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2015 DIGILAW 917 (RAJ)

Radhey Shyam v. Rent Tribunal, Bikaner

2015-04-24

ARUN BHANSALI

body2015
JUDGMENT : 1. This writ petition has been filed by the petitioners aggrieved against judgment and recovery certificate dated 03.08.2013 passed by Rent Tribunal, Bikaner and the judgment dated 16.07.2014 passed by Appellate Rent Tribunal, Bikaner, whereby, the recovery certificate for possession of the suit shop has been granted by the Rent Tribunal and the appeal preferred by the petitioners has been rejected. 2. The respondent No. 3 filed an application under Section 9 of the Rent Control Act, 2001 ('the Act') seeking eviction of the petitioners from the suit premises on the ground of reasonable and bona fide requirement of the premises; it was, inter alia, claimed that the applicant had no issue; earlier Naresh was taken in adoption, who died; the applicant along with his wife reside on the first floor above the suit shop; the shop was quite big, the applicant was aged 81 years and his wife was 76 years old, the applicant is a heart patient and his wife is suffering from Asthma; the applicant and his wife have been advised by the doctor against climbing of stairs and to reside on the ground floor and if applicant and his wife climb the staircase, the same may be fatal for them; the applicant has become quite old and has pain in his knees and and has difficulty in climbing to the first floor and on climbing he along with his wife suffer breathing problems; the applicant for himself and his wife wants to get the premises vacated and reside there after constructing rooms and the premises were required for reasonable and bona fide requirement of applicant himself and his wife. 3. 3. The application was resisted by the petitioners by filing reply; it was, inter alia, submitted that the applicant along with his wife does not reside at the first floor above the suit premises, in fact they reside at house situated at Rani Bazar on the ground floor; the applicant along with his wife was living at Rani Bazar for several years; in the proceedings between the parties at High Court, applicant gave out his address as Rani Bazar; it was claimed that behind the disputed shop there were several rooms lying vacant, in which, there was a big paul (gate); the age alongwith ailment of the applicant and his wife were denied; the applicant has only indicated his desire and there is no need; the portion at the back of the shop was fit for residence; the shop let out to Satyam Bhujiya Bhandar has been vacated and is in possession of the applicant; suit was filed for personal necessity by the applicant in the year 1977, which was rejected, the applicant was harassing the defendants since 1977 and is not in need of the shop; the allegations about the applicant being old and pain in his knees were denied and it was suggested that the applicant can take medicine from the counsel for the defendants for the same; the allegation that the applicant and his wife reside at Rani Bazar on the ground floor were reiterated; it was submitted that the shop is situated in a crowded area and if the applicant's wife has breathing problem she cannot reside at the said place; the entire area was business related; there were two shops lying vacant near the suit premises, which can be utilised for residence. 4. 4. The applicant-respondent filed replication and denied the averments made in the reply; it was reiterated that the applicant along with his wife are residing at the first floor above the shop; the applicant does not have any property or share in the property at Rani Bazar; close relatives of the applicant reside at Rani Bazar and when applicant fell ill, he had to go to Rani Bazar to stay with his close relatives; ration card pertaining to the disputed shop, voter identity card, telephone and electricity connection pertaining to the shop are in existence; the existence of vacant premises besides the shop were denied; the illness of the applicant and his wife and their age were reiterated; it was indicated that Rani Bazar house belongs to Naresh Kumar and after his death to his legal representatives; the applicant does not have any other house other than the premises in question; the vacant shops have not been given on rent and wants to convert the tenanted premises into rooms etc. and reside there and further wants to raise construction after joining the vacant shops. 5. On behalf of the applicant, two witnesses - the applicant himself and his wife were examined; on behalf of the respondents - two witnesses were examined. 6. During the pendency of the proceedings before the Rent Tribunal, applicant's wife Smt. Maina Devi expired. 7. and reside there and further wants to raise construction after joining the vacant shops. 5. On behalf of the applicant, two witnesses - the applicant himself and his wife were examined; on behalf of the respondents - two witnesses were examined. 6. During the pendency of the proceedings before the Rent Tribunal, applicant's wife Smt. Maina Devi expired. 7. After hearing the parties, the Rent Tribunal came to the conclusion that the applicant was an old man, even if, he was aged 76-77 years or 82 years and if he climbs stairs he has pain in his knees and has difficulty in moving around, such an assertion does not require any medical evidence; merely because the applicant was making efforts since the year 1977 to get the suit premises vacated, it cannot be said that the requirement was not bona fide; even if, the applicant was residing at Rani Bazar, from the documentary evidence, it is clear that Rani Bazar property does not belong to the applicant and the suit property only has come to his share and if in the last stage of his life the applicant wants to stay in his own house, it cannot be termed as a mere desire; from the material available on record there was sufficient evidence that the applicant resides on the first floor, regarding which, there was ration card, voter identity card, bills pertaining to telephone and electricity and the plea raised by the applicant was sustained; regarding the availability of godowns at the back of suit premises, it was held that the tenant cannot force the landlord to choose the premises for his requirement and the said aspect has to be left to the landlord himself only; the Tribunal also come to the conclusion that if the premises were not utilised for the purpose for which the present petition has been filed, the defendants would have right to reclaim the possession; ultimately, the recovery certificate was ordered to be issued by the Rent Tribunal. 8. Feeling aggrieved, the petitioners filed an appeal before the Appellate Rent Tribunal. 9. The Appellate Rent Tribunal after hearing the parties reiterated the findings recorded by the trial court and dismissed the appeal. 10. 8. Feeling aggrieved, the petitioners filed an appeal before the Appellate Rent Tribunal. 9. The Appellate Rent Tribunal after hearing the parties reiterated the findings recorded by the trial court and dismissed the appeal. 10. It is against the concurrent findings of both the Tribunals regarding residence of reasonable and bona fide requirement of the landlord that the present writ petition under Article 227 of the Constitution of India has been filed by the petitioners seeking to question the legality and validity of the judgments and the recovery certificate passed by the Tribunals below. 11. It is submitted by learned counsel for the petitioners that the both the Tribunals were not justified in ordering for grant of eviction on the ground of reasonable and bona fide requirement of the landlord; it was submitted that the landlord was harassing the petitioners since the year 1977 when the first suit was filed alleging bona fide requirement of applicant's son Naresh Kumar, which ultimately resulted in passing of the judgment dated 25.11.2003, whereby, the decrees passed by the two courts below were reversed in second appeal by this Court. 12. 12. It was further submitted that the application was filed claiming the requirement for applicant and his wife; applicant's wife expired during the pendency of the application; the applicant was residing along with his grand son at Rani Bazar; there were several godowns lying vacant at the back of the suit shop, which in case the landlord had any requirement could be utilised by him and, besides the same, other shops are lying vacant, which could be utilised for residence; however, the same have not been utilized; it was submitted that looking to the old age, it is quite doubtful as to whether the landlord can now reside after converting the shops in question into a residential place and, therefore, it is apparent that the present requirement is a mere desire and not a reasonable and bona fide requirement of the landlord; it was further submitted that the accommodation at the back of the shops is available with the landlord and which is apparent from the statements of the parties and in case the landlord had any requirement, he could have converted this premises into residential place, however, the very fact that the same has not been done, clearly indicates that there is no requirement and, therefore, the courts below were not justified in passing the impugned recovery certificate and judgments. 13. Reliance was placed on Deena Nath v. Pooran Lal, (2001) 5 SCC 705 and Jai Prakash Gupta (Dead) through LRs. v. Riyaz Ahamad and Anr. (2009) 10 SCC 197 . 14. Vehemently opposing the submissions made by learned counsel for the petitioners, learned counsel for the respondent submitted that both the Tribunals were truly justified in ordering grant of recovery certificate and dismissal of appeal filed by the petitioners; it was submitted that both the Tribunals have concurrently recorded finding of fact regarding reasonable and bona fide necessity of the applicant-landlord and, therefore, no case for exercise of jurisdiction under Article 227 of the Constitution of India has been made out and, therefore, the writ petition filed by the petitioners deserves to be dismissed on this count alone. 15. 15. It was further submitted that the tenant cannot dictate to the applicant-landlord that he should convert the godowns into residential portion and reside therein; it is for the landlord to choose as to which part of his property he wants to put to what use; it was further submitted that the godowns are on rent and the petitioners cannot be heard to indicate that the godowns should be got vacated and whereafter the same should be put to residential use by the petitioners; it was submitted that merely because landlord's wife has expired during the pendency of the proceedings, it cannot be said that the requirement of landlord has come to an end; regarding stay at Rani Bazar, it was submitted that it is not doubt true that children/family of applicant's adopted son Naresh Kumar reside at Rani Bazar and the landlord on account of his ill-health and that of his wife from time to time are required to go and stay along with said family, however, it cannot be said that on account of the said fact the requirement of the petitioners to reside at their own property/premises has come to an end and, therefore, the entire argument raised by the petitioners has no basis; it was prayed that the writ petition filed by the petitioners be dismissed with costs. 16. Reliance was placed on Jacky v. Tiny alias Antony and Ors. 2014 (4) CDR 863 (SC) , Udai Shankar Upadhyay and Ors. v. Naveen Maheshwari, 2010 DNJ (SC) 309 , Shanti and Ors. v. Brijmohan and Ors., 2011 (3) RLW 2218 (Raj.). 17. I have considered the rival submissions made by learned counsel for the parties and have perused the material placed on record along with the record of the Tribunals. 18. It may be noticed that the interim order while sending for record was passed by this Court on 25.08.2014 and the writ petition was admitted on 14.10.2014; whereafter, an order dated 19.01.2015 w as passed by Hon'ble Supreme Court while dismissing the SLP (C) No. 1005/2015, which was preferred by the respondent against the order of admission, giving liberty to the petitioner in SLP to approach the High Court for an expeditious hearing and disposal of the matter and the High Court was directed to consider the same sympathetically keeping in view the ripe old age of the petitioner. 19. 19. From perusal of the material placed on record, it is apparent that the landlord a person of ripe old age filed application seeking eviction of the petitioners-tenants from the suit premises a shop ad measuring 8x20 ft. on the ground of reasonable and bona fide requirement; the requirement pleaded in the application pertains to the fact that the landlord along with his wife were residing at the first floor above the shop in question and on account of old age and medical condition, it was difficult for them to climb the stairs to reach to the first floor of their house and that the landlord wanted the shop in question for converting the same into a residential place; the application was resisted by the tenants denying the age, the medical condition and the requirement of the landlord; it was, inter alia, alleged in the reply that the applicant landlord along with his wife were residing at Rani Bazar and gave out the location of the house and produced photographs of the house and it was stated that in the said house he was residing at the ground floor; further defence was raised that the applicant was in possession of accommodation at the back of the suit shop in form of godowns and rooms, which can very well be converted into residential accommodation and as the applicant has not done so, the requirement was baseless; it was also alleged that two shops were lying vacant and the same could be utilised by the landlord for the purpose claimed in the application. 20. A replication was filed by the applicant-landlord, inter alia, indicating that the house at Rani Bazar belong to his deceased adopted son Naresh Kumar; the suit property was the only property, which was owned by him, he was residing at the suit premises only and on account of old age and illness he is required to go and stay with is family members at Rani Bazar, which cannot be termed as place of his residence; it was indicated that the tenants cannot force the landlord to use the particular premises for his residence and the godowns were on rent and regarding the vacant shops, it was claimed that the applicant wants to raise construction of his residential house by joining all the three shops. 21. 21. In support of the rival contentions, oral and documentary evidence was also led by the parties. 22. During the pendency of the application, wife of applicant Smt. Maina Devi died, which gave rise to a further argument to the tenant that now the requirement based on illness of applicant's wife has come to an end and the applicant being an old person cannot reside all alone at the suit premises and, therefore, the requirement has come to an end. 23. While Hon'ble Supreme Court in the case of Jai Prakash Gupta (supra) held that the subsequent events can be taken into consideration for the purpose of examining the bona fide requirement of the landlord and comparative hardship, this Court in the case of Shanti (supra) after noticing several judgments of the Apex Court on the issue held that bona fide need of the premises is required to be seen from the date of institution of the suit and subsequent events which occurred only on account of passage of time during the pendency of the eviction proceedings cannot render the requirement as non-existent. 24. 24. In the present case, the fundamental plea raised by the petitioners is that the applicant does not reside at the first floor of the suit premises and, therefore, the entire claim is wholly baseless; there does not appear to be any substance in the submissions made by the petitioners in this regard; in view of the documentary evidence available on record, wherein, the applicant has produced his family ration card (Exhibit-5), voter identity card (Exhibit-6), telephone bills (Exhibits-7 and 8), which are dated 05.10.2010 and 05.05.2010 respectively, electricity bills (Exhibits-9 to 11), which pertain to the period January, 2011, April, 2011 and May, 2011 respectively, it would be interesting to note that the telephone bills (Exhibit-7 and 8) indicate several calls during the period and the bills clearly indicate the user of the telephone; similarly the electricity bills also pertain to substantial consumption of consistent electricity for all this period and the bills also gave out the consumption for the previous and the subsequent period as well, which necessarily indicates that the premises, which are claimed by the applicant as his residential premises is in use and is being utilised by him for residence; the plea raised by the petitioners regarding the applicant having his place of residence at Rani Bazar also appears to be having apparently no basis, inasmuch as, the applicant landlord has candidly indicated that as and when the applicant and his wife are not well, they go and reside with their close family members at Rani Bazar. 25. A look at the photographs of Rani Bazar residence produced by the petitioners as Exhibit-A/12 also indicates that it bears the name plate of Naresh Kumar Agarwal and not that of the applicant; Naresh Kumar Agarwal is admittedly the adopted son of the applicant landlord, for those bona fide requirement, initially suit in the year 1977 was filed, however, the said son died; the house at Rani Bazar from the document of partition available on record as Exhibit-4 also fell in share of said Naresh Kumar and the suit premises has come to the share of the applicant landlord. 26. 26. From the fact that the applicant along with his wife were required to go and stay at Rani Bazar house i.e. the house of applicant's adopted son and when it is emphasised by counsel for the petitioners and the petitioners that at Rani Bazar the applicant-landlord resides on the ground floor, the necessity for the applicant to have a residence/place of residence at the ground floor stands fortified and there is no substance in the argument that the applicant does not require the premises for his residence on the ground floor; the Rent Tribunal was justified in coming to the conclusion that even if the age of the applicant is taken at 76 years, the complaint regarding pain in the knees, heard problem and breathing issues on climbing stars can be taken judicial notice of; the said aspect and the health problems indicated by the applicant regarding difficulty in staying on the first floor cannot be said to be baseless besides the fact that there is enough material available on record indicating the said medical issues; further, the fact that the wife of the applicant died during the pendency of the proceedings also negate the bald denial of the tenants regarding the old age of the landlord and his wife. 27. So far as the plea raised by the tenant regarding availability of accommodation at the back of the suit premises is concerned, the averments and the material available on record indicates that the alleged alternative premises are in shape of godowns and there is no evidence available on record as to whether the said godowns can be converted into residential premises. 28. Besides the above, the principle laid down by Hon'ble Supreme Court is well settled that a tenant cannot dictate the landlord that instead of getting the shop in question vacated, he should utilise other premises available to him; it is also significant to note that in the Act the issue pertaining to comparative hardship is no longer available to the tenants for denying the requirement of the landlord. 29. Learned counsel for the petitioners took the Court through the statements of the witnesses also, however, the petitioners have failed to point out any perversity in the findings recorded by the Rent Tribunal as upheld by the Appellate Rent Tribunal. 30. 29. Learned counsel for the petitioners took the Court through the statements of the witnesses also, however, the petitioners have failed to point out any perversity in the findings recorded by the Rent Tribunal as upheld by the Appellate Rent Tribunal. 30. The judgment in the case of Deena Nath (supra) is based on the requirement of provision of M.P. Rent Act, 1961, wherein, it was required of the landlord to prove that there is no other reasonably suitable non-residential accommodation of his own in his occupation in the city or town and as a fact it was found that the landlord had two other shops. 31. Besides the fact that similar provision which existed under Section 14 in the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 has already been done away in the Act of 2001, the petitioner has failed to prove that any other reasonable alternative residential accommodation is available to the landlord, as such the judgment has no application. 32. Hon'ble Supreme Court in the case of Jacky (supra) while reiterating the law laid down in the case of Shalini Shyam Shetty and Anr. v. Rajendra Shankar Patil, (2010) 8 SCC 329 and Jai Singh and Ors. v. Municipal Corporation of Delhi and Anr., (2010) 9 SCC 385 has held as under:- "17. A petition under Article 226 or Article 227 of Constitution of India can neither be entertained to decide the landlord-tenant dispute nor it is maintainable against a private individual to determine an intense dispute including the question whether one party harassing the other party. The High Court under Article 227 has the jurisdiction to ensure that all subordinate Courts as well as statutory or quasi-judicial tribunals, exercise the powers vested in them within the bounds of their authority but it was not the case of the 1st respondent that the order passed by the Munsiff Court was without any jurisdiction or was so exercised exceeding its jurisdiction. If a suit is not maintainable it was well within the jurisdiction of the High Court to decide the same in appropriate proceedings but in no case power under Article 226 and 227 of the Constitution of India can be exercised to question a plaint." 33. If a suit is not maintainable it was well within the jurisdiction of the High Court to decide the same in appropriate proceedings but in no case power under Article 226 and 227 of the Constitution of India can be exercised to question a plaint." 33. In view of the above discussion, no case for interference in the judgment and recovery certificate passed by the Rent Tribunal as upheld by the Appellate Rent Tribunal is made out. There is no substance in the writ petition and, consequently, the same is dismissed. No order as to costs.