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2016 DIGILAW 350 (ALL)

Shanker Lal v. Gayatri Devi

2016-01-27

SUNITA AGARWAL

body2016
JUDGMENT Sunita Agarwal, J. – Heard Sri Ashish Kumar Singh, learned counsel for the petitioners, Sri Manish Tandon and Sri Rakesh Pande, learned counsels for the respondents. 2. This writ petition is directed against the release order passed by the lower appellate court in Rent Appeal No. 17 of 2009. The release was filed by Rajaram who was owner of house no. 105-A, Jawahar Square, Meerganj, Allahabad. His heirs were later on substituted as applicants-landlord. They claim absolute ownership to the house no. 105-A, Jawahar Square, Meerganj, Allahabad. The petitioners-opposite parties in the release application are stated to be tenant of one shop on the ground floor of the aforesaid house on monthly rent of Rs. 200/-. It was stated in the release application that the opposite party no. 1 Shanker Lal built a commercial complex namely house no. 528/1, Nehru Nagar, Meerapur, Allahabad, wherein he was carrying on a stove factory at the basement. A portion of the house was also let out at the monthly rent of Rs. 3,000/- to one person. The opposite party no. 2 namely Arjun also built a commercial house no. 153-A, Patel Nagar, Meerapur, Allahabad, wherein he was running a Tabacco factory in the name of 'Sangam Zarda'. A factory in the name of "Lily Icecream" was also being run by the opposite party no. 2 in the same premises. A house no. 69/54, Kucha Rai Ganga Prasad, Kalyani Devi, Allahabad was inherited by the tenants/opposite parties from their father late Pyare Lal. 3. Initially the shop in question was let out to the opposite parties for Gas & Stove business but they have changed the nature of tenancy by doing electric and ornament business therein. 4. The family of late Rajaram the original landlord consists of two sons namely Vidyasagar @ Bachcha (aged about 50 years) and another son Manoj @ Lalla (aged about 40 years) at the time of filing of application. The legal heirs of Rajaram possess only one shop in the side lane of house no. 105-A, Jawahar Square, Meerganj, Allahabad which is approximately "8X6 ft.". Both his sons namely Bachcha and Lalla are doing business from one shop. This apart, two grand sons of Rajaram namely sons of Bachcha are also unemployed and the shop in question is required to settle them. 5. 105-A, Jawahar Square, Meerganj, Allahabad which is approximately "8X6 ft.". Both his sons namely Bachcha and Lalla are doing business from one shop. This apart, two grand sons of Rajaram namely sons of Bachcha are also unemployed and the shop in question is required to settle them. 5. The Prescribed Authority has rejected the release on the ground that the applicants could not establish their need much less bona fide need. They have not disclosed the nature of business which they proposed to do in the shop in question. The averments in the release application are vague and as per the contention therein, one shop is required for three persons. There is no categorical statement as to who needs the shop in question for his business. 6. This apart the opposite parties have contested the release application also on the ground that there are several shops in the same premises in which business in the name of "Sangeeta Kesharwani Jewellers", "Bachcha Prakash Bhandar", "Shiv Enterprises" and "Rahul Enterprises" are being run by the family members of the original landlord namely Rajaram. Vidyasagar @ Bachcha is also doing "Mahajani" business. 7. On comparative hardship, the findings were recorded against the landlord for the reason that the need was not found genuine. 8. In appeal, the Court below has held that there is only one shop of "6X8ft." in possession of the applicant-landlord which exist in house no. 105-A, Jawahar Square, Meerganj, Allahabad. Whereas the opposite parties possess two premises namely House No. 528-A, Nehru Nagar and 103-A, Meerapur, Allahabad wherein their business namely Stove factory, Lily Icecream and Sangam Zarda were being run. One house no. 1538/1049-A has been purchased by the opposite parties in the name of their daughter-in-law Smt. Salini Kesharwani wife of Sri Ranjeet Kesharwani. The sale deed has been brought on record as paper no. 42-C. 9. The findings of the Prescribed Authority in rejecting the release have been set aside and the need set up by the applicants-landlord for one son and two grand sons of Rajaram was found genuine. It was also found that one house at Mutthiganj belonging to the opposite parties can be used for their business in case of eviction. 10. Challenging these findings, contention of learned counsel for the petitioners is that the petitioners gave details of the alternative accommodation and business being run by the landlords in the same premises. It was also found that one house at Mutthiganj belonging to the opposite parties can be used for their business in case of eviction. 10. Challenging these findings, contention of learned counsel for the petitioners is that the petitioners gave details of the alternative accommodation and business being run by the landlords in the same premises. The Prescribed Authority recorded a categorical finding that the applicants-landlord are engaged in four other business, names of which has been disclosed by the tenant but there is no denial and hence the need was rightly found to be a mere desire to evict the tenants. 11. The appellate Court without upsetting this finding of the Prescribed Authority has erred in coming to the conclusion that there is no other alternative shop in possession of the applicants-landlord. The categorical finding recorded by the Prescribed Authority has not even been touched. 12. On the other hand, learned counsel for the respondent submits that the appellate court after consideration of the other commercial accommodation in possession of the tenant has come to the conclusion that the landlords need the shop and the tenants will not suffer any hardship. The release order passed by the appellate court is perfectly justified and requires no interference. 13. Having heard learned counsel for the parties and perused the record. The record reflects that both the courts below have not examined the rival assertions of both the parties that they are in possession of different commercial accommodations. There are counter allegations by the applicants-landlord and the opposite parties in this regard. Without going through the details of this contest, the Prescribed Authority could not have rejected the release or the appellate court could not have allowed it. There is perversity in the findings recorded by both the courts below. 14. From a perusal of these findings, it cannot be concluded that the applicant-landlord namely Vidyasagar @ Bachcha or his two sons are doing other business or in possession of alternative shops for their need. It is also difficult to accept that the opposite parties also possess alternative accommodation and therefore, would not suffer any hardship, in case, the release is allowed. 15. So far as the need set up in the release application is concerned, there is no ambiguity. It is also difficult to accept that the opposite parties also possess alternative accommodation and therefore, would not suffer any hardship, in case, the release is allowed. 15. So far as the need set up in the release application is concerned, there is no ambiguity. A categorical statement has been made that two brothers namely Vidyasagar @ Bachcha and Manoj Kumar @ Lalla are occupying only one shop which exits in house no. 105-A, Jawahar Square, Meerganj, Allahabad and they want to separate. The shop in question is also needed for two sons of Vidyasagar @ Bachcha grand sons of Rajaram, who are unemployed. 16. These facts stated in the release have been ignored by the Prescribed Authority while coming to the conclusion that the need in the release application is not specific. In paragraph 20' of the affidavit filed in support of the release application, it is stated by the deponent Vidyasagar that he along with his three sons and brother Manoj Kumar @ Lalla sits in one shop. This fact has not been examined by the Prescribed Authority before rejecting the release. 17. However, the appellate court also committed a grave error of law in allowing the release without upsetting the finding of the Prescribed Authority that these are other business of the applicants-landlord which are being run in the same premises. 18. As there is no categorical finding on this issue, therefore, this Court finds it fit that the matter be remitted for fresh consideration on both the questions of bona fide need and comparative hardship. 19. The finding on bona fide need has to be recorded after consideration of the statement of the landlord that only one shop in house no. 105-A, Jawahar Square, Meerganj, Allahabad exists in his possession and the counter allegations of the opposite parties-tenant that the landlord possess other shops in the same premises in which the business in the name of Sangeeta Kesharwani Jewellers, Bachcha Prakash Bhandar, Shiv Enterprises and Rahul Enterprises are being run by the applicants. 20. It goes without saying that the findings on comparative hardship shall be recorded after consideration of the assertion of the landlord that the opposite parties-tenant are in possession of other commercial accommodations in the city. 21. In view of the discussion, the finding of the Prescribed Authority in rejecting the release are also found perverse and cannot be sustained. 22. It goes without saying that the findings on comparative hardship shall be recorded after consideration of the assertion of the landlord that the opposite parties-tenant are in possession of other commercial accommodations in the city. 21. In view of the discussion, the finding of the Prescribed Authority in rejecting the release are also found perverse and cannot be sustained. 22. However, since the matter is quite old as the release application has been filed 12 years back i.e. in the year 2003, therefore, remittal to the Prescribed Authority for recording fresh finding would further delay the proceeding. 23. The matter is, therefore, being sent to the appellate court to record fresh finding on both the questions namely bona fide need and comparative hardship. 24. The judgment and order dated 4.3.2014 passed by the Additional District Judge, Court No. 12, Allahabad in Rent Control Appeal No. 17 of 2009 is, therefore, set aside. 25. As 12 years have passed, therefore, the subsequent events, if any, may also be brought on record which shall be considered by the lower appellate Court while recording its finding. 26. The lower appellate court shall return the finding within a period of three months from the date a certified copy of this order is produced before it, after giving due opportunity to both the parties to lead their additional evidence, if any. 27. It is made clear that no unnecessary adjourments will be granted to either of the parties. In case of any such adjournment, heavy cost shall be imposed by the lower appellate court. 28. With the above observations and directions, the writ petition is allowed. Petition allowed.