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2016 DIGILAW 349 (ALL)

Satish Agrawal v. Krishna Murari

2016-01-27

SUNITA AGRAWAL

body2016
JUDGMENT Sunita Agrawal, J. – Heard Sri A.P. Srivastava, learned counsel for the petitioners and Sri Ramendra Asthana, learned counsel for the respondent. 2. This writ petition is directed against the order of release dated 12.3.2014 passed in P.A. Case No. 49 of 2010 (Krishna Murari v. Satish Agrawal and another)and the judgment and order dated 29.7.2015 passed in Rent Control Appeal No. 40 of 2014. 3. The property in dispute is shop no. 86/10 measuring "14ft. X 6.3ft." abutting road at the ground floor of House No. 85/7, Sultanpura, Agra Cantt., Agra. The respondent-landlord filed a release application under Section 21(1)(a) of U.P. Act No. 13 of 1972 on 9th August, 2010 with the assertion that he is landlord and owner of the shop no. 86/10. The petitioner no. 1 i.e. Satish Agrawal was inducted as tenant on a monthly rent @ Rs. 475/- per month besides water tax @ 14% per annum in the year 1999. The petitioner no. 1 Satish Agrawal is running his business in the name and style of "M/s. Maharaja Gift Centre" in a shop existing in his own house and he has delivered possession of the shop in question to petitioner no. 2 Mohan Kumar Agrawal (his brother), who is doing his business under the name and style of "M/s. Mohan General Store". 4. The shop in question is required to establish three sons of the landlord and is urgently needed to settle his one son Sumit who is a mobile repair mechanic. 5. As per statement in paragraph 8' of the release application, three adult sons of the landlord and the landlord himself required the shop in question. The release was contested by the petitioners on the ground that the tenancy of the shop in question was initially in the name of their father Ram Charan Lal Agrawal who was running his business in two adjacent shops. The shop in question i.e. shop no. 86/10 was inherited by his son Mohan Kumar Agarwal and the adjacent shop no. 86/9 is now in possession of Sri Radhey Shyam and Mohan Kumar Agrawal wherein they are carrying on their business with the support of the petitioner no. 1. The shop in question i.e. shop no. 86/10 was inherited by his son Mohan Kumar Agarwal and the adjacent shop no. 86/9 is now in possession of Sri Radhey Shyam and Mohan Kumar Agrawal wherein they are carrying on their business with the support of the petitioner no. 1. After death of Ram Charan Lal Agrawal, in a family partition the shop in question came in the share of the petitioners and they are running their business in both the shops and under the name of style of "M/s Mohan General Store". 6. In view of some dispute between the sons of late Ram Charan Lal Agrawal, two rent receipts were issued by the landlord whereas the fact remains that the petitioners are co-tenants of the shop in question. The version of the applicant-landlord that the petitioner no. 1 Satish Agrawal is tenant and petitioner no. 2 Mohan Kumar Agrawal is his sub-tenant, is incorrect. The rent receipts though issued in the name of Satish Agrawal but the rent was always paid by petitioner no. 2 Mohan Kumar Agrawal who put his signatures on the counter foil of the rent receipts. 7. The rent receipts of shop no. 86/9, the adjacent shop @ Rs. 20/- per month issued in the name of Ram Charan Lal Agrawal as tenant have been brought on record in support of this contention. However, the rent receipts @ Rs. 475/- of the shop in question i.e. shop no. 86/10 are in the name of Satish Agrawal, the petitioner no. 1. 8. An affidavit dated 9.1.2013 was filed by the respondent-landlord to reiterate that the shop no. 86/10 (the shop in question) was given on rent to Sri Satish Agrawal and the rent receipts from 1.2.1999 to 31.3.1999 issued by the respondent-landlord Krishna Murari have been filed to establish that Satish Agrawal was inducted as tenant in the year 1999. The rent receipts in the name of previous tenant Jagdish Prasad of the shop no. 86/10 for the year 1998 were also filed to establish that before induction of petitioner no. 1 Satish Agrawal, the tenant of the shop in question was Jagdish Prasad. The shop no. 86/10 was never in tenancy of Satish Agrawal or his father Ram Charan Agrawal prior to the year 1999. 9. The Prescribed Authority after perusal of these evidences decided issue no. 1 in favour of the respondent-landlord. 1 Satish Agrawal, the tenant of the shop in question was Jagdish Prasad. The shop no. 86/10 was never in tenancy of Satish Agrawal or his father Ram Charan Agrawal prior to the year 1999. 9. The Prescribed Authority after perusal of these evidences decided issue no. 1 in favour of the respondent-landlord. On the basis of paper no. 31-Ga, the document of partition between the family members of the original landlord Darshan Lal and paper no. 39-Ga, the original extract of Municipal Assessment Record, it was found that the shop in question came in the share of respondent-landlord on account of a family partition between the heirs of Darshan Lal i.e. the original landlord. Two rent receipts of shop no. 86/10 are in the name of Satish Agarwal and the rent deed dated 26.2.1999 establishes that the petitioner no. 1 Satish Agrawal was inducted on 26.2.1999 as a tenant in the shop no. 86/10 which is in dispute. 10. So far as the assertion of the petitioners that their father Ram Charan Lal Agrawal was tenant of the shop no. 86/10 the shop in question, it was found that the documents on record do not prove this fact rather the documents in the name of Ram Charan Lal Agrawal pertain to shop no. 86/9 i.e. the adjacent shop. 11. A compromise has been arrived in O.S. No. 277/77 which is paper no. 46-Ga between Darshan Lal, the father of the respondent-landlord and Ram Charan Lal Agrawal, the father of the petitioners which was with respect to the shop no. 86/09 i.e. the adjacent shop. 12. It was recorded that the landlord tenant relationship exist between the applicant and the petitioner no. 1 Satish Agrawal whereas the petitioner no. 2 Mohan Kumar Agrawal is sub-tenant of petitioner no. 1. 13. On the bona fide need, it was found that three sons of the landlord were unemployed and looking to the need of the family, the shop in question is required for the business proposed by the landlord. There is no other shop in possession of the landlord to establish his sons. 14. On comparative hardship, it was found that the petitioner no. 1 is doing business in the name and style of "M/s. Maharaja Gift Centre" in a property no. 93, Sultanpura, Agra. This shop is being run since the year 2008-09. There is no other shop in possession of the landlord to establish his sons. 14. On comparative hardship, it was found that the petitioner no. 1 is doing business in the name and style of "M/s. Maharaja Gift Centre" in a property no. 93, Sultanpura, Agra. This shop is being run since the year 2008-09. As the tenant has an alternative place of business, hence the shop in question was released for the personal need of the landlord. 15. The Appellate Authority while affirming the order of release also recorded its independent finding that since the rent receipts of the shop in question are in the name of Satish Agrawal and as such it cannot be accepted that the shop in question was in the tenancy of father of the petitioners namely Ram Charan Agrawal. The Prescribed Authority had rightly decided issue no. 1 regarding the landlord-tenant relationship. 16. On the bona fide need and comparative hardship, it was recorded by the appellate court that the respondent-landlord has no other place for settling his sons and the tenant is in possession of an alternative shop in which he is carrying on his business, he will not suffer any hardship in case of eviction. 17. Challenging these findings, learned counsel for the petitioner vehemently submits that the courts below had erred in holding that the shop in question was in tenancy of Satish Agrawal and the petitioner no. 2 Mohan Kumar Agrawal is his sub-tenant. In fact it was a single tenancy of two adjacent shops namely shop nos. 86/9 and 86/10. Two separate release applications have been filed for two shops. For shop no. 86/9 Smt. Guddi Devi filed P.A. Case No. 50 of 2010 against Radhey Shyam and Mohan Kumar Agrawal claiming herself to be the owner. Whereas for shop no. 86/10, P.A. case No. 49/10 has been filed by Sri Krishna Murari the respondent landlord against petitioners Satish Agarwal and Mohan Kumar Agrawal. 18. Two separate release applications for two shops under a single tenancy could not be maintained by different landlords. There cannot be a partial release of the shop in question. The original tenant of the shop in question i.e. shop no. 86/10 with the adjacent shop no. 86/9 was Ram Charan Agrawal. His three sons namely Satish Agrawal, Radhey Shayam and Mohan Kumar Agrawal became joint tenants after his death. There cannot be a partial release of the shop in question. The original tenant of the shop in question i.e. shop no. 86/10 with the adjacent shop no. 86/9 was Ram Charan Agrawal. His three sons namely Satish Agrawal, Radhey Shayam and Mohan Kumar Agrawal became joint tenants after his death. They are in possession of the shop in question and Mohan Lal is carrying on his business under the name and style of "M/s. Mohan General Store" in both the shops namely shop nos. 86/9 and 86/10. 19. The assertion of the respondent-landlord Krishna Murari that a new tenancy was created in the year 1999 is absolutely false. 20. This apart one shop no. 86/13 situated in the same vicinity was purchased by the landlord on 8.6.2015 during the pendency of the appeal and therefore, the need of the landlord as set up in the release application stood satisfied. The appellate court had erred in ignoring the subsequent event which was brought on record. 21. On comparative hardship, it is asserted that the hardship of the tenant Mohan Kumar Agrawal who is actually occupying the shop in question i.e. 86/10 has not been considered at all and hence these findings cannot be sustained. 22. In support of his submissions, the judgments of this Court and the Apex Court have been relied upon to submit that the joint tenancy unit is not divisible. There is no compliance of Rule 22(e) of U.P. Act No. 13 of 1972 which implies that as far as possible the release matters should be consolidated and decided together. 23. Two judgments of Apex Court in Jai Prakash Gupta v. Riyaz Ahmad, SLP No. 5627 of 2008 (SC) Page 21, 23 and Mohd. Smile v. Dinkar Vinayak Aksar & Others, SLP No. 1489 of 2007 (SC) Pages 14, 15, 16 and the judgment of this Court in Mohan Lal v. ADJ Gorakhpur (HC) Alld. C.M.W.P. No. 64278 of 2008, paragraph 9, 10, 11, 12, 13, 14 and 15 have been relied upon to submit that the courts cannot ignore the subsequent events while examining the need of the landlord set up in the release application. 24. C.M.W.P. No. 64278 of 2008, paragraph 9, 10, 11, 12, 13, 14 and 15 have been relied upon to submit that the courts cannot ignore the subsequent events while examining the need of the landlord set up in the release application. 24. On comparative hardship for non-compliance of Rule 16(2)(a)(b)(c) of U.P. Act No. 13 of 1972, a judgment of this Court in Devi Shanker Yagnik and others v. IInd Additional District Judge, Aligarh and others, C.M.W.P. No. 16204 of 2000, has been relied upon. 25. On the other hand, learned counsel for the respondent-landlord submits that the records do indicate that the tenancy of the shop in question i.e. shop no. 86/10 was never in the name of Ram Charan Agrawal rather it was a new tenancy created in the year 1999 in the name of Satish Agrawal by the respondent-landlord Krishna Murari. The shop in which the father of the petitioners namely Ram Charan Lal Agrawal inducted by the father of the respondent-landlord namely Darshan Lal was in fact shop no. 86/9. It was a separate tenancy created at a different point of time and therefore, there was no question of consolidating P.A. Case No. 49/10 and P.A. Case No. 50 of 2010. The release applications have been filed against different tenants by different landlords. Merely because the shops are adjacent to each other and are being occupied by one person namely Mohan Kumar Agrawal who is carrying on his business in the name of M/s. Mohan General Store, it cannot be said that it was a joint tenancy of two shops namely shop nos. 86/9 and 86/10. Two separate release applications were perfectly maintainable. 26. So far as the subsequent event is concerned, it is asserted that the same would not have any bearing upon the need of the landlord inasmuch as it is categorically stated in the release application that the three sons of the landlord are unemployed and he needed the shop in question for his one son namely Sumit. There is nothing on record to indicate that in the shop no. 86/13 which was purchased by the landlord during pendency of the appeal Sumit, whose need has been set up, is carrying on his business. 27. Heard learned counsel for the parties and perused the record. The documents on record are the rent deed dated 26.2.1999, the document of family partition namely paper no. 86/13 which was purchased by the landlord during pendency of the appeal Sumit, whose need has been set up, is carrying on his business. 27. Heard learned counsel for the parties and perused the record. The documents on record are the rent deed dated 26.2.1999, the document of family partition namely paper no. 31-Ga along with map of the property, rent receipts in the name of respondent-landlord Krishna Murari, the documents of Municipal Assessment of the shop in question namely shop no. 86/10 Sultanpura, Agra. These documents have been examined by both the courts below and on the basis of rent deed dated 26.2.1999, it was found that the shop in question namely 86/10 was given on rent to Satish Agrawal, the petitioner no. 1 on 26.2.1999. There is no other documents to establish that this shop was under tenancy of father of the petitioners namely Ram Charan Agrawal. The shop in question which was in tenancy of father of the petitioner Ram Charan Agrawal is shop no. 86/9, which is established from the Compromise paper no. 49-Ga filed in original suit no. 277/77. This compromise has been arrived between the father of the respondent-landlord namely Darshan Lal and father of the petitioners-tenants namely Ram Charan Lal Agrawal. The petitioners could not dispute that the shop in question namely 86/10 came in the share of respondent-landlord Krishna Murari on account of family partition which was brought on record. 28. In view thereof, the contention of the learned counsel for the petitioners that there was one tenancy of two shops namely 86/9 and 86/10, is not acceptable. The finding of fact recorded by the Courts below on issue no. 1, the nature of tenancy of the shop in question is based on the evidence on record. No perversity is found and hence no interference is required. 29. On the bona fide need, both the courts below have recorded that the landlord's son is not doing any business. There are three adult sons of the landlord who were unemployed. The need for one son was found genuine and pressing. 30. On comparative hardship, it was categorically recorded that the tenant namely Satish Agrawal i.e. the petitioner no. 1 is doing his independent business in the name and style of "Maharaja Gift Centre" in shop no. 93, Sultanpura, Agra which is his own shop. The need for one son was found genuine and pressing. 30. On comparative hardship, it was categorically recorded that the tenant namely Satish Agrawal i.e. the petitioner no. 1 is doing his independent business in the name and style of "Maharaja Gift Centre" in shop no. 93, Sultanpura, Agra which is his own shop. There is no question of consideration of comparative hardship of Mohan Kumar Agarwal the petitioner no. 2 who is not the actual tenant of the shop in question i.e. shop no. 86/10. 31. The finding on comparative hardship recorded by the Courts below cannot be interfered on the plea that likely hardship of Mohan Kumar Agarwal has not been considered. 32. So far as the factum of purchase of one shop namely 86/13 by the respondent-landlord is concerned, the same has no bearing on the need set up by the landlord in the release application. The record reflects that there are three adult sons of the landlord who are unemployed. The shop in question is required for one son Sumit Kumar. There is nothing on record to prove that other sons of the landlord are also doing their business. Even otherwise, the tenant is occupying his own shop and is carrying on his business therein. He is not doing any business in the shop in question rather he had inducted his brother. The brother of the tenant does not within the meaning of the 'family' and therefore, occupation of shop by brother of the tenant is illegal. The petitioners, therefore, cannot contest the release on the ground that the landlord had acquired one more shop during the pendency of the release. The need set up in the release application by the respondent-landlord cannot be said to have eclipsed with the purchase of this shop. 33. Other grounds of challenge to the orders of release are not required to be sifted in view of the conclusion that two adjacent shops namely shop nos. 86/9 and 86/10 were given on rent by different landlords to different tenants who may be brothers in relation. 34. In view of the discussion made above, the judgment relied upon by learned counsel for the petitioners are of no help to him. 35. In the totality of the facts and circumstances of the case, no interference is required in the orders of release passed by two courts below. 36. 34. In view of the discussion made above, the judgment relied upon by learned counsel for the petitioners are of no help to him. 35. In the totality of the facts and circumstances of the case, no interference is required in the orders of release passed by two courts below. 36. There is no merit in the writ petition, hence dismissed. 37. Lastly, learned counsel for the petitioners submits that the petitioner may be provided a reasonable time to vacate the shop in question. Admittedly, the petitioner no. 1 the actual tenant is not occupying the shop in question. The occupation of petitioner no. 2 has been found illegal. 38. However, in order to give them some time to remove their belongings, if any, it is provided that : - (1) The petitioner no. 1 shall file an undertaking before the Court below within four weeks' that he shall hand over the vacant possession of the shop in question namely shop no. 86/10 measuring "14 ft.X6.3 ft." existing at the ground floor of property no. 85/7 Sultanpura, Agar Cantt, Agra on or before 1st August, 2016. (2) In case of failure on the part of the petitioner no. 1 to furnish the undertaking or vacate the shop in question within the time given above, appropriate proceedings for his eviction may be initiated. Petition dismissed.