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2017 DIGILAW 1609 (ALL)

RAMAN LAL CHATURVEDI v. STATE OF U. P.

2017-07-05

ANJANI KUMAR MISHRA

body2017
JUDGMENT Hon’ble Anjani Kumar Mishra, J.—Heard Smt. Rama Goel Bansal for the petitioner and Shri Rahul Sahai for the contesting respondent No. 1. 2. The petition arises out of a release application under Section 21(1)(a) of the U.P. Act No. 13 of 1972 filed by the respondent for release of a shop and challenges the order dated 29.3.2013 passed by the Prescribed Authority allowing the release application and the order dated 27.10.2016 passed by the Additional District Judge/Special Judge, Mathura, whereby the consequential appeal has been dismissed. 3. The release application was filed on the ground that the respondent No. 1 required th After his death, the applicant, an original resident of Mathura had shifted to Mathura. It was also alleged that she had two daughters, the elder daughter was married and was residing in Mathura while the younger daughter is unmarried and was living with her mother. She has no means of livelihood after the untimely death of her husband, who was a professor in Baroda.During the pendency of the release application even the younger daughter was married. The younger daughter was granted an appointment in Baroda under the Dying in Harness Rules. It was also averred that the original tenant was paralysed and his son was employed at Mumbai and, therefore, the shop had been sublet. 4. The petitioner contested these proceedings primarily on the ground that the respondents were permanently residing in Baroda and had no intention of shifting to Mathura and, therefore, the need set-up, was not bona fide. The release application had been filed only to evict the petitioner and to relet the shop at a higher rent. The allegation of subletting was categorically denied. 5. The contention of learned counsel for the petitioner is that the land lady never adduced any evidence that she was permanently residing at Mathura and, therefore, an evidence inference was liable to be drawn against her. Upon evidence being adduced to show that the land lady was residing in Baroda, it was admitted that she resides also at Baroda, of and on. 6. It is further submitted that evidence in the form of Voter I.D. Card, the Voter List, a bill and a postal receipt had been filed on record to show that the land lady was permanently residing in Baroda but this evidence has not been considered by the two Courts below. 6. It is further submitted that evidence in the form of Voter I.D. Card, the Voter List, a bill and a postal receipt had been filed on record to show that the land lady was permanently residing in Baroda but this evidence has not been considered by the two Courts below. This evidence had been filed as additional evidence at the appellate stage and was taken on record subject to payment of Rs. 200 as costs. The cost was duly paid and, therefore, the additional evidence, so admitted, was necessarily required to be considered and dealt with. In failing to do so the appellate Court has committed manifest illegality, warranting interference. 7. It is also submitted that the Prescribed Authority had decided the case ex parte. This ground was also taken in appeal but the same has not been considered in the right perspective. It is lastly reiterated that it is not proved on record that the need set up in the release application was genuine and bona fide. 8. Learned counsel for the respondent has submitted that there was enough evidence on record to show that the land lady was possessed of residential accommodation in Mathura and that the shop in question was the only commercial accommodation available to her for setting up her independent business. 9. He has further submitted that the additional evidence filed on record was only to the extent that the land lady possessed a flat in Baroda. There is no material on record to show that the land lady had any alternative commercial accommodation available to her. The additional evidence, therefore, was not relevant and, therefore, even if the same has not been considered, the same would not vitiate the appellate order or cause any prejudice to the petitioner. 10. He has lastly submitted that there is no evidence on record to show that the petitioner-tenant made any effort to look for alternative accommodation and in the absence of any such material, the finding on the question of comparative hardship is justified and calls for no interference. 11. He has placed reliance upon the following case law: Sarla Ahuja v. United India Insurance Co. 11. He has placed reliance upon the following case law: Sarla Ahuja v. United India Insurance Co. Ltd., AIR 1999 SC 100 and Bhagwat Prasad Agrawal v. Radha Raman Agrawal, 2015 (2) ARC 370, wherein it has been held that the bona fide requirement of a land lady in possession of another flat in another city is not a ground to disentitle her to seek recovery of possession of tenanted accommodation. Ram Prakash Gupta v. Ist Additional District Judge, Badaun, 1990 (1) ARC 435, wherein it has been held that if the landlord has a bona fide need, he cannot be compelled to construct new shop to start his own business. 12. The following have been cited to canvass that the landlord has complete freedom to choose the place, which is most suitable for setting up his business and this need to be seen on the date of the release application, itself. 1. Rishi Kumar Govil v. Maqsoodan and others, 2007 (2) ARC 1. 2. Sarju Prasad v. 8th Additional District Judge (LB), 2006 (24) LCD 1201. 3. Jameel Ahmad v. Additional District Judge/Special Judge (SC/ST) Act, 2016 (1) ARC 821. 4. Suresh Chand Sharma v. Nand Kumar Kamal (H.C.), 2013 (97) ALR 817. 5. Bhagwat Prasad v. Radha Raman Agrawal, 2015 (2) ARC 370. 6. Mohd. Sohail v. Additional District Judge, Lucknow and another, 2007 (2) ARC 354. 13. He has also cited six judgments, wherein it has been held that where no effort was made by the tenant to search for alternative accommodation, the same is a good enough ground to decide the issue of comparative hardship in favour of landlord. 1. Prabhu Dayal Gupta v. R.N. Jaiswal, 2013 (96) ALR 707. 2. Suresh Chand Sharma v. Nand Kumar Kamal, 2013 (97) ALR 817. 3. Jameel Ahmad v. Additional District Judge/Special Judge (SC/ST) Act, 2016 (1) ARC 821. 4. Bhola Tailor Master v. Smt. Harvati Devi, 2011 (84) ALR 502. 5. Mohd. Sohail v. Additional District Judge, Lucknow and another, 2007 (2) ARC 354. 6. Sarju Prasad v. 8th Additional District Judge, 2006 (24) LCD 1201 (LB). 14. In rejoinder, counsel for the petitioner has referred to page Nos. 107 and 108 of the Paper Book in support of her contention that the Prescribed Authority had decided the case ex parte. Mohd. Sohail v. Additional District Judge, Lucknow and another, 2007 (2) ARC 354. 6. Sarju Prasad v. 8th Additional District Judge, 2006 (24) LCD 1201 (LB). 14. In rejoinder, counsel for the petitioner has referred to page Nos. 107 and 108 of the Paper Book in support of her contention that the Prescribed Authority had decided the case ex parte. She has also referred to page 136 to urge that the date of the judgment passed by the Prescribed Authority has clearly been manipulated. 15. I have considered the submissions made by learned counsel for the parties and have perused the impugned orders as also the judgments cited by them. 16. Despite the lengthy arguments and counter arguments that have been advanced by counsel for the parties, in my considered opinion, this writ petition is liable to be decided on a single short point. It is not disputed that additional evidence filed by the petitioner-tenant at the appellate stage had been taken on record subject to payment of costs which is stated to have been duly paid. 17. Under the circumstances, this additional evidence was necessarily required to be considered by the appellate Court while deciding the appeal and in failing to do so, the appellate Court has committed manifest illegality. The impugned order therefore, cannot be sustained and liable to be set aside. 18. The evidence filed on record is to be considered by the Courts below. It is not the duty of the writ Court to appreciate the evidence to determine as to whether, it is relevant or not. This exercise is necessarily to be performed by the Courts below and for this reason, I do not find any substance in the contention of counsel for the respondents that the evidence adduced was not relevant. This finding necessarily had to be recorded by the first appellate Court, which had permitted this additional evidence to be brought on record. 19. In view of the above, the impugned appellate order dated 27.10.2016 is set aside and the writ petition is accordingly allowed. The matter is remanded back to the appellate Court to pass a fresh order after hearing the parties and after considering the additional evidence filed by the petitioner at the appellate stage. 20. 19. In view of the above, the impugned appellate order dated 27.10.2016 is set aside and the writ petition is accordingly allowed. The matter is remanded back to the appellate Court to pass a fresh order after hearing the parties and after considering the additional evidence filed by the petitioner at the appellate stage. 20. This exercise must be completed expeditiously and preferably within a period of three months from the date of certified copy of this order is filed before him.