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2018 DIGILAW 923 (ALL)

GIRRAJ KISHOR v. RAMESHWAR PRASAD SHARMA

2018-04-16

SANGEETA CHANDRA

body2018
JUDGMENT : Mrs. Sangeeta Chandra, J. This petition under Article 227 of the Constitution of India has been filed by the petitioner challenging the order dated 16.02.2018 passed by the Appellate Authority-Additional District Judge, Court No. 5, Agra in Rent Control Appeal No. 45 of 2014 (Rameshwar Prasad Sharma v. Ashok Bhatnagar and another) insofar as it sets aside the order passed by the Prescribed Authority on 03.04.2014 rejecting the Release Application for the shop in question in House No. 17/260 Chhili Int Road, Agra. 2. Learned counsel for the petitioner has submitted that the Prescribed Authority had dealt with the issue of bonafide need and has found the need of the landlord-respondent No. 1 herein, as neither genuine nor urgent. The Prescribed Authority in its order has observed that the applicant, respondent No. 1 herein had a house of his own as well as two houses adjoining to it, therefore it could not be said that the house the tenant was currently occupying i.e. House No. 17/260 Chhili Int Road, Agra was in a dilapidated condition, which needed to be demolished including the shop, which the petitioner was occupying to build a house of his own for the residence of his niece and nephew along with him. The landlord could not lead sufficient evidence with regard to the need expressed regarding construction of Garage in the shop in question for the purposes of housing the car given to him by his nephew. The Prescribed Authority came to the conclusion that from documentary evidence of receipt of rent of Garage taken outside the premises at the rate of Rs. 800/- per month, and despite the Toll Tax receipt and receipt for purchase of petrol, it could only be established that the car was being used by the applicant, but it did not make out any case that the car in question was actually given by the nephew to the applicant to be kept by him in his own house. 3. Learned counsel for the petitioner has argued further that the Prescribed Authority rightly came to the conclusion that bonafide need could not be established. It has however, also looked into the comparative hardship of the petitioner, who runs a small tea stall in 8' X 7' feet shop. 3. Learned counsel for the petitioner has argued further that the Prescribed Authority rightly came to the conclusion that bonafide need could not be established. It has however, also looked into the comparative hardship of the petitioner, who runs a small tea stall in 8' X 7' feet shop. The Prescribed Authority came to the conclusion that the landlord Rameshwar Prasad Sharma was unmarried and issueless and he already had three houses in his ownership, namely, House No. 17/260, House No. 17/261 and House No. 17/263 all adjoining the disputed premises. Therefore, there was no need for him to build a new residential House No. 17/262 by demolishing the old structure and making new construction including a garage in place of tea shop. 4. On the other hand, the Appellate Authority has wrongly observed that the bonafide need of the landlord was well established as he was an old and infirm person, who was unmarried and issue-less, and therefore, dependent upon the care bestowed upon him by his nephew and niece. He had a car that was given to him for his personal use by his nephew, which car could not be housed in the current premises being used as residence by the landlord, and therefore, had to be housed in a Garage taken on rent at the rate of Rs. 800/- per month in another building/a widows home being run by a Trust. 5. Mr. Ramendra Asthana, learned counsel for the respondent on the other hand has pointed out from the order passed by the Prescribed Authority and also from the order passed by the Appellate Authority that repeatedly it has come on record that the applicant is an old person, who is unmarried and issueless and is dependent upon the care given by his nephew and niece, therefore he wished to live along with niece and nephew in one single house. Although his nephew and niece live in adjoining houses, they do not live in the same premises. Moreover, the car that is being used by him has been gifted by his nephew actually and for housing of the said car a garage is needed. Since house in question, in which the landlord presently lives, is situated in a narrow by-lane, the car cannot be kept by him near his residence. Moreover, the car that is being used by him has been gifted by his nephew actually and for housing of the said car a garage is needed. Since house in question, in which the landlord presently lives, is situated in a narrow by-lane, the car cannot be kept by him near his residence. On the other hand, the shop in question is situated on the main road, and if the whole of the House No. 17/260 is demolished and new construction takes its place, then the landlord would certainly be much more convenienced looking to his advance age. 6. I have considered the argument made by the learned counsel for the petitioner. I find that the learned counsel for the petitioner has repeatedly referred to the arguments raised before the Prescribed Authority, which have not been considered with regard to the car not being owned by the landlord, and not being in personal use of the landlord at all. He had questioned the receipts of purchase of petrol or toll tax and questioned the rent receipts issued by the Mrs. Emma Lucksted Trust for Destitute Widows, where the landlord currently allegedly housed this alleged car. 7. Learned counsel for the tenant has relied upon the judgment rendered by the Hon'ble Supreme Court in Narbada Devi Gupta v. Birendra Kumar Jaiswal and another, reported in AIR 2004 SC 175 , where it has been held by the Supreme Court that mere production before and marking of a document as an exhibit by the Court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence, that is, by the evidence of those persons who can vouchsafe for the truth of the facts in issue. 8. It is the contention of the learned counsel for the tenant that neither the nephew was examined nor the driver, who allegedly drove the car in question nor even the Manager of the destitute home for widows, who had issued the rent receipts to prove the same. 9. This Court finds substance in the argument raised by the learned counsel for the petitioner, but at the same time, this Court also finds from perusal of the issue framed before the Prescribed Authority that no such dispute was ever raised, nor the issue framed in this regard before the Prescribed Authority. 10. 9. This Court finds substance in the argument raised by the learned counsel for the petitioner, but at the same time, this Court also finds from perusal of the issue framed before the Prescribed Authority that no such dispute was ever raised, nor the issue framed in this regard before the Prescribed Authority. 10. Initially, when the Release Application was allowed, the petitioner had approached this Court by filing Writ Petition No. 5867 of 2017, which was decided by this Court on 20.08.2017. The order of the Appellate Authority dated 19.07.2017 in Rent Control Appeal No. 45 of 2014 was set aside and the matter was remanded for decision afresh on the issues that left to be addressed by the order of the Appellate Authority earlier. 11. This Court having issued specific directions with regard to the issue of rent receipts and other evidence having not been addressed to at all and the whole of the appellate order being concentrated only on the accommodation and the tenancy of the proforma respondent, Shri Ashok Bhatnagar. This Court had remanded the matter. These questions have not been addressed to by the Appellate Authority even in the subsequent order dated 16.02.2018. 12. Consequently, impugned order is set aside. The matter is remanded to the Appellate Authority for consideration afresh with regard to issue raised regarding admissibility of rent receipts relating to petrol being purchased by the landlord, and the contention of the tenant that the car No. UP 80 T 7940 was in fact being used as a taxi and was not being used for personal benefit of the landlord. 13. The Appellate Authority shall also look into the contention of the tenant that he has no other establishment except for the small tea shop that he runs in the premises in question. The Appellate Authority shall give specific finding with regard to the comparative hardship also of the tenant while passing a fresh order in this regard. 14. It is expected that since the matter is old and both the tenant and the landlord themselves are more than 70 years of age, the Appellate Authority shall decide the matter, as expeditiously as possible, say within a period of three months from the date a certified copy of this order is produced before him. 15. With the aforesaid observation/direction, the petition is disposed of.