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2015 DIGILAW 325 (UTT)

Gauri Shankar v. Ved Prakash

2015-06-25

ALOK SINGH

body2015
JUDGMENT : Alok Singh, J. Present petition has been filed assailing the judgment and order dated 18.08.2010, passed by the Additional District Judge/IInd F.T.C., Dehradun in Rent Control Appeal No. 92 of 2008, whereby judgment and order dated 25.06.2008, passed by the Prescribed Authority/Civil Judge (Junior Division), Vikas Nagar, Dehradun in P.A. Case No. 73 of 2003, Gauri Shankar Vs. Buddhumal, was set aside and application seeking release of the suit property on the ground of bona fide need of the landlord was dismissed. 2. Brief facts of the present case, inter alia, are that landlord/petitioner, herein, has filed P.A. Case No. 73 of 2003, Gauri Shankar Vs. Buddhumal, in the Court of Prescribed Authority seeking eviction of the tenant and to release the suit property (shop in question) in favour of the landlord on the ground of bona fide need stating therein that petitioner/plaintiff, therein, is owner and landlord of three shops in Harbartpur; in one of the shops, Buddhumal is doing business of general store as a tenant while another shop is in the tenancy of Jado Ram and in the third shop petitioner/landlord is doing grocery shop business; Ajay Kumar and Amit Kumar, both sons of the landlord/ petitioner, herein, could not get higher education and are unemployed youth ; shop in question is bonafidly required by the landlord/petitioner, herein, to establish his unemployed son Ajay Kumar therein. It is further stated by the landlord/ petitioner that petitioner as well as his two unemployed sons, namely, Ajay Kumar and Amit Kumar cannot be adjusted in a shop, wherein landlord/petitioner, herein, is carrying on his grocery shop business. It is further stated that tenant Buddhumal has other properties in Harbartpur, including residential as well as commercial properties, and some of the shops owned by the tenant are let out by the tenant Buddhumal to others and in the event of eviction of the tenant from the tenanted shop, tenant would not suffer any hardship while in the event of rejection of the release application, landlord/petitioner, herein shall have no other suitable place to settle his unemployed son Ajay Kumar for doing his own independent business. 3. 3. Release application was hotly contested and it was stated in the written statement that landlord is having other properties and his both sons are doing business with the landlord in the shop owned by the landlord which is near to the tenanted shop. 4. During the pendency of the release application before the Prescribed Authority, original tenant Buddhumal expired and his sons and widow were substituted as his legal heirs. Initially, release application was allowed by the Prescribed Authority, vide judgment and order dated 25.06.2008, directing eviction of the respondents therefrom and releasing the shop in question in favour of the landlord to meet out his bona fide, pressing and urgent need to establish his son Ajay Kumar therein. Feeling aggrieved, Rent Control Appeal No. 92 of 2008 was preferred by the respondents, herein, which was allowed by the impugned judgment and order dated 18.08.2010. Feeling aggrieved, landlord has knocked the doors of this Court by filing present petition. 5. I have heard Mr. Lok Pal Singh, learned counsel for the landlord/petitioner and Mr. Lokendra Dobhal, learned counsel, appearing for the tenants/respondents, and have carefully perused the record. 6. Learned counsel for the parties could not dispute settled position of law that every landlord has legal right to establish his unemployed son independently and every unemployed major son of the landlord has every right to start his own independent business. 7. In my humble opinion, it is settled position of law that landlord is master of his choice and tenant cannot dictate the landlord as to where he should establish his unemployed son and as to how his unemployed son should earn his livelihood. 8. In the present case, the only question which requires to be considered is as to whether landlord has any alternate suitable place, wherein unemployed son of the landlord, namely, Sri Ajay Kumar, can be established and can start his own business to earn his livelihood independently. 9. There is no dispute that landlord is having three shops and in the one shop landlord himself is doing grocery business and another shop is in the tenancy of Jado Ram and the third shop is in the possession of the respondents, which was let out to the original tenant Buddhumal. It is not in dispute that landlord has no other commercial vacant shops, wherein his unemployed son Ajay Kumar can start his own independent business. 10. It is not in dispute that landlord has no other commercial vacant shops, wherein his unemployed son Ajay Kumar can start his own independent business. 10. Mr. Lokendra Dobhal, learned counsel appearing for the tenants/respondents has argued that initially one shop was let out to Sri Jado Ram, however, Jado Ram has vacated the shop which is now in the possession of Balbir Singh and his sons. According to Mr. Dobhal, it seems that after Jado Ram has vacated the shop it was let out by present petitioner/landlord to Sri Balbir Singh. Had there been any need for his son Ajay Kumar, Balbir Singh would have not been inducted as tenant. Secondly, if Balbir Singh is sub-tenant landlord can get that shop vacated only on this ground. 11. Arguments so advanced by Mr. Lokendra Dobhal, learned counsel for the respondents, cannot be accepted for the simple reason that building in question, including the three shops, is covered by the provisions of U.P. Rent Act No. 13 of 1972. If third shop was vacated by Jado Ram, original tenant, vacancy could have been declared by the Rent Control & Eviction Officer under Section 12 of the Act and same could have been allotted by Rent Control & Eviction Officer under Section 16 of the Act. In view of Section 11 of U.P. Rent Act No. 13 of 1972, landlord had absolutely no right to create new tenancy without there being allotment order under Section 16 of the Act. In the present case, neither vacancy was ever declared, nor new tenancy could have been created by the landlord in favour of Balbir Singh and his sons. 12. I find force in the arguments of Mr. Lok Pal Singh, learned counsel for the landlord that even if it is presumed that shop in the tenancy of Jado Ram is in the possession of sub-tenants i.e. Balbir Singh and others, it does not mean that shop is vacant and is available to the landlord to establish his unemployed son Sri Ajay Kumar therein. It has further been stated by Mr. Lok Pal Singh, learned counsel for the petitioner, that it is not established on record that the petitioner/landlord has ever allowed Balbir Singh and his sons to occupy the shop under the tenancy of Jado Ram after getting evicted Jado Ram therefrom. 13. It has further been stated by Mr. Lok Pal Singh, learned counsel for the petitioner, that it is not established on record that the petitioner/landlord has ever allowed Balbir Singh and his sons to occupy the shop under the tenancy of Jado Ram after getting evicted Jado Ram therefrom. 13. As far as other properties of the landlord are concerned, admittedly those are not the commercial properties. No tenant can dictate the landlord that he should construct the new shops in the open plot available with the landlord to establish his son. 14. It is also settled position of law that even in civil proceedings, ordinarily Appellate Court should allow the findings of the fact recorded by the Trial Court to prevail even if two views are possible and the view taken by the Trial Court should not be lightly disturbed unless and until same is found to be perverse or some important piece of evidence was left to be considered by the Trial Court. It is established on the record that two sons of the landlord, namely, Ajay Kumar and Amit Kumar, are major and both of them are unemployed. The landlord cannot be compelled to adjust his two sons in his own business in the shop being run by the landlord. Every unemployed youth has every right to start his own independent business, therefore, need of the landlord to establish his unemployed son Ajay Kumar seems to be bona fide. 15. As far as question of hardship is concerned, tenants can search alternate place for their business. Since, landlord has no other vacant shop to establish his unemployed son, therefore, in the event of refusal of release, landlord shall have greater hardship than the tenants. 16. Consequently, present petition succeeds and is hereby allowed. Impugned judgment and order dated 18.08.2010 passed by the Appellate Court is hereby set aside and judgment and order dated 25.06.2008 passed by the Prescribed Authority is hereby restored. 17. No order as to costs.