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2016 DIGILAW 658 (ALL)

SURESH PRASAD v. ADDITIONAL DISTRICT JUDGE

2016-02-24

SUNITA AGARWAL

body2016
JUDGMENT Hon’ble Mrs. Sunita Agarwal, J.—Heard Sri H.N. Singh, learned counsel for the petitioner and Sri Siddharth Nandan, learned counsel for the respondents. 2. This is the tenant’s petition challenging the order of release of the shop situated on the ground floor of the building at Miyan Bazar, South Gate, Kotwali Road, Gorakhpur owned by respondent No. 3. 3. The release application under Section 21(1)(a) of U.P. Act No. 13 of 1972 (hereinafter referred to as ‘the Act’), has been filed by the landlord on the ground that the shop in question is needed for his son Manish Srivastava, who is unemployed. It is also stated that the landlord had retired from the post of Senior Assistant, District Supply Office, Gorakhpur in the year 2007, he would assist his son. His elder son Manish was earlier preparing for the competitive examinations and had taken a temporary job in HDFC Bank, Gorakhpur as a Sales Executive in December 2006. However, he had to resign in compelling circumstances in the month of November 2007. He again took a job in November 2007 in IDBI Bank, Gorakhpur which he had to leave in August 2008. Since thereafter, he is sitting idle and has lost hope of getting a decent job. 4. Now, he wants to start a business of electric fittings in the shop in question as it is the most suitable place for the business proposed. 5. The tenant got constructed a commercial-cum-residential complex at a short distance from the shop in question and as such he would not suffer any hardship, in case, the shop in question is released. 6. The release was contested by the tenant and a specific stand has been taken in the written statement that in the shop marked by letter “P” (shown in the map appended to the written statement) (hereinafter referred to as Shop “P”), initially, somewhere around the year 1996-97, Manish Srivastava, son of the landlord was doing business in the name of “Manish Provision Stores”. He continued this business till the year 2008 and, thereafter, electric business in the name of “Abhishek Electricals” was started in the same shop “P” which was also being carried on by the elder son of the landlord namely Manish Srivastava. The said shop namely Shop “P” is still in occupation of Manish Srivastava. He continued this business till the year 2008 and, thereafter, electric business in the name of “Abhishek Electricals” was started in the same shop “P” which was also being carried on by the elder son of the landlord namely Manish Srivastava. The said shop namely Shop “P” is still in occupation of Manish Srivastava. The contention of the landlord that his son is sitting idle is incorrect and he does not require the shop in question. 7. So far as another son of the landlord namely Abhishek Kumar Srivastava is concerned, he is working as a Sales Manager in M/S Mahendra Company and is getting good salary. 8. In rejoinder, the landlord averred that Manish Srivastava, his elder son though started business of provision store and later on of electric goods in Shop “P” as submitted by the tenant but he had to close these business. The electric goods business which was started in the year 2003 could not be continued on account of losses suffered by Manish Srivastava and somehow he had managed to repay the loans. In paragraph ‘13’ of the rejoinder-affidavit, it is stated that shop “P” has been given on rent to one Gopal Kumar Gupta and is in his possession w.e.f. 1.10.2005 at a monthly rent of Rs. 1500 p.m/-. A written deed dated 17.1.2006 has been executed in this regard. The business of sale of electric fans and spare parts in Shop “P” is being run by Sri Gopal Kumar Gupta and it is not in the vacant possession of the landlord. 9. It appears that after exchange of affidavits, during the course of arguments before the Courts below, the tenant kept on insisting that the Shop “P” is not in occupation of the alleged tenant Gopal Kumar Gupta rather Manish Srivastava, the son of the landlord is doing his electrical goods business therein. 10. It appears that certain rent receipts were filed by the landlord to establish that Gopal Kumar Gupta was the sitting tenant in shop “P” but an objection was raised during the course of arguments that the rent receipts were of the period after filing of the release application. The argument of the tenant regarding availability of another shop namely Shop “P” has been rejected by the Courts below on the ground that the tenant could not bring evidence to prove that Gopal Kumar Gupta was not occupying Shop “P”. The argument of the tenant regarding availability of another shop namely Shop “P” has been rejected by the Courts below on the ground that the tenant could not bring evidence to prove that Gopal Kumar Gupta was not occupying Shop “P”. 11. The Appellate Court, however, has not recorded any finding on this issue. It has considered the need of the landlord and recorded that his son could not continue in service and was forced to resign, and was unemployed at the time of filing of the release application. No exception could be taken to the genuineness of the need of the landlord for his son Manish Srivastava. After consideration of various judgments on the point that the landlord is the best judge of his own choice and the tenant cannot dictate his terms, he has complete freedom to decide his need and to choose as to which of the shop is best suited to him, the need was held bona fide. It was held that there was nothing on record to show that the son of the landlord was carrying on an independent business. The need to start a business could not be rejected on the ground that the son of the landlord had taken temporary employment for some time. Even the landlord, wanted to start his business after retirement and his need could not be said to be imaginary. Letting a shop prior to filing of the release application did not mitigate the need. 12. It was further found that the tenant has not been able to establish that since the date of filing of the release application till date, an alternative shop was available to the landlord for his need. 13. On comparative hardship, both the Courts below have recorded that the wife of the tenant got constructed a commercial complex in which she has let out several shops and is also conducting wholesale business of medicine and as such the comparative hardship also tilts in favour of the landlord. 14. Challenging these findings, the contention of learned counsel for the petitioner is that a specific pleading has been taken in the written statement by the tenant that the landlord is in possession of alternative shop namely Shop “P” in which Manish Srivastava was doing his business. 14. Challenging these findings, the contention of learned counsel for the petitioner is that a specific pleading has been taken in the written statement by the tenant that the landlord is in possession of alternative shop namely Shop “P” in which Manish Srivastava was doing his business. Gopal Kumar Gupta, has only been projected as tenant by the landlord in order to assert that the Shop “P” was not available to him on the date of filing of the release application. The Shop “P” is actually not in the tenancy of Gopal Kumar Gupta, rather is in vacant possession of the landlord. No documentary evidence has been brought before the Court below by the landlord to establish his contention. The landlord was under obligation to establish the facts stated by him in the rejoinder-affidavit filed in rebuttal of the assertion of the tenant regarding availability of the vacant shop in his possession. The Prescribed Authority has erred in rejecting this contention on the ground that the petitioner-tenant could not prove by leading evidence that the Shop “P” was vacant. As far as the Appellate Court is concerned, it has not recorded any finding on this issue rather believed the averments of the landlord in the rejoinder-affidavit. 15. The release application is not bona fide and further that the landlord has not come with clean hands before the Courts below and, therefore, his need is frustrated. 16. In alternative, argument of the learned counsel for the petitioner is that even if the averment of the landlord is accepted that shop “P” was given on rent to Gopal Kumar Gupta in the year 2005, it is a case of deemed tenancy. The tenancy of Gopal Kumar Gupta is void ab initio inasmuch as the said shop was given on rent to Gopal Kumar Gupta without an allotment order. 17. Elaborating his submission, referring to Sections 11, 12, 13 and 15 of the Act, he submits that there is a prohibition on letting without allotment order and in case, a tenant is inducted into a building without following the provisions of the Act, he is not entitled for any protection. The landlord could not have given Shop “P” on rent in the year 2005 and moreover, Section 15 of the Act itself casts an obligation upon the landlord to intimate the vacancy to the District Magistrate. The landlord could not have given Shop “P” on rent in the year 2005 and moreover, Section 15 of the Act itself casts an obligation upon the landlord to intimate the vacancy to the District Magistrate. The landlord has violated the provisions of the Act and he should be punished under Section 31 of the Act. The tenancy of Gopal Kumar Gupta being void ab initio, the Shop “P” could have been released in favour of the landlord, in case, the vacancy is intimated to the District Magistrate. In that eventuality, even the alleged tenant would not be there to contest the release application or the need of the landlord. The Shop “P” can very well be occupied by the landlord after getting it released. 18. He vehemently argued that this question raised before this Court is required to be examined in order to look into the genuineness of the need set up by the landlord. The petitioner is a sitting tenant protected by the Rent Control Act till he is evicted in accordance with law. Another tenant Gopal Kumar Gupta, cannot win over the petitioner inasmuch as he is an unauthorized occupant. The petitioner cannot be evicted in a case where the landlord has committed illegality in giving another shop on rent without an allotment order. There is a restriction on occupation of a building without allotment or release and Gopal Kumar Gupta cannot be allowed to occupy the Shop “p”. The Rent Control Act is meant for protection of a tenant who is inducted legally and is not meant for the protection of an unauthorized occupant. The petitioner is protected by the beneficial provisions as contained in the Rent Control Act inasmuch as the landlord has chosen a legally inducted tenant as against an unauthorized occupant and, therefore, the entire exercise undertaken by the Courts below is liable to be held illegal. The landlord is not entitled to claim for recovery of possession of the shop which has been let out to the tenant much earlier in time. 19. On the issue of comparative hardship, the learned counsel for the petitioner has not challenged the findings recorded by the Courts below. The fact that the tenant’s wife has constructed a commercial complex and is running a wholesale medicine shop therein is not disputed. 19. On the issue of comparative hardship, the learned counsel for the petitioner has not challenged the findings recorded by the Courts below. The fact that the tenant’s wife has constructed a commercial complex and is running a wholesale medicine shop therein is not disputed. However, the submission is that the occupation of a non-residential accommodation by the tenant would be a question relevant only while looking to the comparative hardship of the landlord and the tenant. The landlord cannot say that merely because the tenant has acquired another accommodation or has started his business elsewhere, eviction order is to be passed. 20. In a proceeding under Section 21(1)(a) of the Act in order to evict the tenant the landlord has to win on both counts i.e. bona fide need and comparative hardship. The question of need is to be considered first by the Rent Controller Authority and an independent finding has to be arrived at, only thereafter, the question of comparative hardship would arise for consideration. The landlord has to establish his need that too bona fide by leading cogent evidence. There cannot be any presumption in his favour on this question merely because the tenant has acquired another non-residential accommodation. 21. Sri Siddharth Nandan, learned counsel for the respondent would rather submit that admitted facts of the case are that elder son of the landlord namely Manish Srivastava had closed his “Provision Store” business in the year 2008. Thereafter, he tried his luck but could not continue in the jobs undertaken by him. After resignation, he had no option but to start a business. The shop “P” in which business in the name of “Manish Provision Stores” was being run is now not in vacant state. It was given on rent in the year 2005 to one Gopal Kumar Gupta who is doing his electricity business therein. 22. He submits that the contention of the petitioner that Gopal Kumar Gupta is an unauthorized occupant or is only a proxy projected by the landlord to show that the shop “P” is not in his vacant possession, is incorrect. There is no material on record to establish the submissions in this regard. 23. 22. He submits that the contention of the petitioner that Gopal Kumar Gupta is an unauthorized occupant or is only a proxy projected by the landlord to show that the shop “P” is not in his vacant possession, is incorrect. There is no material on record to establish the submissions in this regard. 23. On the arguments on the nature of tenancy of Gopal Kumar Gupta, submission is that in a release matter under Section 21(1)(a), the Court is to determine as to whether there was another place available to the landlord in vacant state on the date of filing of the release application to satisfy his need. The nature of tenancy of other occupant is an irrelevant consideration and arguments in this regard are misconceived. 24. This apart, the tenant does not dispute that his wife had constructed a commercial complex and is running a wholesale medicine shop therein. The occupation of a non-residential accommodation by a family member of the tenant is a relevant consideration on the question of comparative hardship of the parties. As this fact is admitted, at least this can be concluded that the tenant would not suffer any hardship, in case, the release is allowed. 25. On the question of bona fide need, the burden was upon the tenant to prove that there was another shop available to the landlord for the need set up in the release application more so in view of the categorical submission of the landlord that no other place was available to him. 26. Having heard learned counsel for the parties and upon a perusal of the material on record, this Court is of the opinion that the findings recorded by the Courts below are to be examined only on the question of bona fide need. On comparative hardship, the tenant does not dispute that his wife owns a commercial complex and occupies a shop in which she is doing a wholesale medicine business. This is a relevant factor which goes in favour of the landlord and, therefore, it is concluded that, in case, the shop in question is released, the tenant would not suffer any hardship. 27. However, merely because the tenant occupies another non-residential accommodation, no presumption can be drawn on the need of the landlord. This is a relevant factor which goes in favour of the landlord and, therefore, it is concluded that, in case, the shop in question is released, the tenant would not suffer any hardship. 27. However, merely because the tenant occupies another non-residential accommodation, no presumption can be drawn on the need of the landlord. The landlord has to stand on his own legs and to establish that he needed the shop in question for his son. 28. The fact that the elder son of the landlord is not doing any business is also not disputed by the learned counsel for the petitioner. The challenge to the findings on bona fide need is only on the ground that the landlord possess another shop in the same building and he has set up Gopal Kumar Gupta as tenant only with the intention to evict the petitioner. This shop “P” is actually not occupied by Gopal Kumar Gupta as a tenant and, therefore, the release application filed by the landlord is a result of concealment of a material fact and is mala fide. From this submission of the learned counsel for the petitioner, at least, it can safely be concluded that the landlord needed the shop in question for his elder son Manish Srivastava and his need could not be disputed by the tenant. 29. Now the only question remains as to whether the release application has been filed mala fide or by concealment of a material fact that a shop is/was available to the landlord in the building in question to settle his son. Before dealing with this question, alternative argument raised by the learned counsel for the petitioner is taken first. 30. It is stated that indisputably another shop “P” was given on rent without an allotment order to Gopal Kumar Gupta in the year 2005 and as such it is a case of deemed vacancy. Dealing with this submission of learned counsel for the petitioner, it is noteworthy that even an unauthorized occupant, in a case of a deemed vacancy, cannot be evicted from a shop without adopting due process of law. Even in a matter of deemed vacancy, a declaration is required by the Rent Controller Authority after providing due opportunity to the occupant. In case the shop is declared vacant, the release application filed by the landlord is to be decided on merits. Even in a matter of deemed vacancy, a declaration is required by the Rent Controller Authority after providing due opportunity to the occupant. In case the shop is declared vacant, the release application filed by the landlord is to be decided on merits. The landlord has to establish not only his need but ‘bona fide’ need for the shop, which is declared vacant. In case the landlord fails to establish his need ‘bona fide’, he cannot get the order of release and in that case, the vacant shop is to be alloted to the applicants/prospective allottees under Section 16 of the Act. In this senario, it cannot be said that Shop “P”, which is stated to be in occupation of Gopal Kumar Gupta, is available to the landlord in vacant state on the date of filing of the release application. Admittedly, there is no declaration of vacancy as on date with regard to the Shop “P” and, therefore, the alternative argument to challenge the order of release urged by the learned counsel for the petitioner is mis-conceived. 31. There is yet another aspect of the matter that the word “bona fide need” as found in Section 16(1)(b) and Section 21(1)(a) carries the same meaning. The object and purpose of Section 16 may be different from that of Section 21 but the expression “bona fide” need has to be given the same meaning. In both the cases, the landlord has to establish his bona fide requirement to get the premises released. There is no difference in the degree of “need” to be established by the landlord in the proceedings under Section 16(1)(b) or Section 21(1)(a). Only benefit before the landlord in a matter under Secton 16(1)(b) is that the tenant would not be there to contest his need and the comparative hardship of the tenant would not be seen in such a case. This view finds support from a decision of this Court in Dr. Sita Ram Gandhi v. IV Additional District Judge, Meerut and another, 1983(1) ARC 782. Relevant paragraph 10 is as under : “10. It may be correct that in Section 16(1)(b) as well as in Section 21(1)(a) the legislature has used the same expression, i.e., “bona fide requirement”. This view finds support from a decision of this Court in Dr. Sita Ram Gandhi v. IV Additional District Judge, Meerut and another, 1983(1) ARC 782. Relevant paragraph 10 is as under : “10. It may be correct that in Section 16(1)(b) as well as in Section 21(1)(a) the legislature has used the same expression, i.e., “bona fide requirement”. The settled rule of interpretation of statutes is that an expression used in the same statutes at two places should be given the same meaning unless the context requires otherwise. Though the object and purpose of Section 16 is different than that of Section 21, but in the background or in the context of these provisions, this expression has to be given the same meaning. The expression require significance that mere desire on the part of the landlord is not enough. There should be an element of need and the landlord must show that he requires the building in question for the purpose for which he has applied. The use of the expression ‘bona fide’ is indicative of the intention of the legislature that the requirement should be common or with good faith, honestly, truely or actually. The contention of the petitioner’s learned counsel that the proceedings of Sections 16 and 21 being different, the meaning to be assigned to this expression used in the two sections should also be different does not appeal to me. The same word may mean one thing in one context and another in different but hear the context of Sections 16 and 21 is necessarily the same i.e., the requirement of the land to get his premises released. Mere assertion on the part of the landlord that he requires additional accommodation in occupation of the tenant is not sufficient. It is for the Court to determine the truth of the assertion and also whether in is bona fide. The test, as said by the Supreme Court in Mattulal v. Radhe Lal is objective and not subjective.” 32. Now, in the light of the above principle, it is to be seen as to whether the petitioner is in a better position than that of another tenant namely Gopal Kumar Gupta, in case, it is accepted that he has been inducted without allotment order. Now, in the light of the above principle, it is to be seen as to whether the petitioner is in a better position than that of another tenant namely Gopal Kumar Gupta, in case, it is accepted that he has been inducted without allotment order. This question has to be examined in view of the discussion made above which reflects that the petitioner neither could challenge the need of the landlord nor could win on the question of comparative hardship. 33. In that eventuality, the petitioner is not entitled to contest on the ground that the landlord should have chosen an alledged unauthorized occupant in place of a tenant who enjoys protection of the Act. The protection as alleged by the petitioner is not available to him in view of the fact that he had constructed a commercial complex in the name of his wife and is occupying a shop wherein his wife is doing business. 34. The Rent Control Act has been enacted to provide protection to the tenant but not to unscruplous persons like the petitioner who occupies another place for his business. 35. Thus, it is held that the protection as contended by the petitioner is not available to him. Consequently, the petitioner cannot win over another occupant of Shop “P”, the arguments in this regard are mis-conceived. However, in view of the settled position that in case of release under Section 21(1)(a), the landlord has to establish his need “bona fide” and, therefore, the fact that he should file the release appliction with clean hands becomes much more relevant. 36. In any case, even if the tenant is not available to contest, the landlord has to stand on his own legs. No presumption can be drawn with regard to the need being bona fide or the release application being filed with bona fide intention. It is the duty of the landlord to establish before the Court below that he has come out with clean hands. No order can be passed on the application of a person who chooses not to approach the Court with clean hands. In this scenario, the contention of the landlord that the Shop “P” is occupied by Gopal Kumar Gupta is required to be examined. 37. No order can be passed on the application of a person who chooses not to approach the Court with clean hands. In this scenario, the contention of the landlord that the Shop “P” is occupied by Gopal Kumar Gupta is required to be examined. 37. The Prescribed Authority, while dealing with this issue has laid the burden upon the petitioner-tenant and recorded that no evidence could be filed by him to establish his contention that Shop “P” was not occupied by Gopal Kumar Gupta. Whereas the Appellate Court, on the basis of affidavit of a witness filed with the affidavit of the landlord and his son and the rent receipts filed alongwith the said affidavit, had recorded that the landlord had proved in evidence that Shop “P” is under the tenancy of Gopal Kumar Gupta. 38. From a perusal of the findings of the Courts below, it is apparent that the specific dispute raised by the petitioner is that the rent receipts in the name of Gopal Kumar Gupta were of the period of pendency of the release application. No rent receipt has been filed to prove that on the date of filing of release application, Shop “P” was in tenancy of Gopal Kumar Gupta. From the pleadings of the parties it is established that the petitioner had contested the release application on the ground that Shop “P” was available to the landlord on the date of filing of the release application and he had concealed this fact. As the landlord has not approached the Court “bona fide” and, therefore, his need was not real and genuine. The shop in question could not be released for the need of the landlord. 39. Only after this objection was raised by the tenant in the written statement, the landlord disclosed this fact in the rejoinder. It is stated therein that the shop has already been let out to Gopal Kumar Gupta, in the year 2005 and is not in his vacant possession on the date of filing of release. The Prescribed Authority had erred in laying burden upon the petitioner to establish that Shop “P” was not given on rent inasmuch as negative evidence could not be led by the petitioner. The Prescribed Authority had erred in laying burden upon the petitioner to establish that Shop “P” was not given on rent inasmuch as negative evidence could not be led by the petitioner. The landlord is the best person to establish his assertion by leading positive evidence that Shop “P” was let out to Gopal Kumar Gupta in the year 2005 that is much prior to the filing of the release application, and is in his vacant possesion. 40. Admittedly, the rent receipts filed by the landlord with the affidavit were of the year 2010 and, therefore, the Appellate Court had erred in concluding that no adverse inference could be drawn on this question. 41. In any case, no rent reciepts prior to the filing of the release was brought before the Courts below by the landlord to establish that Shop “P” was given on rent to Gopal Kumar Gupta, prior to the filing of the release application and he had approached the Court bona fide. 42. In view of the above, it is concluded that the findings recorded by both the Courts below on this issue cannot be sustained. 43. The matter is, therefore, relegated to the lower Appellate Court to decide this issue afresh after providing due opportunity to both the parties to lead their evidences. For the said purpose, one month time is provided to both the parties. The petitioner and respondent No. 3 shall file their evidence before the Courts below within the aforesaid period and the Appellate Court shall decide this limited issue remitted to it expeditiously preferably within a period of three months from the date of submission of a certified copy of this order. 44. At the cost of repetition, it is held that the findings recorded by the Courts below on all other questions of need and hardship of the parties have been affirmed. The matter is remitted to the Lower Appellate Court on the limited issue of occupation and availability of Shop “P” to the landlord for the need set up by him to establish his son in business. 45. With the above observations and directions, the writ petition is disposed of.