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2018 DIGILAW 1595 (ALL)

SUBHASH BROTHERS v. SRIRAM GUPTA

2018-07-20

VIVEK KUMAR BIRLA

body2018
JUDGMENT Hon’ble Vivek Kumar Birla, J.—Heard learned counsel for the petitioners and Sri Anurag Asthana, learned couinsel appearing for the respondent. 2. Present writ petition has been filed seeking quashing of the order dated 7.4.2018 passed by the Additional District Judge, Court No. 12, Kanpur Nagar in Rent Appeal No. 149 of 2014, M/s Subhash Brothers and others v. Sriram Gupta and the order dated 18.10.2014 passed by the Prescribed Authority in Rent Case No. 7 of 2013, Sriram Gupta v. M/s Subhash Brothers and others filed as Annexures 7 and 5 to the writ petition. 3. The release application filed by the landlord-respondent was allowed vide judgment and order dated 18.10.2014 passed by the Prescribed Authority. The appeal filed against the same was dismissed by the impugned order dated 7.4.2018 passed by the appellate authority. Hence the present writ petition. 4. The release application was filed on the ground that the applicant is the landlord of House No. 129/L/17, Kidwai Nagar, Kanpur Nagar and the opposite party No. 2 is having a business in the name of Subhash Brothers in the adjoining shop No. 129/L/18, Kidwai Nagar, Kanpur The premises in question is the shop in possession of opposite parties No. 1 and 2 and the opposite party No. 3 has been taken as sub-tenant in the shop. It was asserted in the release application that for personal need of the landlord the premises in required as the landlord is 72 years old and he has difficulty in climbing the staircases. It was also asserted that his family members have cars and motorcycles and they have to keep their vehicles outside their house and therefore, the personal need was set up. It was further asserted that the opposite parties have also in their possession sufficient space and they have also taken godowns near the shop and the shop in question is being used as godown. 5. Three issues were framed. One, regarding the relationship of landlord and tenant; second, regarding bona fide need; and third, regarding comparative hardship. The tenant contested the suit and pointed out that defendant No. 3 is the partner in the firm Subhash Brothers and is having possession over the shop as owner. On Issue No. 1 it was found that there is relationship of landlord and tenant. The tenant contested the suit and pointed out that defendant No. 3 is the partner in the firm Subhash Brothers and is having possession over the shop as owner. On Issue No. 1 it was found that there is relationship of landlord and tenant. On Issue No. 2 regarding bona fide need it was found that the landlord is 72 years old and also space is required for car parking, thus, his need was found to be bona fide and genuine. The comparative hardship was also found in favour of the landlord as the tenant has alternative accommodation in possession and also that the tenant has never made any effort to search out any alternative accommodation. 6. Challenging the judgments impugned herein, submission of learned counsel for the petitioners is that the ground of sub-letting has been taken in the release application and as such the release application filed under Section 21 (1) (a) of the U.P. Urban Building (Regulations of Letting, Rent & Eviction) Act, 1972 is not maintainable. He has placed reliance on a judgment of this Court in the case of Nand Lal Chaurasia v. VI Additional District Judge, Pratapgarh and others, 2003 (6) AWC 5288 (LB), in support of his argument. He further submitted that the need is not bona fide inasmuch as the space for car parking cannot be included as a bona fide need. It was further submitted that the comparative hardship is also in favour of the petitioners. 7. Per-contra, learned counsel appearing for the landlord-respondent has submitted that there is concurrent finding of fact that the landlord is 72 years old and the ground floor is required for his personal need. The issue regarding bona fide need and the need for car parking has been rightly decided by both the Courts below and as such no interference is warranted. On the issue of sub-letting he submitted that the sub-letting was categorically denied and the possession of the respondent No. 3 was asserted to be in the capacity of owner of the firm M/s Subhash Brothers, therefore, even the issue regarding subletting was also not framed. 8. I have considered the rival submissions and have perused the record. 9. On the issue of sub-letting he submitted that the sub-letting was categorically denied and the possession of the respondent No. 3 was asserted to be in the capacity of owner of the firm M/s Subhash Brothers, therefore, even the issue regarding subletting was also not framed. 8. I have considered the rival submissions and have perused the record. 9. On perusal of record I find that it was claimed in the release application that the respondent No. 3 has been taken as sub-tenant in the shop, however, this fact was specifically denied by the tenant and it was asserted that he is in occupation of the shop as owner. It is noticeable that no issue in this regard was framed by the Prescribed Authority, however, this has been discussed by the Prescribed Authority as well as by the appellate Court. I find that in fact, the release application has been filed against the first set of the opposite parties M/s Subhash Brothers and Subhash Sindhi as proprietor of the firm and thus, it was found that there is relationship of landlord and tenant between first set of tenant and the landlord. Under such circumstances, I do not find any perversity in the findings recorded by both the Courts below. 10. So far as the judgment in the case of Nand Lal Chaurasia (Supra) is concerned, there it was asserted that the opposite party was in unauthorized occupation and was not the tenant. It is not the case here and the release application has been filed against the first set of the tenants who are admittedly the tenants in two shops being used as godown. In such view of the matter, the same is clearly distinguishable. 11. In so far as the bona fide need is concerned, it was found that the landlord is 72 years old and he is suffering from various ailments and has difficulty in climbing stairs and it was also found that the landlord has four wheelers and two wheelers and there is no space for parking and as such the bona fide need for car parking was found to be genuine. In (i) Chakresh Chand Jain v. VIII Additional District Judge, Meerut and others, 1991 (1) ARC 41; (ii) Hari Kishan Ahuja v. Additional District Judge, Bulandshahr and others, 2003 (1) ARC 366; and (iii) Saraswati Devi (Smt.) v. K.C. Yadav, 2005 (2) ARC 484 , it has been held that need for car parking is a genuine and bona fide need and release of building for keeping a car was upheld. 12. It is now settled law that for the purpose of parking if the need is set up, the same is bona fide and genuine. It was also found by the trial Court that the opposite parties have their own alternative accommodation being shop in Property No. 29/L/18 and has also acquired quarter for godown in Block No. 163/6 and one more quarter for godown behind the aforesaid property and they are keeping shops as godown. Under such circumstances, I find that there is no perversity in deciding the issue of bona fide need. 13. So far as the comparative hardship is concerned, there is nothing to dispute that no effort has been made by the petitioners to search out any alternative accommodation. The law is settled on this issue. In this regard, a reference may be made to B.C. Bhutada v. G.R. Mundata, AIR 2003 SC 2713 . 14. Under such circumstances, I do not find any legal infirmity in the orders impugned herein. 15. This writ petition has no merit and is, accordingly, dismissed. No order as to costs.