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2018 DIGILAW 491 (UTT)

SANDEEP AGARWAL v. PUSHPA BANSAL

2018-12-07

SHARAD KUMAR SHARMA

body2018
JUDGMENT Hon'ble Sharad Kumar Sharma, J (Oral) The petitioners, who are tenants, have challenged the judgment dated 09.10.2018 rendered by the Additional District Judge, 6th in Rent Control Appeal No. 67 of 2011 ‘Smt. Pushpa Bansal vs. Sandeep Agarwal and Others' under Section 22 of U.P. Urban Building (Regulation of Letting Rent and Eviction) Act, 1972. In short, the tenancy over the tenement in question, which constitutes to be a shop bearing Municipal description BBC Building, Kulribazar, Mussoorie, District Dehradun, was sought to be released by the respondent/landlord by filing a release application after invoking provisions contained under Section 21(1)(a) of U.P. Urban Building (Regulation of Letting Rent and Eviction) Act, 1972, which was registered as PA Case No. 3/1995 ‘Pushpa Bansal vs. Sandeep Agarwal'. 2. In the release application, thus filed on 28.02.1995, it was contended that the tenancy over the tenement was created by the predecessors of the present respondent on a month to month basis, ever since prior to 1975. Later, the landlord felt the need because one of his son Ajay, who did not have any interest to pursue his studies, was to be engaged in Hosiery business and also that they have to meet the expenditure of the family because one of the daughters, who has been divorced and has also got two children are staying with the family. 3. This release was opposed by the present petitioner/tenant contending thereof that the landlord has got sufficient other accommodation and there is no need as such, and because they contended that their son Ajay Agarwal for whom the need has been expressed is already running a hardware shop at Raja Road, Dehradun, and has got sufficient turnover and there is sufficient income in the family and the need as projected is untenable. 4. Looking to the pleadings raised in the written statement/objection to the release application besides denying the pleadings of the release they contended that shop carries annual rent of ‘1800 per annum and the residential flat, which is the subject matter of release in the other connected petition carries a rent of Rs. 450/-. They further contended that looking to the extent of business, which the tenant has, his need is more heart pressing as compared to that of landlord and hence, the release deserves to be rejected. 5. 450/-. They further contended that looking to the extent of business, which the tenant has, his need is more heart pressing as compared to that of landlord and hence, the release deserves to be rejected. 5. On scrutiny of the written statement as filed by the petitioner, it nowhere makes any pleading to the effect that after filing of the release in 1995 the petitioner/tenant had ever made any sincere efforts to look for an alternative accommodation, wherein, he could accommodate himself and in the absence of there being any such pleading of making any efforts to look for an alternative accommodation as per the recognized principles of law the need of the landlord has to be inferred to be bonafide and the release deserves to be allowed. 6. The case proceedings before the prescribed authority and after the exchange of pleadings the release application was rejected by the prescribed authority by the judgment dated 18.06.2011. This judgment of the prescribed authority rejecting the release was put to challenge in the Rent Control Appeal No. 67 of 2011 ‘Pushpa Bansal vs. Sandeep Agarwal & Others' and the Appeal of the landlord/respondent has been allowed, and as a consequence thereto, the direction has been issued to the petitioner/tenant to vacate the premises against which the present Writ Petition has been filed. 7. The argument of the learned counsel for the petitioner is that the pleading, which has been raised in the objection and the case as it was built up by the landlord in the release application, which has been rather magnified by the Appellate Court beyond the scope of the pleadings of the release application itself, which cannot be done as the Appellate Court cannot step into the shoes of the landlord and to make out a case for him. 8. Further, it has been argued that the pleading raised by the landlord to the effect that the tenement in question is being occupied by his employees and he himself is residing in Delhi. There is no affidavit, which has been brought on record, to substantiate the same, rather he has pleaded that this plea is contrary to records. He has contended that he himself is conducting the business and, looking to the length of tenancy, which exists in 1975, he has developed a good will and, thus, he has more heart pressing and bonafide need. 9. He has contended that he himself is conducting the business and, looking to the length of tenancy, which exists in 1975, he has developed a good will and, thus, he has more heart pressing and bonafide need. 9. What has been reflected from the impugned order under challenge is that the tenant has looked for an alternative accommodation since the proceedings has been initiated since 1985. The finding, which has been assailed by the petitioner, as recorded by the Appellate Court pertaining to the perversity and widening the scope of the Appellate jurisdiction, on scrutiny of the impugned judgment is not made out and, the reason which has been assigned by the Court pertaining to the bonafide need and operative hardship a proper conclusion has been drawn in favour of the landlord/respondent. 10. At this stage, after hearing the learned counsel for the parties at length, the tenant/petitioner, who is present before this Court, has made a statement through his counsel that he is willing to vacate the premises within a period of two years from today. Considering the undertaking extended by the tenant to vacate the premises, this Court is refraining itself to make any further observation with regards to the merits of the matter. Hence, this Writ Petition is dismissed subject to the liberty given to the petitioner that if he submits an undertaking before the prescribed authority within a period of one month from today, giving undertaking to the effect that he will vacate the premises and hand over the vacant possession to the respondent/landlord within the aforesaid period, the execution of the Appellate Court's judgment dated 09.10.2018 would be kept in abeyance for a period of two years. 11. In an event if the vacant and peaceful possession is not handed over, it will be open for the respondent/landlord to execute the judgment dated 09.10.2018 in accordance with law. During this period the tenant/petitioner will pay the rent to the landlord by 10th of each month. 12. Subject to the above observation, this Writ Petition stands dismissed. 13. There will be no order as to cost.