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Allahabad High Court · body

2018 DIGILAW 848 (ALL)

SANJEEV SHARMA v. NAND LAL

2018-04-09

SANGEETA CHANDRA

body2018
JUDGMENT : Sangeeta Chandra, J. This application has been filed under Article 227 of the Constitution challenging the order dated 1.5.2017 passed by the Additional Chief Judicial Magistrate, Court No. 3 in P.A. Case No. 26 of 2014 (Nand Lal & others v. Sanjeev Sharma & others) and the order dated 26.2.2018 passed by the Additional District Judge in Rent Control Appeal No. 11 of 2017. 2. The learned Courts below have not been impleaded as parties. 3. Sri Anoop Trivedi, learned counsel for the petitioner prays for and is granted liberty to implead the learned Courts below in the array of parties as proforma respondents during the course of the day. 4. I have heard Sri Anoop Trivedi for the petitioner and Sri Ashish Kumar Singh for the landlord-respondent. 5. The case set up by the learned counsel for the petitioner is that initially one Ram Shankar Gupta, who is the grand father of the respondents herein had filed a release application in 1979 setting up the need for establishing his two sons in the shop occupied by the petitioner's mother. The release application was dismissed on 16.4.1983. The Appeal filed by Ram Shankar Gupta was also dismissed on 10.1.1986 by the learned Additional District Judge, Allahabad. 6. Challenging the aforesaid two orders, the landlord - Ram Shankar Gupta preferred a Misc. Writ Petition bearing No. 2817 of 1986. The writ petition remained pending and ultimately the parties resolved the dispute amongst themselves amicably and filed their compromise application jointly signed by the parties before this Court, in which compromise application a map of the shop in dispute was also filed. 7. The copy of the affidavit filed in support of the compromise application has been filed at page No. 92 onwards of this petition and the learned counsel for the petitioner has referred to paragraphs 4 and 10 of the said affidavit. 8. In paragraph 4, it has been mentioned that the tenant has agreed to vacate 2 feet 4 inches wide space excluding the width of partition wall of 4 inches from the southern side of the shop facing Johnstonganj Road towards the lane adjacent to the shop in dispute, within a period of one month from the date of order of this Court. 9. 9. In paragraph 10 of the affidavit, it was specifically stated that after getting the portion release by way of present compromise the need of the landlord would stand satisfied and the landlord would not claim any release on the basis of "present need" for at-least next 20 years. 10. Learned counsel for the petitioner has also referred to the order passed by this Court on 13.12.2005 disposing of the writ petition on the basis of compromise application that it has been agreed that the remaining portion having frontage of 7 feet 4 inches and depth of 13 feet 6 inches will continue to be in the tenancy of the tenant and for the next 20 years no release application will be filed by the landlord in respect of the portion which is being left in the occupation of the tenant. 11. Learned counsel for the petitioner has pointed out the map of the disputed property filed at page No. 99 of the paper book to show that the tenant thereafter released 2 feet 4 inches wide and 13 feet 6 inches long strip of space in the shop and the sons of Ram Shankar Gupta set up their independent business on the same. 12. In pursuance of the order passed by this Court on 13.12.2005, the petitioner having vacated a part of the shop in question was carrying on the business of selling watches in the rest of the portion left to him. 13. A release application was filed by Nand Lal son of late Ram Shanker Gupta and Rohit Gupta and Mohit Gupta both sons of Kanhaiya Lal (since deceased) in which release application, registered as P.A. Case No. 26 of 2014, it was mentioned that in half portion of the area in pursuance of the compromise entered in the year 2005, the plaintiff No. 2 is running a tea stall in the other half. Plaintiff No. 3 is selling Mobile Phones and the applicant No. 1 - Nand Lal has been carrying on his cloth business door-to-door on pheri and there is no commercial space available for him. 14. Counsel for the petitioner submits that the respondents did not disclose in the release application, the facts relating to the earlier round of litigation and the compromise application filed before this Court. 14. Counsel for the petitioner submits that the respondents did not disclose in the release application, the facts relating to the earlier round of litigation and the compromise application filed before this Court. The petitioner filed a written statement in which he brought before the learned Court below facts mentioned in paragraph 6 and paragraphs 18 to 29 relating to earlier round of litigation between the parties and on the basis of such objections, an issue was framed by the learned Court below. 15. Learned Court below has wrongly interpreted the word "present need" that has been mentioned in paragraph 10 of the affidavit of compromise filed before this Court to hold that the need at the time when the compromise was filed at the behest of Ram Shanker Gupta - the predecessor-in-interest of the respondents, cannot be said to bind the parties forever. 16. Moreso, when on admission of parties themselves, the tenant has a commercial property in the city of Allahabad at Lowther Road and he has also given an offer to the respondents that he shall give them 13' 6" x 6' wide space for setting up shop at the rate of Rs. 200/- per month at the said commercial premises i.e. 25-B Lowther Road, Allahabad; and he may not be forced to vacate disputed property currently held by him. 17. Learned counsel for the petitioner emphasised on the undertaking given before this Court by way of compromise, which became part of the order of the Court dated 13.12.2005, to say that since there was an undertaking not to disturb the tenant for another 20 years, no release application could have been filed in 2014 by the respondents. 18. It was also emphasised by the learned counsel for the petitioner, Sri Anoop Trivedi that there is no mention of earlier round of litigation at all in the release application. 19. However, from a perusal of the release application filed by the respondents, this Court finds that there is a specific mention of the compromise entered into in 2005 on the basis whereof 2' 4" x 13' 6" ribbon Like space was vacated of the shop held by the tenant and this long strip of space was being utilised by Mohit Gupta and Rohit Gupta, to set up their tea shop and the shop selling Mobile Phones. 20. 20. Counsel for the respondents on the other hand has argued before this Court that when the release application was filed by Ram Shanker Gupta father of respondent No. 1 in 1979, he had disclosed the need of setting up his two sons Kanhaiya Lal and Gopal Ji in business as they were unemployed. 21. With regard to the need of Kanhaiya Lal and Gopal Ji, the compromise had been entered into and an undertaking given that the need of setting up shop by Kanhaiya Lal and Gopal Ji shall be met by vacation of long strip on the southern side of the shop currently occupied by the tenant. With regard to his other sons, no undertaking was given since it was not required in the earlier round of litigation. Subsequently, Ram Shanker Gupta other son Nand Lal and the sons of Kanhaiya Lal i.e. Mohit Gupta and Rohit Gupta also needed space as they also needed to set up their independent businesses. 22. The learned Courts below have found the need set up by the respondents as bonafide and genuine and therefore directed release of the disputed property by the tenant. This need with respect to other sons of Ram Shanker Gupta could not be met from the long strip of space 2 feet 6 inches wide by 13 feet 6 inches wide that had been vacated by the tenant. 23. Learned Courts below have given concurrent findings of fact also with regard to possession of commercial premises 25-B Lowther Road, Allahabad by the tenant and his offer to vacate a corresponding amount of space in the said commercial premises for the occupation of the respondents. Therefore, the learned Courts below have found the case of the respondents not only to be admissible for bonafide and genuine need, but also on comparative hardship. 24. Learned counsel for the petitioner in rejoinder has submitted that once an undertaking has been given by Ram Shanker Gupta, the predecessor-in-interest of the respondents, the respondents having stepped into the shoes of Ram Shankar Gupta, are bound by the same undertaking and they cannot resile from the same. 25. 24. Learned counsel for the petitioner in rejoinder has submitted that once an undertaking has been given by Ram Shanker Gupta, the predecessor-in-interest of the respondents, the respondents having stepped into the shoes of Ram Shankar Gupta, are bound by the same undertaking and they cannot resile from the same. 25. Learned counsel for the petitioner has also argued that had this compromise not been entered into and had it not been made out to the tenant - the petitioner herein that he would be left alone undisturbed for twenty years, there was no need for him to enter into the compromise at all as the initial Release Application filed by Ram Shanker Gupta in 1997 had been dismissed by the Prescribed Authority on 16.12.1983 and the Rent Control Appeal No. 941 of 1983 was also dismissed on 10.1.1996 and although the writ petition was filed in 1986, no interim orders were passed therein. 26. It is only because the landlord had "held out" to the tenant that he would not be disturbed in future that he had entered into the compromise and now he cannot be disturbed by the respondents allegedly on the ground that they represented different "need" from the "need" expressed by the landlord initially before this Court. 27. I have considered the rival arguments and I find from a perusal of the order impugned no factual or legal infirmity. 28. Learned Courts below have considered the submissions made by the learned counsel for the tenant and found that the compromise was only with regard to the "present need" i.e. of the year 2005 of the landlord in so far as his two sons Kanhaiya Lal and Gopal ji were concerned. The need of the grandsons who came much later, and one other son Nand Lal remained to be addressed and there could have been no compromise entered into the between the erstwhile landlord - Ram Shanker Gupta with regard to unforeseen need that would arise in future. 29. Hon'ble Supreme Court in the case of Mohd. Ayub v. Mukesh Chand 2012 (2) SCC 155 has observed in paragraphs 10 & 11 thus:- "10. Section 21(1) (a) of the U.P. Act provides for eviction of a tenant on the ground of bona fide requirement of the landlord. 29. Hon'ble Supreme Court in the case of Mohd. Ayub v. Mukesh Chand 2012 (2) SCC 155 has observed in paragraphs 10 & 11 thus:- "10. Section 21(1) (a) of the U.P. Act provides for eviction of a tenant on the ground of bona fide requirement of the landlord. The fourth proviso thereof states that the Prescribed Authority shall take into account the likely hardship to the tenant from the grant of the application as against the likely hardship to the landlord from the refusal of the application and for that purpose shall have regard to such factors as may be prescribed. 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 subsection (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 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." and has gone on to consider earlier binding precedent on the ratio of the judgment in Ganga Devi v. District Judge, Nainital 2008 (7) SCC 770 and Rishi Kumar Govil v. Maqsoodan 2007 (4) SCC 465 to observe that the length of the period of the tenancy as provided under clause (a) of sub rule 2 of Rule 16 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 is only one of the factors to be taken into account in context with other factors and circumstances of the case and cannot be a sole criteria or deciding factor to order or not to order eviction. 30. The Hon'ble Supreme Court went on to observe in paragraph 15 thus:- "----------- It is well settled the landlord's requirement need not be a dire necessity. 30. The Hon'ble Supreme Court went on to observe in paragraph 15 thus:- "----------- 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." 31. The Hon'ble Supreme Court further observed in paragraph 18 thus:- "---------- In our opinion, the hardship appellants would suffer by not occupying their own premises would be far grater than the hardship the respondent would suffer by having to move out to another place. We are mindful of the fact that whenever the tenant is asked to move out of the premises some hardship is inherent. We have noted that the respondent is in occupation of the premises for a long time. But in our opinion, in the facts of this case that circumstance cannot be the sole determinative factor. That hardship can be mitigated by granting him longer period to move out of the premises in his occupation so that in the meantime he can make alternative arrangement." 32. Since, in this case it is apparent that the landlord already has in his possession commercial property situated at 25-B Lowther Road, Allahabad and therefore the observations of the Hon'ble Supreme Court with regard to ground of longer period of time for making alternative arrangements as made in the judgment rendered in Mukesh Chand (supra) would not apply. 33. This Court therefore does not find any good ground to show any interference in this application moved under Article 227 of the Constitution. 34. The application is dismissed. 35. No order as to costs.