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2015 DIGILAW 3009 (ALL)

Amit Kumar v. Puttan Babu

2015-09-21

SUNEET KUMAR

body2015
JUDGMENT Suneet Kumar, J. – Heard Sri Tarun Agrawal and Vinayak Mithal, learned counsel appearing for the petitioner-tenant and Sri B.N. Agrawal and Sri Sanjay Agrawal, learned counsel appearing for the respondent-landlord. 2. A release application was filed by the first respondent-landlord under Section 21(1)(a) of the Act XIII of 1972 for release of the shop in dispute situated in Orai at district Jalaun. The landlord pleaded bona fide need for his wife and three sons who were educated but unemployed. The release application was allowed by the Prescribed Authority. Aggrieved, petitioner preferred an appeal being Appeal No.07/2007 which was allowed on 28 November 2008 rejecting the release application. Aggrieved, first respondent-landlord assailed the order in a petition being Writ - A No. - 3171 of 2009 (Puttan Babu v. Special Judge (SC/ST Act) Jalaun at Orai & others), this Court allowed the petition, remanded the matter by order dated 6 August 2014 directing the Appellate Court to decide the bona fide need set up by the landlord for two sons, namely, Pramod Kumar and Sujeet Kumar. The relevant extract is as follows: "In view of the aforesaid facts and circumstances, the judgement and order passed by the appellate court dated 28.11.2008 is unsustainable in law and is hereby quashed and the matter is remanded to the appellate court for considering and deciding the need of the petitioner-landlord for settling his two sons Pramod Kumar and Sujeet Kumar in independent business from shop-in-dispute afresh in accordance with law as expeditiously as possible by curtailing all unnecessary adjournments and fixing short dates in quick succession preferably within a period of six months from the date of production of the certified copy of this order." 3. The Appellate Court upon considering the rival contention, material and evidence available on record returned a finding recording the bona fide need of the premises in favour of the sons. The appellate order dated 11 August 2015 is being assailed in writ jurisdiction. 4. Submission of the learned counsel for the petitioner is that despite the landlord having several vacant shops in city Orai, the sons being gainfully employed in their own business, Appellate Court returned a perverse finding that they are neither gainfully employed nor any accommodation were available for commencing independent business. The impugned order is, therefore, illegal and bad. 5. 4. Submission of the learned counsel for the petitioner is that despite the landlord having several vacant shops in city Orai, the sons being gainfully employed in their own business, Appellate Court returned a perverse finding that they are neither gainfully employed nor any accommodation were available for commencing independent business. The impugned order is, therefore, illegal and bad. 5. In rebuttal, Sri Agarwal, learned counsel appearing for the respondent-landlord would submit that the impugned order is lawful and legal, the matter was remanded to the Appellate Court on limited question regarding bona fide need of the two sons which has been duly considered, it is, therefore, urged that the order being lawful and legal, should not be interfered in writ jurisdiction. 6. I have perused the record. The contention that was raised before the Appellate Court is being reiterated by the learned counsel for the petitioner in writ jurisdiction. The submission is factual. It was contended before the Authorities by the landlord that both the sons are unemployed, one of the sons assists the landlord in medicine shop, whereas, the other son after obtaining computer degree is unemployed, therefore, it was urged that it is the social obligation and responsibility of the father to establish his sons in business for which they have no place or space, hence, the release application. 7. The petitioner-tenant urged that the landlord has a shop adjacent to the disputed property in which cloth business was being carried out. One of the son assists the landlord in the business, but presently the shop has been given to other person without allotment. It was further contended that adjacent to the cloth shop, the landlord has a large shop, half of which is being used for medical store and remaining half was lying vacant which was sufficient to establish the sons in business. Apart from the shops, the petitioner has a residential accommodation in Surya Nagar, Orai the locality has gradually grown into a market place, the landlord has rented two shops; finally, it was contended that both the sons are residing in Kanpur, they have two accommodations and several shops there and were engaged in the business of medicine and coaching respectively. The Appellate Court upon considering the material and evidence available on record returned a finding that no vacant shop or place was available in the city of Orai, Jalaun. The Appellate Court upon considering the material and evidence available on record returned a finding that no vacant shop or place was available in the city of Orai, Jalaun. The tenant did not produce any evidence to establish his contention, cloth shop as referred to was owned by the wife of the landlord, the alleged allottee was the servant engaged in the shop. The tenant failed to produce evidence before the authorities to show that the medical shop in the name and style 'Vandana Medical Store' was being run in half portion and the other half was vacant. As regards, accommodation in Surya Nagar belong to the landlord, it has been recorded that it is the ancestral house of which the landlord is co-owner along with his two brothers, no commercial shop is being run in the house, rather there is no possibility to run any commercial activity as the door of the hall situated on the ground floor opens in very narrow lane which is not conclusive for business. As regards, the building and shop in the city of Kanpur, the tenant failed to produce any evidence that the sons were owning any commercial property, the shop as alleged belonging to the son, was on rent and was not owned by the sons of the landlord. Photographs of the shops produced by the tenant were not accepted by the Appellate Court in absence of material to support the photographs. Learned counsel for the petitioner-tenant failed to show or point out any perversity in the findings returned by the courts below. The argument being advanced before this Court being purely factual, concurrent finding of the facts, therefore, cannot be gone into or disturbed in writ jurisdiction. 8. In light of the above, it is apparent that the courts below have noted that the landlord respondent does not have any shop to his disposal. It is also a trite law that a landlord cannot be compelled to carry out commercial activity from his residential premises. This apart, it has also been settled in a catena of judgments that every member of the landlords family is entitled to start his independent business and cannot be compelled to participate in the family business as being otherwise asserted by the tenant/petitioner. (Refer: Avinash Chandra and others v. VIIth A.D.J. Ghaziabad, 2008 (70) ALR 866). 9. In Mohd. This apart, it has also been settled in a catena of judgments that every member of the landlords family is entitled to start his independent business and cannot be compelled to participate in the family business as being otherwise asserted by the tenant/petitioner. (Refer: Avinash Chandra and others v. VIIth A.D.J. Ghaziabad, 2008 (70) ALR 866). 9. In Mohd. Ayub v. Mukesh Chand, 2012 (90) ALR 908 (SC) while interpreting the provisions of law, Supreme Court has observed in para 15 as under: - "15. It is well settled the landlord's requirement need not be a dire necessity. The court cannot direct the landlord to do a particular business or imagine that he could profitably do a particular business rather than the business he proposes to start. It was wrong on the part of the District Court to hold that the appellants' case that their sons want to start the general merchant business is a pretence because they are dealing in eggs..........Similarly, length of tenancy of the respondent in the circumstances of the case ought not to have weighed with the courts below." 10. In Rishi Kumar Govil v. Maqsoodan, 2007 (67) ALR 774 (SC) on the plea and evidence relating to bona fide need of landlord, Apex Court in para 19 observed as under: - "19. In Ragavendra Kumar v. Prem Machinery and Co., 2000 (38) ALR 458 (SC), it was held that it is the choice of the landlord to choose the place for the business which is most suitable for him. He has complete freedom in the matter. In Gaya Prasad v. Pradeep Srivastava, 2001 (42) ALR 685, it was held that the need of the landlord is to be seen on the date of application for release. In Prativa Devi (Smt.) v. T.V. Krishnan, 1996 (5) SCC 353 it was held that the landlord is the best Judge of his requirement and Courts have no concern to dictate the landlord as to how and in what manner he should live." 11. In Prativa Devi (Smt.) v. T.V. Krishnan, 1996 (5) SCC 353 it was held that the landlord is the best Judge of his requirement and Courts have no concern to dictate the landlord as to how and in what manner he should live." 11. The Supreme Court reiterated the principles in determining the bona fide need and comparative hardship in Krishna Kumar Rastogi v. Sumitra Devi, 2014 (107) ALR 323 (SC) wherein the Court observed: - "Merely for the reason that some witness has stated that the landlord attempted to sell the property, his statement cannot be said to be reliable, as has been believed by the High Court or the appellate court, unless such fact is supported with documentary proof. There appears no document on record to support the bald statement of the witness to dislodge the case of bona fide requirement of the shop claimed by the appellant for his son who was unemployed." 12. The matter at hand has been settled by both the courts below and does not warrant any interference by this Court in exercise of its powers conferred under Article 226 of the Constitution of India. The matter has for now almost 15 years remained pending before the courts below. 13. Upon the absence of the tenant to search for an alternate accommodation will have the factum of comparative hardship tilt in favour of the landlordnswering respondent. (Vide- Ganga Devi v. D.J. Nainital, 2008 (72) ALR 426). 14. The concurrent finding of fact have settled the issue of both bona fide need and comparative hardship, the same cannot be disturbed by this Court under Article 226 of the Constitution of India. (Vide- Katori Devi v. A.D., Haridwar and others, 2004 (57) ALR 125 and Shamshad Ahmad and others v. Tilak Raj Bajaj, 2008 (73) ALR 141 (SC). 15. For the reasons and law stated herein above, the writ petition is accordingly dismissed. 16. No order as to costs. 17. Upon dismissal of the writ petition, learned counsel appearing for the petitioner prays that the petitioner may be granted some reasonable time to vacate the premises in question. 18. 15. For the reasons and law stated herein above, the writ petition is accordingly dismissed. 16. No order as to costs. 17. Upon dismissal of the writ petition, learned counsel appearing for the petitioner prays that the petitioner may be granted some reasonable time to vacate the premises in question. 18. On the request by learned counsel for the petitioner, 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 May 2016. The aforesaid undertaking on oath shall be given by the petitioner before the Court below within four weeks from today and the petitioner undertaking to deposit the monthly rent/compensation of the premises in question before the Court below, @Rs.2,500/- per month 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. 19. It is made clear that in the event of default committed by the petitioner/tenant in any of the conditions/undertaking, the order shall stand automatically vacated without reference to the Court. Petition Dismissed.