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2018 DIGILAW 1959 (ALL)

Sanjai Kumar Gupta v. Rajeshwari Devi

2018-09-11

VIVEK KUMAR BIRLA

body2018
JUDGMENT : 1. Heard learned counsel for the petitioner and Sri Ramesh Chandra Agrahari, learned counsel appearing for the respondent-landlady. 2. Present petition has been filed for quashing the order dated 30.5.2018 passed by Additional District Judge, Kanpur Nagar in Rent Appeal No. 64 of 2017 (Sanjai Kumar Gupta vs. Smt. Rajeswari Devi) as well as order dated 1.11.2017 passed by the prescribed authority in Rent Case No. 4 of 2011 (Smt. Rajeswari Devi vs. Sanjai Kumar Gupta. Further prayer has been made seeing direction to the respondent to intimate vacancy to the Rent Control and Eviction Officer, Kanpur about shop no. 3 vacated by Anil Kumar and Dinesh Verma and about the shop of late Saleem vacated by Jane Alam s/o Saleem in pursuance of the decree dated 12.5.2017 passed in SCC Suit No. 234 of 2012 and nominate the petitioner under Section 17 of the Act as his candidate for allotment of one of the said shop. 3. By the impugned judgment dated 1.11.2017 the release application filed by the landlady for the need of her son under Section 21(1) (a) of the Act 13 of 1972 was allowed. The appeal filed by the tenant-petitioner herein was dismissed. The release application was filed by the landlady for the need of her son Kamal Gupta, who was stated to be unemployed and wants to carry on business. 4. Submission is that the need was contested by the tenant-petitioner herein on the ground that the landlady has three shops. One shop is in possession of Salim, other shop is in possession of one Anil Kumar and the third shop is in possession of the present petitioner herein. It was submitted that after death of Mohd. Salim SCC suit filed against his son Jane Alam was allowed on 12.5.2017 and in pursuance thereof the shop has been vacated by him and therefore, that shop is available. It was further submitted that another shop, which was stated to be in possession of one Anil Kumar, was also vacated and after getting the same vacated from Anil Kumar was let out to one Dinesh Verma. It was further submitted that now even Dinesh Verma has vacated the shop in favour of the landlady and as such two shops are available to the landlady for the need of her son and therefore, her need is not bonafide. It was further submitted that now even Dinesh Verma has vacated the shop in favour of the landlady and as such two shops are available to the landlady for the need of her son and therefore, her need is not bonafide. It was further submitted that Anil Kumar was wrongly shown as tenant on the basis of 5 years assessment 1987-92, whereas this is not the correct position. It was further submitted that the evidence in the shape of affidavits of various witness annexed from page 90 onwards of the present petition were not considered by the court below and as such the judgment suffers from non application of mind. It was submitted that in the Rent Control Inspector report Dinesh Verma was found to be in illegal possession and as such Dinesh Verma was inducted as an unauthorized occupant, therefore, the same is liable to be allotted to the petitioner and the landlord is liable to nominate the present petitioner for this purpose. He submits that second prayer in the petition has been made in this regard, which is also liable to be considered in accordance with law. 5. Per contra, learned counsel for the respondent has supported the impugned order and submitted that against the SCC judgment Jane Alam has filed a review, which is still pending and the landlady has not received the possession of the same as yet. It was further pointed out that the notices were issued to all the tenants on 10.11.2000 and second notice was issued on 21.10.2003 to all the three tenants i.e. Salim, Anil Kumar as well as the present petitioner Sanjai Kumar Gupta. Submission, therefore, is that the tenancy of Anil Kumar was not terminated in the year 1992 as contended by the learned counsel for the petitioner and he was still continuing. He further submits that the shifting stand has been taken before the court below in the affidavits filed by the tenant in his support and that the stand taken by the tenant has been duly considered by the court below and there is no perversity in the concurrent findings recorded by the court below. 6. I have considered the rival submissions and have perused the record. 7. On perusal of record I find that the concurrent findings on bonafide need have been recorded by both the courts below. 6. I have considered the rival submissions and have perused the record. 7. On perusal of record I find that the concurrent findings on bonafide need have been recorded by both the courts below. On perusal of affidavit of the present petitioner Sanjai Kumar Gupta at page 125 of the paper book I find that the stand taken is that Anil Kumar had vacated the shop and thereafter in violation of provisions of U.P. Act 13 of 1972 the aforesaid shop was given to Dinesh Verma and there is a legal vacancy; it is not in dispute that during inspection the Rent Control Inspector found that Dinesh Verma is illegal / unauthorized occupant and he has mentioned that even Dinesh Verma has handed over the possession to the landlady. On perusal of the report of Rent Control Inspector at page 87 of the paper book, which is a report filed by Rent Control Inspector on the allotment application filed by the present petitioner for allotting the house no. 489, I find that Rent Control Inspector has recorded that Dinesh Verma was in possession of the shop, thus, there is no dispute about the fact that the same was not in vacant physical possession of the landlady. The notices were given to the tenants by mentioning the house no. 489, which, after giving of the notice to all three tenants was changed to 489-A. The other shop with Jane Alam is categorically stated to be still in his possession and his review is pending. 8. Learned counsel for the petitioner, disputing the aforesaid statement of learned counsel for the respondent that the review is pending and no possession has been handed over to the petitioner insofar as shop in possession of Jane Alam is concerned, stated that the contention regarding pendency of review is out of the record. 9. In the totality of circumstances, I do not find any legal infirmity or jurisdictional error in the orders impugned herein. I do not find that finding of facts are perverse in nature so as to attract exercise of powers under Article 226 of the Constitution of India. 10. 9. In the totality of circumstances, I do not find any legal infirmity or jurisdictional error in the orders impugned herein. I do not find that finding of facts are perverse in nature so as to attract exercise of powers under Article 226 of the Constitution of India. 10. In case the statement of learned counsel for the respondent regarding possession of Jane Alam that the same is still with Jane Alam, pursuant to the judgment dated 12.5.2017 passed in SCC suit, in the shop concerned is incorrect, the petitioner is at liberty to file recall application with cogent evidence within 15 days. 11. Insofar as second prayer of the petitioner is concerned, undisputedly, an application for allotment has been filed by the tenant-petitioner, which is still pending and is yet to be considered by the authority concerned on its own merits and as such, there is no occasion to issue any such direction as prayed for. 12. In the totality of circumstances, I do not find any good ground to interfere in the orders impugned herein. Present petition is devoid of merits and is accordingly dismissed.