his eviction may be proceeded in accordance with law. 16. 2. In case, the petitioner file such an undertaking, he may be allowed to occupy the shop in question till Ist March, 2016. 3. In case, the petitioner fails to handover the vacant possession or fails to furnish the undertaking within the time given above, appropriate proceeding for his eviction may be proceeded in accordance with law. 16. The petitioner shall continue to pay Rs,.1000/- per month towards rent and damages as per the interim order granted by this Court till the date of vacation of the premises in question. The payment shall be made by 7th of each succeeding month. 17. With these observations, the writ petition is dismissed.” 18. The time for filing of the undertaking by the petitioner before the Court below has expired, the same is hereby extended for a further period of three weeks.