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2015 DIGILAW 4016 (ALL)

Krishna Mohan v. Krishna Swaroop

2015-12-16

SUNITA AGARWAL

body2015
JUDGMENT Sunita Agarwal, J. – By means of the present writ petition, the order of the Appellate Court below in rejecting the release application is under challenge. The release application has been filed for the need of the landlord and his son. It is categorically stated in paragraph no. 2 of the release application that there exist 5 shops on the ground floor of the premises in question out of which two shops namely shop no. 2 and shop no. 5 are in the tenancy of the respondent (Krishna Swaroop). Initially shop no. 2 was given on rent but later on shop no. 5 was also leased out to the respondent. 2. With the passage of time, the petitioner's sons have grown up and his third son Tushar Gaurav wanted to start his business in the shop in question The prayer was made to release one shop of smaller area of 5'x11.5' shop no. 2 in the tenancy of the respondent. Another shop no. 5 measuring 7'x10.5' will still be under his tenancy. There is no dispute about the area of two shops. 3. The release application was allowed by the Prescribed Authority with the finding that the petitioner needed the shop in dispute namely shop no. 2 for his son Tushar Gaurav. The contention of the respondent that the petitioner's son was doing accountancy work was repelled and it is recorded by the Court below that the respondent has not been able to establish that the son of the landlord was engaged in any business. 4. On the comparative hardship, it was recorded by the Court below, that there is no other shop in vacant possession of the landlord. In case one shop is vacated by the tenant he will not suffer much hardship, on the other hand in case of rejection of release the landlord son would be deprived his need to start a business. 5. In appeal, these two findings recorded by the Prescribed Authority have not been touched rather the appellate Court on its own notion has rejected the release application on the ground that the landlord had failed to establish his bona fide need for the shop in question inasmuch as it is not clear in the release application as to whether the landlord or his son require the shop in question. Further the nature of the proposed business has not been disclosed in the release application. The landlord being 60 years old could not have any need to start a business, this apart the landlord's son was aged about 35 years and therefore it could not be believed that he was unemployed. 6. Third ground for rejection of the release is that the landlord had earlier filed a SCC suit for eviction of the tenant on the ground of default in payment of rent in the year 1987 and 1990 which were dismissed and the revision was also rejected. After dismissal of these suits, the release application under Section 21 (1) (a) has been filed in an attempt to evict the petitioner. As the landlord has not come with the clean hands, the release application cannot be entertained. 7. In paragraph 11 of the judgement of the Appellate Court below, on the basis of Annexure 2 appended to the affidavit 47Ga filed by the landlord, it was recorded that one shop in possession of the landlord which can be used by him to set up business for his son. These findings cannot be sustained for the reason that in the release application the categorical stand of the landlord is that his son Tushar Gaurav was unemployed and he needed the shop to start his business. There is no confusion in the mind of the landlord and the Appellate Court has developed an irrelevant ground to reject the release. 8. So far as the availability of one shop to the landlord is concerned the attention of the Court has been invited to page 89 of the paper book to assert that this document dated 14.08.1986 of the Nagar Palika Ghaziabad indicates that in the year 1986-1991 there existed 5 shops in the premises in question out of these 5 shops are, shop no. 2 was shown in the tenancy of Krishan Swaroop the respondent, whereas shop no. 5 was in occupation of the landlord. It is admitted between the parties that on the date of filing of the release i.e. in the year 2002, the shop no. 5 was in the tenancy of the petitioner namely Krishan Mohan. 9. 2 was shown in the tenancy of Krishan Swaroop the respondent, whereas shop no. 5 was in occupation of the landlord. It is admitted between the parties that on the date of filing of the release i.e. in the year 2002, the shop no. 5 was in the tenancy of the petitioner namely Krishan Mohan. 9. Thus this document could not have been made basis for regarding a finding by the Appellate Court that one shop was available to the landlord on the date of filing of the release application or on the date of passing of the order of release. 10. The finding recording availability of one shop on the basis of the municipal assessment extract of the year 1986-1991 appended with the affidavit 47 Ga is nothing but a misreading of the document. From the order of the Appellate court below, it is apparent that it was bent upon to reject the release application on any ground. The findings of the Appellate Court on the bona fide need and comparative hardship are perverse being against the evidence on record, they cannot be sustained. 11. Lastly, on the basis of averments made in the supplementary affidavit paragraph 3, 4 and 5 filed today, learned counsel for the petitioner vehemently asserted that one shop in the tenancy of Shri M.K. Bansal came in the vacant possession of the petitioner landlord who sold it to one Shri Devender Chaudhary son of Shri Ram Das Chaudhary after getting it vacated during the pendency of the release. The date of vacation of the shop in question by Shri M.K. Bansal, the sitting tenant is not on record. 12. A perusal of the sale deed filed as Annexure SA-1 indicates that the shop no. 3 existing on the ground floor of the building in question has been sold by the petitioner landlord but there is no indication therein that it was not occupied by a tenant. Only this much is stated in the sale deed that there is no flaw in the ownership rights of the petitioner shop in question. In absence of anything on record regarding the fact that at any point of time the shop no. 3 was vacated by the sitting tenant, availability of the said shop in vacant state to the landlord cannot be determined. 13. In absence of anything on record regarding the fact that at any point of time the shop no. 3 was vacated by the sitting tenant, availability of the said shop in vacant state to the landlord cannot be determined. 13. The assertion made in the supplementary affidavit, therefore, cannot be accepted to conclude that the said shop came in possession of the landlord. Mere fact of sale of the shop would not frustrate the need of the landlord. Even otherwise, the tenant is in possession of one shop in the same premises which is of a larger area. 14. This apart there is nothing on record to establish that the landlord's son is engaged elsewhere. 15. In the totality of the facts and circumstances of the case, this Court finds that the landlord needed the shop in question for his son and there is no alternative place available to him for the need set up in the release application. 16. The finding of the Prescribed Authority is hereby affirmed. The release application is allowed. The respondent is directed to vacate the shop in question within a period of two months. The petitioner shall be entitled to an amount as provided in the proviso to Sub section (1) of Section 21 i.e. an amount equivalent to two years rent as compensation at the time of vacation of the shop in question. However he shall continue to pay current rent regularly to the landlord till the vacation of the shop in question. 17. With the above observations and directions, the writ petition is allowed. Petition allowed.