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2018 DIGILAW 1140 (ALL)

VINEET KUMAR SAXENA v. DISTRICT JUDGE, SHAHJAHANPUR

2018-05-07

SANGEETA CHANDRA

body2018
JUDGMENT : Sangeeta Chandra, J. This petition has been filed by petitioner-tenant Vineet Kumar now deceased through his legal heirs and representatives challenging the order passed by the Appellate Court dated 19.03.2018 in PA Appeal No. 9 of 2016 by District Judge, Shahjahanpur. 2. Learned counsel for petitioners submits that landlord had filed Release Application under Section 21(1) (a) of the U.P. Act No. 13 of 1972 showing his bona fide need for settlement of his son who was unemployed. The Prescribed Authority in PA Case No. 10 of 2012 came to the conclusion that the landlord had not come with clean hands praying for release of the shop in question as in pursuance of the partition that took between the landlord and his brother, the landlord was in possession of two shops and not one as alleged by him. The comparative hardship of petitioner was found greater as he had an old and ailing father to look after and two growing children. Despite effort being made by him, he could not find alternative accommodation to shift his business. 3. It has been further submitted that when the landlord filed appeal namely Appeal No. 09 of 2016 the Appellate Authority without setting aside the findings of fact recorded by the Prescribed Authority, concentrated only on the grounds set up by the landlord that his son was unemployed and needed to be settled in an independent business. 4. The learned counsel for landlord-respondent, on the other hand, has pointed out from the order of the Appellate Authority that the Appellate Authority has considered the finding of the Prescribed Authority regarding the existence of a second shop and has come to the conclusion that it is not a shop but was drawing room that opened towards the street and could not be used as a shop to set up business of the landlord's son. 5. I have gone through the order passed by the Appellate Authority and the order passed by Prescribed Authority. The Appellate Authority has rightly come to the conclusion that son of the landlord remained unemployed although he had done apprenticeship in Ordnance Factory at Shahjahanpur. He had no job till the time of decision of Appeal. The Appellate Authority has also taken into account the binding precedents of this Court and of the Hon'ble Supreme Court. The Appellate Authority has rightly come to the conclusion that son of the landlord remained unemployed although he had done apprenticeship in Ordnance Factory at Shahjahanpur. He had no job till the time of decision of Appeal. The Appellate Authority has also taken into account the binding precedents of this Court and of the Hon'ble Supreme Court. This Court in Harun Ali and Others v. Shri. Nav Jeevan and Others, (2017) 2 ARC 668 has observed that during the pendency of the Release Application which remained pending for nearly six years, nothing was brought on record to demonstrate that any effort was made to arrange for an alternative accommodation by the tenant and therefore the scale of comparative hardship tilted in favour of the landlord and the order passed by the learned Court below did not require interference. In Mohd. Ayub and Others v. Mukesh Chandra, (2012) AIR SC 881, 2012 1 CRS 1 : the Supreme Court had observed thus:- "11. Rule 16 (2) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972 ( for short, "the said Rules") states which facts the Prescribed Authority has to consider while dealing with an application for release under clause (a) of sub-section (1) of Section 21 of the U.P. Act. Rule 16 (2) refers to building let out for purpose of any business and the facts which have to be taken into consideration are: a. length of tenancy of the tenant; b. availability of suitable accommodation for tenant; c. whether the landlords existing business is more flourishing than that which is proposed to be set up by him in the leased premises and d. need of self-employment of a son or married or unmarried or widowed or divorced or judicially separated daughter or a male lineal descendant of the landlord who has completed his or her technical education and who is not employed in Government service. xx xx xx xx 13. In our opinion, Ganga Devi applies on all fours to the present case. The first appellant carries on his business from three small stalls of a shop of the Cantonment Council whose rent keeps on increasing. There is nothing on record to suggest that the appellants' present business is more flourishing than the business which they propose to start in the leased premises. All the three sons of the appellants are educated but unemployed. There is nothing on record to suggest that the appellants' present business is more flourishing than the business which they propose to start in the leased premises. All the three sons of the appellants are educated but unemployed. They want to start business in the premises in occupation of the respondent. One of them is married and has three children. The other three are of a marriageable age. In all there are thirteen members in the appellants' family and they are living in three rooms and one verandah with great difficulty. As against that the respondent's family consists of four persons and there are four rooms in his possession. It is observed by the courts below that the appellants own other premises. However, details of those premises are not on record. The High Court has rightly noted that this bald assertion is based on conjectures. It is well settled the landlord's requirement need not be a dire necessity. The court cannot direct the landlord to do a particular business or imagine that he could profitably do a particular business rather than the business he proposes to start. It was wrong on the part of the District Court to hold that the appellants' case that their sons want to start the general merchant business is a pretence because they are dealing in eggs and it is not uncommon for a Muslim family to do the business of non- vegetarian food. It is for the landlord to decide which business he wants to do. The Court cannot advise him. Similarly, length of tenancy of the respondent in the circumstances of the case ought not to have weighed with the courts below." 6. The learned counsel for petitioner-tenant has placed reliance upon a judgment of the Supreme Court in reported in H. Siddiqui (Dead) by L.Rs v. A Ramalingam, (2011) 4 SCC 240 : ( AIR 2011 SC 1492 ), paragraphs 18 and 19 thereof wherein the Supreme Court has said that the first appellate court was bound to consider all aspects of the matter. It must be evident from the judgment of the appellate court that the court has properly appreciated the facts/evidence, applied its mind and decided the case considering the material on record. It must be evident from the judgment of the appellate court that the court has properly appreciated the facts/evidence, applied its mind and decided the case considering the material on record. It would amount to substantial compliance of Order XLI if the appellant court's judgment is based on the independent assessment of the relevant evidence on all important aspect of the matter and findings of the appellate court are well founded and quite convincing. Being the final court of fact the first appellate court must not make only a general expression of concurrence with the trial court judgment rather it must give reasons for its decision on each point independently to that of the trial court. The entire evidence must be considered and discussed in detail. The Hon'ble Supreme Court has relied upon earlier binding precedents and reiterated more or less settled position in law with regard to the duty of the first appellate court so that its judgment is an independent assessment of the fact and law and reflects its conscious application of mind and record findings supported by reasons on all the issues arising along with the contentions put-forth and pressed by the parties for decision before the appellate court. 7. I have gone again through the judgment of the appellate court and I find that there is a specific consideration of the tenant's plea that the landlord had an alternative accommodation in the form of another shop vacated by one Kanchan Bose in the year 2012 which he was using as a drawing room, could have been used as a shop as it was earlier being done before partition with the brother of landlord. 8. The appellate court has found that the landlord had no independent exit after partition with his brother and the alleged second shop was being used as a drawing room and as an ingress and egress from the house in question. 9. I do not find any good ground to show interference under Article 227 of the Constitution of India in the findings recorded by the appellate Court. 10. Learned counsel for the petitioner has in the last submitted that the children of the tenant are small and still studying and as the tenant died on 16.04.2018, some reasonable time may be given by this Court for vacation of the premises in question. 11. 10. Learned counsel for the petitioner has in the last submitted that the children of the tenant are small and still studying and as the tenant died on 16.04.2018, some reasonable time may be given by this Court for vacation of the premises in question. 11. Since, the appellate court has given only two months' time for the tenant to vacate the premises in question and the aforesaid two months' time is about to be over, this Court feels it appropriate to give six months' time more to the petitioners to vacate the premises in question and since it is a commercial shop that is being vacated, it is further directed that landlord shall pay two years' rent as compensation to the petitioner-tenant's legal heirs to avoid any unnecessary hardship being faced by them in searching for an alternative accommodation. 12. Six months' time that is being given to the legal heirs and representatives of the petitioner-tenant is subject to the condition that legal heirs and representatives of the petitioner-tenant shall file an undertaking before the Prescribed Authority through an affidavit that they shall vacate the premises in question in six months from today and shall also give the rent within 7th day of its falling due to the landlord. 13. The petition is dismissed subject to the aforesaid observation.