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2015 DIGILAW 362 (UTT)

MOHAN LAL v. VIRENDRA KUMAR

2015-07-21

ALOK SINGH

body2015
JUDGMENT : Hon’ble Alok Singh, J. (Oral) Tenant/petitioner has invoked supervisory jurisdiction of this Court under Article 227 of the Constitution of India, assailing the judgment/order dated 19.11.2014, passed by 8th Additional District Judge, Dehradun, whereby learned Appellate Court was pleased to allow the Rent Control Appeal No. 53 of 2007, Smt. Radha Sethi and others Vs. Mohan Lal, directing the tenant/petitioner, herein, to vacate and handover the peaceful actual possession to the landlord within 30 days from the date of judgment on the ground that landlord has bona fide, genuine and pressing need of the shop, in question. 2. The brief facts of the present case, inter alia, are that property no. 24, E.C. Road, Dehradun, was earlier owned by Sri Sunder Lal Sethi, father of the respondent no.1, herein; property no. 24, E.C. Road, Dehradun has three shops on the front while has residential portion on the back side; shop, in question, is measuring about 20X9 feet and was let out to the tenant Mohan Lal, petitioner, herein, about 35 years before; after the death of Sri Sunder Lal Sethi, entire property was inherited by his widow Smt. Radha Sethi and two sons Virendra Kumar and Chandra Prakash; Smt. Radha Sethi moved an application under Section 21 (1) (a) of U.P. Act No. 13 of 1972, in the Court of Prescribed Authority/1st Additional Civil Judge (Sr. Div.) Dehradun, seeking eviction of the tenant/petitioner, herein, saying that Smt. Radha Sethi had two sons, namely Virendra Kumar and Chandra Prakash; Chandra Prakash is a physically handicapped person and Virendra Kumar is virtually unemployed married youth; Virendra Kumar is engaged in temporary business of ice-cube and ice-cream behind the shop, in question, in the residential portion; shop, in question, is required to establish Virendra Kumar and his unemployed son Deepak to start independent business therein. 3. 3. Written statement was filed by the tenant/petitioner, herein, stating therein that there were other two shops adjacent to the shop, in question, and in the year 1980, Sri Sunder Lal Sethi, the then owner /landlord, after removing the partition wall between the two shops, has let out both the shops as one unit to the wine contractor; Virendra Kumar is not unemployed and is engaged in ice cube/ice cream manufacturing and selling business in a place behind the shop, in question; landlord is earning handsome rental income by letting out adjacent shops to the wine contractor at a higher rate of rent; in the event of releasing the shop, in question, tenant would suffer irreparable loss as well as more hardship than the landlord. 4. Learned Prescribed Authority was pleased to record the finding in favour of the landlord on the question of bona fide need of the shop, in question, and has returned the findings of fact to the effect that Virendra Kumar and Deepak the son of Virendra Kumar are although engaged in temporary business of manufacturing and selling of ice-cube and ice-cream in the residential portion behind the shop, in question, however, same cannot be said to be permanent, therefore, shop, in question, is required bona fidely and genuinely for Virendra Kumar and his son Deepak to start their independent business therein; learned Prescribed Authority has further observed that although bona fide need is in favour of the landlord, however, if tenant is evicted form the shop, in question, he would suffer more hardship, in view of the fact that tenant is not having independent income, while wife of Virendra Kumar is a teacher and is getting salary and landlord is having another rental income from other two shops which were let out to the wine contractor. 5. Learned Prescribed Authority having found hardship in favour of the tenant was pleased to reject the application seeking release vide judgment and order dated 30.04.2007. Feeling aggrieved, landlord has preferred Rent Control Appeal No. 53 of 2007 in the Court of District Judge, Dehradun under Section 22 of U.P. Act No. 13 of 1972. 6. It is important to mention here that during the pendency of the case before the Prescribed Authority, Smt. Radha Sethi had expired, therefore, present respondents were substituted as legal heirs of the landlord before the Prescribed Authority. 7. 6. It is important to mention here that during the pendency of the case before the Prescribed Authority, Smt. Radha Sethi had expired, therefore, present respondents were substituted as legal heirs of the landlord before the Prescribed Authority. 7. Learned Appellate Authority vide impugned judgment dated 19.11.2014 was pleased to observe that landlord has bona fide and genuine need of the shop, in question, for the business of Virendra Kumar and his son Deepak, who are engaged in temporary business of manufacturing and selling of ice-cube and ice-cream in the residential portion behind the shop, in question. 8. Learned Appellate Court was further pleased to observe that since landlord has bona fide need of the shop, in question, therefore, in the event of rejecting the release application, landlord would suffer more hardship than the tenant and the tenant may search alternate shop to shift his business therein. 9. Having observed so, learned Appellate Court was pleased to allow the appeal vide impugned judgment and order dated 19.11.2014. Feeling aggrieved, tenant has approached this Court by way of present writ petition. 10. I have heard Mr. V.K. Kohli, learned senior counsel assisted by Mr. Sudhir Kumar, learned counsel appearing for the tenant/petitioner, herein, and Mr. Neeraj Garg, learned counsel appearing for the landlord/respondent, herein, and have carefully perused the record. 11. Mr. V.K. Kohli, learned senior counsel appearing for the tenant/petitioner, herein, contends that Deepak, Son of Virendra Kumar, after his marriage during the pendency of the appeal has shifted to Haryana and has joined private service therein. He, however, does not dispute that Virendra Kumar is engaged in the business of manufacturing and selling of ice-cube and ice-cream in the residential portion behind the shop, in question. 12. Mr. V.K. Kohli, learned senior counsel further submits that landlord has let out two adjacent shops to the wine contractor after removing partition wall therefrom in the year 1980 and every year retail license is being issued to the different wine contractors and different wine contractors are occupying the adjacent shops. Had there been any need for Virendra Kumar to start his business in the shop, in question, he would have not permitted the new contractor to occupy the adjacent shops. 13. Had there been any need for Virendra Kumar to start his business in the shop, in question, he would have not permitted the new contractor to occupy the adjacent shops. 13. Since, it is not in dispute that Virendra Kumar/respondent no.1 is engaged in a business of manufacturing and selling of ice-cube and ice-cream in the residential portion behind the shop, in question, and therefore, need of the landlord to start his business in commercial place i.e. shop, in question, can very well be said to be bona fide need. No tenant can be permitted to dictate the landlord to continue his business in the residential portion and not to shift his business in the commercial portion of the building. 14. As far as the submissions of Mr. V.K. Kohli, learned senior counsel pertaining to the adjacent shops is concerned, admittedly, landlord is not creating fresh tenancy therein every year in favour of the Excise Licencee (Wine Contractor) rather Excise Department is issuing yearly license to run wine shop therein every year. 15. If Excise Department is temporarily allotting the shop which is admittedly covered by the provisions of the U.P. Act No. 13 of 1972, the fault cannot be attributed to the landlord. 16. Since, landlord is engaged in a business of manufacturing and selling the ice-cube and ice-cream in a residential portion behind the shop, therefore, landlord cannot be compelled to continue his business in a residential portion, otherwise, it would amount to unnecessary and undue hardship to the landlord. In the event of eviction of the tenant, tenant may search alternate accommodation on rent in the City of Dehradun. Moreover, Deepak son of Virendra Kumar is not in permanent service in Haryana. Young man is not expected to sit idle waiting for release of shop. Temporary engagement cannot be equated with permanent engagement. 17. In view of the discussion made, hereinabove, I do not find any good reason to take contrary view to the view taken by the Appellate Authority. 18. There is another aspect of the matter. Young man is not expected to sit idle waiting for release of shop. Temporary engagement cannot be equated with permanent engagement. 17. In view of the discussion made, hereinabove, I do not find any good reason to take contrary view to the view taken by the Appellate Authority. 18. There is another aspect of the matter. While exercising supervisory jurisdiction under Article 227 of the Constitution of India, ordinarily this Court should not interfere in the findings of fact recorded by the Courts below, unless this Court finds any jurisdictional or manifest legal error in the judgment or finds that some important piece of evidence was left to be considered by the Courts below which would have resulted into different decision. 19. In the present case, I do not find any jurisdictional or legal error on the part of the Courts below nor such evidence is pointed out which would have resulted into different decision, therefore, no inference in the impugned judgment is warranted. Consequently, petition fails and is hereby dismissed. 20. At this stage, Mr. V.K. Kohli, learned Senior Advocate, appearing for the tenant/petitioner undertakes that tenant shall vacate and hand over peaceful actual physical possession of the shop in question to the landlord/respondents on or before 31.12.2015. In view of the undertaking, time to vacate the shop is granted till 31.12.2015.