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2016 DIGILAW 2434 (ALL)

Mohd. Idris v. Naresh Goyal

2016-07-13

PANKAJ MITHAL

body2016
JUDGMENT Pankaj Mithal, J. – Heard Sri Manas Bhargav along with Sri Zaid Arshad, learned counsel for the petitioner and Sri N.K. Srivastava, learned counsel for the respondent. 2. The petitioner is a tenant of a shop No.8B, situate in Durga Nagar opposite Gandhi Ashram, Meerut. The aforesaid shop belongs to the respondent and he is the owner and landlord of the same. 3. The respondent landlord applied under Section 21(1)(a) of the U.P. Act No.13 of 1972 (hereinafter referred to as the Act) for the release of the aforesaid shop on the ground that he is doing mobile business in the adjoining shop No.7 but that is too small and that for the expansion of his business, a mobile service center is also necessary and that he will utilise both the shops for his mobile business. 4. The release application was contested by the petitioner tenant on the ground that the respondent landlord is a rich person having large number of properties. His need for the shop in dispute is not bona fide. He is not doing any business from the adjoining shop and the same more or less remains closed. 5. The release application was allowed vide judgment and order dated 19.07.2014 passed by the prescribed authority and the appeal preferred by the petitioner tenant against it was dismissed on 03.11.2015 by the Additional District Judge. 6. Against the aforesaid judgments and orders the petitioner tenant has preferred this petition under Article 226 of the Constitution of India. 7. Sri Manas Bhargav, has argued that the prescribed authority failed to consider the commission report paper No.54Ga(2) in deciding about the bona fide need of the respondent landlord. The appellate authority has simply referred to it but without considering its impact upon the need of the respondent landlord has affirmed the order of prescribed authority. The need of the respondent landlord is not bona fide and the finding of the courts below on this aspect of the matter is very cursory in nature uninformed by reasons. Thirdly, the courts have not considered the provisions of Rule 16(2)(c) of the Rules framed under the Act. 8. Sri N.K. Srivastava, learned counsel appearing for the respondent landlord submits that the two judgments of the courts below are well considered. The commission report is not material and it does not in any way helps the petitioner. Thirdly, the courts have not considered the provisions of Rule 16(2)(c) of the Rules framed under the Act. 8. Sri N.K. Srivastava, learned counsel appearing for the respondent landlord submits that the two judgments of the courts below are well considered. The commission report is not material and it does not in any way helps the petitioner. The finding on the bona fide is a finding of fact cannot be disturbed in writ jurisdiction. The petitioner tenant had not argued about the benefit available under Rule 16(2)(c) of the Rules framed under the Act in either of the courts below. 9. I have perused the pleadings of the parties and considered the impugned judgments. 10. The respondent landlord in the release application filed as annexure-2 to the writ petition in paragraph 4 and 5 has clearly stated that he is doing mobile business from the adjoining shop and that he has several agencies/franchise for the sale of the mobile handsets. He is carrying out the said business from the shop adjoining to the shop in dispute. The mobile business requires a mobile service center and for establishing it he requires both the shops for doing his business in more lucrative manner. He need the shop in dispute for the establishment of the mobile show room and mobile service center and his need in this regard is genuine and bona fide. 11. The petitioner tenant in the written statement has stated that his alleged mobile shop most of the time remains closed and that he is not doing any business from it. Besides the above he has a vacant plot of 140 sq. yards behind the shop in dispute. 12. On the basis of the above pleadings and the evidence adduced by the parties the trial court returned a finding that the respondent landlord is doing business of mobile from the adjoining shop and that his need for the disputed shop is genuine and bona fide for establishing a mobile service centre. 13. The appellate court in affirming the above findings referred to Amin report paper No.44 Ga and recorded a further finding that it establishes that the respondent landlord is doing mobile business from the adjoining shop. The report of the Amin does not prove that no business is being transacted from the adjoining shop. 14. 13. The appellate court in affirming the above findings referred to Amin report paper No.44 Ga and recorded a further finding that it establishes that the respondent landlord is doing mobile business from the adjoining shop. The report of the Amin does not prove that no business is being transacted from the adjoining shop. 14. In view of the aforesaid facts and circumstances and the finding as returned by the two courts it cannot be said by any stretch of imagination and finding of bona fide need is uninformed by reasons. 15. The aforesaid findings also do not stand vitiated for want of non-consideration of the commission report which in fact has been dealt with by the appellate court. The commission report has been filed by the petitioner tenant as part of the supplementary affidavit. The said report reveals that there are only two shops in existence. One is in occupation of the respondent landlord and the other is the shop in dispute in possession of the petitioner tenant. The report clearly reveals that from the adjoining shop respondent landlord is doing business and that the land behind the shops is a vacant piece of land. There are no constructions on it and it cannot be used for any business purpose. The above report in no way helps the petitioner tenant. 16. In view of above, it cannot be said that the report has not been considered or even if not considered the judgments and order of the courts below would stand vitiated. 17. In such circumstances, the argument that the courts below have failed to consider the commission report has no force and is rejected. 18. As far as Rule 16 (2)(c) of the Rules framed under the Act it provides that while considering the application for release under Section 21 of the Act for the purposes of business, the court shall have regard to certain facts namely that the prescribed authority may on the application of the tenant impose a condition that the landlord shall let out the tenant, the accommodation available with him which is not suitable for his own business but which may serve the purpose of the tenant on a fair rent to be fixed by the prescribed authority. 19. 19. The aforesaid condition does not gets attracted in the instant case inasmuch as the petitioner tenant has not moved any application to the above effect and secondly there is no evidence to establish that the respondent landlord has any other accommodation suitable for business purpose available with him which otherwise is not suitable for his own business but can serve that of the petitioner tenant. 20. In these circumstances the argument regarding Rule 16 (2)(c) of the Rules framed under the Act is completely misconceived and is not tenable. 21. In the end learned counsel for the petitioner tenant requests that some fair and reasonable time may be allowed for vacating the shop in dispute. 22. The request thought opposed by Sri Srivastava, learned counsel for the respondent landlord but in the interest of justice, the court considers it appropriate to allow four months time to the petitioner tenant to vacate the shop in dispute provided he gives an undertaking to the prescribed on affidavit within a period of two weeks that he will vacate and handover peaceful possession of the shop in dispute within the time allowed and clear all outstanding dues if any. 23. The writ petition is dismissed with the above liberty. Petition dismissed.