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2018 DIGILAW 1279 (ALL)

Naqeeb Ahmad v. Mohammad Aslam

2018-05-21

SANGEETA CHANDRA

body2018
JUDGMENT : Sangeeta Chandra, J. This petition has been filed by the petitioner - tenant praying for setting aside of the order dated 26.04.2018 and the order dated 10.11.2017 passed by the Additional District Judge, Court No. 1, Jhansi in Rent Control Appeal No. 02 of 2017. Further prayer has been made to dismiss the release application filed by the respondent - landlord. 2. It has been argued by Shri Pankaj Agarwal, learned counsel for the petitioner - tenant, that the petitioner - tenant was inducted in the shop at ground floor of a building bearing Municipal No. 48/1, situated at Mohalla - Sarrafa Bazar, Jhansi by the erstwhile owner and landlord of the building, Shri Ashfaq Khan. In the year 2002, the entire property was purchased by the respondent - landlord Mohd. Aslam Khan through a registered sale deed. The respondent - landlord is a big businessman, having business of electronics appliances and is currently running his business from two places. However, he filed a release application under section 21(1)(a) of the U.P. Act No. XIII of 1972 seeking release of the shop in question for setting up his own business on the ground that his business of electronics appliances currently being run from a tenanted shop bearing No. 72/1, Gusainpur, Jhansi and he is now being asked to vacate the said shop by the landlord of the said shop. The petitioner - tenant filed objection to the release application, in which in paragraph nos. 22, 23, 24, 26, 28 and 29, the petitioner - tenant gave details of various accommodations available to the respondent - landlord, which could very well be used by him for running of his business in case he has such need. Although some of the accommodations was in different premises, but at least, three more shops were in the same premises lying in vacant possession of the respondent - landlord, which could have been utilized by him for setting up his electronics appliances business, if his need is so. 3. The landlord had, in his reply to such objection, vaguely stated that he had sold the other shop in the same premises to the tenants already in occupation of said shops and he had only one shop in his possession, which is too small for running his business of electronic appliances in the same premises. 4. 3. The landlord had, in his reply to such objection, vaguely stated that he had sold the other shop in the same premises to the tenants already in occupation of said shops and he had only one shop in his possession, which is too small for running his business of electronic appliances in the same premises. 4. It has been argued by Shri Agarwal that the landlord, being a subsequent purchaser, was also bound by the proviso to section 21(1) (a) of the Act to give a notice, at least, six months prior to filing of the release application, which he did not do and when the petitioner - tenant sought to bring this jurisdictional fact regarding non-maintainability of the release application, without such notice, by moving an amendment application to his written statement, the said application was rejected by the Prescribed Authority. The petitioner filed Writ Petition No. 44806 of 2016 before this Court, which was disposed of on 26.09.2016 leaving it open to the tenant to raise this purely legal question before the Prescribed Authority at the stage of hearing. 5. Shri Pankaj Agarwal further says that taking into account the evidence filed on behalf of both the parties, the Prescribed Authority came to a conclusion that the landlord's need was not pressing and genuine. It, therefore, rejected the application on 08.01.2017. Aggrieved by the said order, the landlord filed appeal, namely, Appeal No. 2 of 2017, in which the appellate authority set aside the order passed by the Prescribed Authority on the basis of a totally new case, set up by the landlord to the effect that the shop lying in vacant possession of the landlord in the same premises was too small to conduct his business of electronics appliances and, therefore, he will break down the intervening wall between the shop in possession of the petitioner and the shop lying in vacant possession and construct a big showroom for electronics appliances. It has been submitted by Shri Agarwal that initially, the landlord has resorted to concealment in his application for release saying that no other suitable accommodation was available in the city of Jhansi to shift his business from the currently tenanted premises at Gusainpur, Jhansi, but later on, when the evidence was brought on record through affidavits, the landlord changed his stand and said that other accommodation available to him in the city of Jhansi was not suitable. One was a residential house and the other was a shop which was being used by his wife and his brother-in-law for running business of ready-made garments. 6. With regard to the six months' notice, being a prior condition for filing a release application by a subsequent purchaser - landlord, the arguments raised by learned counsel for the tenant was not heard by the appellate authority on the ground of estoppel; even though, there was an observation by this Court in its judgment and order dated 26.09.2016 that it will be open for the tenant to raise such a purely legal question at the time of hearing. 7. Smt. Rama Goel Bansal, learned counsel for the respondent - landlord, has pointed out from the order passed by the Prescribed Authority that the landlord, in his affidavit filed before it marked as paper no. 79-C, had stated clearly that the shop lying in vacant possession of the landlord in the same premises behind the shop of the petitioner was too small to conduct his business of electronics appliances and he will demolish the intervening wall in between the two shops and make a new showroom to shift his business from the tenanted premises at Gusainpur, Jhansi to the premises owned by him at Sarrafa Bazar, Jhansi. Smt. Bansal also pointed out, from the affidavit filed by the landlord before the Prescribed Authority as referred to in the order passed by the appellate authority, that the other shops, said to be available in the same premises in which the shop in question was situated, were, in fact, sold out by the landlord to the sitting tenants thereof. She has also referred to the fact that the premises in question was bought by the landlord in the year 2002 and he had served the legal notice to the tenant in 2009-10. She has also referred to the fact that the premises in question was bought by the landlord in the year 2002 and he had served the legal notice to the tenant in 2009-10. The release application was filed only in 2011 and therefore, the protection given to a sitting tenant under proviso to section 21(1)(a) of the Act was not available to the tenant in this case, as has been interpreted by the Hon'ble Supreme Court in several of its judgments, i.e., Martin and Harris Ltd. Vs. VIth Additional District Judge & Ors., reported in1998 (1) ARC 109 and in Nirbhai Kumar vs. Maya Devi reported in 2009 (75) ALR 606. In the latter judgment in Nirbhay (supra), the Hon'ble Supreme Court was considering the reference made by the Division Bench and said that this three years period is a sort of moratorium intended for the tenant's protection and after expiry of three years period, the protection given to the tenant from being evicted has no further relevance. Thereafter, the Hon'ble Supreme Court has affirmed the decision in Martin and Haris (supra). It has also been submitted by Smt. Bansal that the landlord has such genuine and pressing need that he had even offered the shop lying vacant with him behind the shop in question to the tenant to run his business of selling bangles, because it was suitable for him, but not for the landlord. The landlord needed the shop facing the road side; whereas, the shop lying in vacant possession of the landlord was facing two feet wide gallery, which is not suitable for conducting business of electronics appliances. When the tenant had expressed his unwillingness to shift his business to the shop behind the shop in question, then the landlord had filed the release application and in his affidavit, has stated before the Prescribed Authority that he would demolish the wall in between the shops and make showroom for electronics appliances. 8. When the tenant had expressed his unwillingness to shift his business to the shop behind the shop in question, then the landlord had filed the release application and in his affidavit, has stated before the Prescribed Authority that he would demolish the wall in between the shops and make showroom for electronics appliances. 8. With regard to the argument that the landlord's concealment in not mentioning the other accommodation available to him in the city of Jhansi and in the premises in question, Smt. Bansal has stated that once there is a averment in the release application that no other premises were found suitable by the landlord for conducting his business in the city of Jhansi, that was sufficient averment and it was not necessary that all the properties in possession of the landlord should have been detailed in the release application and their non-suitability specifically stated. It was only after the written statement was filed by the tenant, disputing this statement made by the landlord regarding non-suitability of the other accommodation that in his replication, the landlord given details of the accommodation and why it was not suitable for him. Even otherwise, it does not lie in the mouth of the tenant to dictate terms to the landlord as to which accommodation is suitable for conducting business. The landlord was in such a pressing need that he had even offered to give two years' rent as compensation to the tenant for shifting his business from the tenanted premises. She has also pointed out the conduct of the petitioner - tenant with regard to non-appearance before the appellate court after some dates and then, saying in the recall application that since he was a man of small means, he had engaged counsel who was the same counsel who did his case before the Prescribed Authority to conduct the case before the appellate authority and believing that some counsel would appear and continue to appear before the appellate authority, he had not persuaded the matter further. His counsel for the reasons best known to him, had not appeared before the appellate authority and therefore, he has moved a recall application. His counsel for the reasons best known to him, had not appeared before the appellate authority and therefore, he has moved a recall application. The counsel for the respondent - landlord has pointed out the inconsistent pleadings made in the recall application and the affidavit filed in support of the recall application and in the writ petition before this Court and has pointed out to this Court the shifting stand taken in each of the affidavits to show that the tenant has not come with clean hands. 9. In the rejoinder affidavit, Shri Agarwal has fairly admitted that there is some inconsistency in the pleadings of the tenant in the recall application and in the affidavit filed before the appellate court and in the pleadings of the writ petition and he says that he does not wish to press this point raised by the tenant any further, but he has also pointed out the misrepresentation resorted to by the landlord in the release application saying that he has no other accommodation suitable for shifting his business from currently tenanted premises from where it was being run at Gusainpur, Jhansi. Such concealment should have been taken into account by the learned appellate court and should also be taken into account by this Court in denying relief to the landlord. 10. I have considered the arguments made by the learned counsel for the petitioner - tenant and the respondent - landlord and have also gone through the order impugned passed by the appellate authority. 11. The appellate authority has taken into account the fact that the petitioner - tenant was conducting his business of selling bangles from the shop in question and the landlord had offered him alternative accommodation in the same premises by his affidavit (paper no. 89-C) referred to as paper no. 79-C, which was duly admitted as evidence and was marked as such by the Prescribed Authority and also referred to by the Prescribed Authority in its order rejecting the release application. It was not such an affidavit which was filed afresh before the appellate court or any additional evidence. The first appellate court has correctly interpreted the evidence already on record and given a finding of fact regarding non-suitability of the shop behind the petitioner's shop to be used by the landlord for the purpose of establishing a showroom of electronics appliances. The first appellate court has correctly interpreted the evidence already on record and given a finding of fact regarding non-suitability of the shop behind the petitioner's shop to be used by the landlord for the purpose of establishing a showroom of electronics appliances. No perversity regarding the finding of fact recorded by the first appellate court has been pointed out for this Court to show interference in the extra ordinary jurisdiction exercised by it under Article 227 of the Constitution of India. The writ petition is, therefore, dismissed. 12. No order as to costs. 13. At this stage, learned counsel for the petitioner - tenant has requested that this Court may grant some more time for him to vacate the accommodation in question. Smt. Bansal has referred to the order passed by the appellate authority and the pendency of the recall application for more than six months before the appellate authority and its rejection thereafter and she says that six months' time has already been availed of by the tenant and the landlord is ready to pay two years' rent as compensation to the tenant to find suitable accommodation. 14. This Court, therefore, directs that the tenant shall given vacant and peaceful possession of the shop in question to the respondent - landlord within a period of two months from today. The petitioner shall file an undertaking before the court below that he shall tender rent within 7 days of its accrual to the landlord and shall also give vacant and peaceful possession of the shop in question on or before 19th of July, 2018.