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2016 DIGILAW 748 (ALL)

Brij Pal Singh v. Irshad Ali Khan (Deceased)

2016-03-01

VIVEK KUMAR BIRLA

body2016
JUDGMENT Vivek Kumar Birla, J. – Heard learned counsel for the petitioner and have perused record. 2. By means of the present writ petition the tenant is challenging the order dated 14.11.2014 passed by the Prescribed Authority, Saharanpur in P.A. Case No. 34 of 2010, Irshad Ali and others v. Dr. Brajpal Singh whereby the application of the landlord filed under Section 21 (1) (a) of U.P. Act No. 13 of 1972 (hereinafter referred to as the application) was allowed. The aforesaid order was affirmed by the Additional District Judge, Court No. 3, Saharanpur in Rent Control Appeal No. 2 of 2015 by judgment and order dated 3.2.2016. 3. The application was filed by the landlord for release of the shop no. 1505/1, Mohalla Afganan Nakud, district Saharanpur with the allegation that he is the landlord of the shop in dispute and the petitioner is the tenant. He had filed application on the ground that the shop in dispute is required for his son Farhat Ali Khan who is a trained electrician and since he could not get any job, therefor? he has been working privately and is conducting his business from the residence itself as no shop is available for this purpose. It was further alleged that the tenant, who is a permanent resident of district Muzaffarnagar is a doctor by profession and he has two shops in district Muzaffarnagar wherefrom he is running a clinic and is also running a medical store. Apart from this he is also running one clinic at Kalsia Road Muzaffarabad district Saharanpur. It was categorically alleged that the tenant is keeping the shop in dispute locked and he is not using the sam?. Thus bona fide need was alleged by the landlord. The tenant replied to the same and he admitted that he is the tenant in the shop. 4. The allegations made in the application were denied by the tenant on the ground that the landlord is a rich farmer and his son is also involved in agriculture. Apart from that it was asserted that the son of the landlord is also involved in wholesale supply of electrical equipment. The petitioner asserted that he is running his clinic from the shop in dispute for the last 35 years and has earned goodwill and the shop in dispute is not lying locked as alleged by the landlord. 5. Apart from that it was asserted that the son of the landlord is also involved in wholesale supply of electrical equipment. The petitioner asserted that he is running his clinic from the shop in dispute for the last 35 years and has earned goodwill and the shop in dispute is not lying locked as alleged by the landlord. 5. In so far as the shop in Muzaffarnagar is concerned, he has asserted that these shops do not belong to him and they belong to his wife and his wife is running a medical store. He has further alleged that the landlord has a large number of other properties including other shops which are lying vacant, in which his son can very well run his business/profession. 6. After considering the documents on record a finding was recorded by the Prescribed Authority that the tenant has his own shops at Panchera Road, district Muzaffarnagar wherefrom he is running his clinic and one medical store in the name of his wife. It was further recorded that though the landlord has other property but the same are not in his possession and are under tenancy, therefore, the same are not available to the landlord to meet the requirement of his son. While discussing the bona fide need, on the basis of evidence on record it was held by the Prescribed Authority that since the tenant has shops available to him in district Muzaffarnagar wherefrom he is running his clinic and the shop in dispute is lying locked for the last 5 years and he is not running the clinic from the shop in dispute. The permission granted by the Chief Medical Officer, Muzaffarnagar to run the clinic is also on record, therefore, the ground that he has earned goodwill while running clinic from the shop in dispute is not worthy of acceptance. It was also recorded that no effort was made by the tenant to find out any alternative accommodation. After considering the law on the issue it was held by the Prescribed Authority that every adult member of landlord's family and every landlord is entitled to have his own separate business and for this purpose the need of the landlord is bona fide and reasonable as he is unemployed and is running his business from the residence only. After considering the law on the issue it was held by the Prescribed Authority that every adult member of landlord's family and every landlord is entitled to have his own separate business and for this purpose the need of the landlord is bona fide and reasonable as he is unemployed and is running his business from the residence only. Regarding comparative hardship the issue was decided against the tenant as he has not made any effort to find out any alternative accommodation and also for the reason that he is comfortably running his clinic in district Muzaffarnagar and from other places and therefore, comparative hardship of son of landlord who is unemployed is greater and that the landlord has every right to settle his son in business and it is not open to the tenant to dictate the manner in which the landlord should dispose of his property. While dealing with the issue that the landlord is a big farmer, the Prescribed Authority has held that every member of the landlord's family has a right to establish himself and establish an independent business. On the basis of such findings, the application was allowed by the Prescribed Authority by judgment and order dated 14.11.2015. 7. The appellate authority considered the question of bona fide need and comparative hardship. A finding was recorded that the son of the landlord Farhat Ali Khan is a trained electrician and is conducting his business from residence only after the death of original landlord Irshad Ali. Regarding availability of any alternative accommodation to the landlord on the basis of documentary evidence on record 81C, 82C and 83C it was held that all these shops were under tenancy of different tenants and were not in possession of the landlord and as such it was held that alternative accommodation was not available to the landlord to satisfy his bona fide need. Again, considering the documentary evidence on record a finding of fact was recorded by the appellate court that the tenant has got prepared various letter pads etc. to establish that he is running clinic at Saharanpur and it is nowhere indicated that the clinic at Saharanpur, which he is alleging is running from the shop in dispute, has earned any goodwill in favour of the tenant. to establish that he is running clinic at Saharanpur and it is nowhere indicated that the clinic at Saharanpur, which he is alleging is running from the shop in dispute, has earned any goodwill in favour of the tenant. The finding of the Prescribed Authority was affirmed that the tenant is running his clinic from the shop in his possession at Muzaffarnagar and is also having a medical store whereas the son of the landlord is running his profession/business of electrical work from his residence only. As such, bona fide need was decided in favour of the landlord while affirming the findings recorded by the Prescribed Authority. 8. In so far as comparative hardship is concerned, on the basis of the findings as already noticed, it was held that since the tenant is running his clinic at district Muzaffarnagar whereas the landlord is running his profession/business of electrical work from his residence only, therefore, the issue of comparative hardship is decided in favour of the landlord. The appellate court has, therefore, affirmed the judgment of the Prescribed Authority after going through the documentary evidence on record. 9. Learned counsel for the petitioner has submitted that since the petitioner is running clinic from the shop in dispute for the last 35 years and has earned well goodwill in the society, therefore, concurrent findings recorded by the courts below are incorrect and are contrary to evidence on record. 10. I have perused the judgments which are based on the documentary evidence on record. In view of the fact that concurrent findings have been recorded by the courts below that the landlord is running his electrical work from his residence whereas tenant is running clinic in district Muzaffarnagar and the shop in dispute in district Saharanpur I do not find any good ground to interfere in the concurrent findings recorded by the courts below.It is the settled law that findings of facts cannot be interfered with by re-appreciating the evidence. 11. No legal infirmity could be pointed out by learned counsel for the petitioner nor this Court could find out any legal infirmity in the impugned judgment warranting interference under Article 226 of the Constitution of India. 12. The writ petition is devoid of merit and is, accordingly, dismissed. 13. At this stage, learned counsel for the petitioner submits that the petitioner may be granted some time for vacating the shop. 14. 12. The writ petition is devoid of merit and is, accordingly, dismissed. 13. At this stage, learned counsel for the petitioner submits that the petitioner may be granted some time for vacating the shop. 14. In such view of the matter, petitioner is granted six months time to vacate the property in dispute on following terms: (1) The tenant-petitioner shall handover the peaceful possession of the premises in question to the landlord opposite party on or before 31.8.2016. (2) The tenant-petitioner shall file the undertaking before the Court below to the said effect within two weeks from the date of receipt of certified copy of this order; (3) The tenant-petitioner shall pay damages @ Rs. 500/- per month by 7th day of every succeeding month and continue to deposit the same in the Court below and the landlord is at liberty to withdraw the said amount; (4) In the undertaking the tenant-petitioner shall also state that he will not create any interest in favour of the third party in the premises in dispute; (5) Subject to filing of the said undertaking, the tenant petitioner shall not be evicted from the premises in question till the aforesaid period; (6) It is made clear that in case of default of any of the conditions mentioned herein-above, the protection granted by this Court shall stand vacated automatically. 15. No costs. Petition dismissed.