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2019 DIGILAW 162 (ALL)

RAMESH KUMAR v. KELAWATI (DECEASED)

2019-01-22

MANOJ KUMAR GUPTA

body2019
JUDGMENT & ORDER : MANOJ KUMAR GUPTA, J. 1. By means of the instant petition under Article 226 of the Constitution the petitioner has called in question the order dated 10.1.2017 passed by Prescribed Authority in P.A. Case No. 3/1991 and the order dated 17.10.2018 passed by IIIrd Additional District Judge, Amroha in Rent Control Appeal No. 1/2017. 2. Although the proceedings arises out of a release application filed by the respondent-landlady under Section 21(1)(a) of U.P. Act No. 13 of 1972 (for short 'the Act'), but the case has a chequered history. The release application was filed by the landlady Smt. Kelawati, deceased, in the year 1991, setting up need of Rajendra Kumar, her eldest son for establishing him in business of selling medicines. The release application was dismissed by the Prescribed Authority by order dated 29.9.1995.The matter was carried in appeal, but the appeal also came to be dismissed by order dated 29.9.1998. Aggrieved thereby, the respondent-landlady Smt. Kelawati filed Writ Petition No. 5099 of 1999 before this Court, which was allowed by judgment dated 30.3.2006. The Court allowed the release application holding the need of Rajendra Kumar for the shop in dispute to be genuine and bona fide and that he would suffer greater hardship in case, the shop is not released in his favour. The petitioner carried the matter in Special Leave Petition before the Supreme Court. The Supreme Court granted leave and the Special Leave Petition came to be registered as Civil Appeal No. 2559 of 2008. The Supreme Court allowed the appeal by order dated 7.4.2008 and set-aside the judgment of the High Court on the ground that certain fresh evidence was brought on record before the writ Court and upon which reliance was placed in allowing the release application, though the proper course for this Court should have been to remand the matter to the Prescribed Authority to take into consideration the documents filed for the first time before the writ Court. Pursuant to the judgment of the Supreme Court dated 7.4.2008, the matter was again taken up for consideration by the Prescribed Authority and it allowed the release application by judgment and order dated 5.5.2011. Aggrieved thereby, the petitioner-tenant filed an appeal under Section 22 of the Act. Pursuant to the judgment of the Supreme Court dated 7.4.2008, the matter was again taken up for consideration by the Prescribed Authority and it allowed the release application by judgment and order dated 5.5.2011. Aggrieved thereby, the petitioner-tenant filed an appeal under Section 22 of the Act. The appeal filed by the petitioner-tenant was allowed by the Appellate Court by order dated 19.1.2016 and the matter was remitted to the Prescribed Authority for considering certain affidavits and documentary evidence filed by the parties before the Appellate Court. In consequence, once again the matter was taken up for decision by the Prescribed Authority, which by impugned order dated 10.1.2017 allowed the release application. Aggrieved thereby, the petitioner filed an appeal, which has been dismissed by impugned judgment and order dated 17.10.2018. 3. The basic facts, which are not in dispute, are that the respondent-landlady (since dead) had three sons. The eldest son is Rajendra Kumar in respect of whose need the release application was filed against the petitioner. At the relevant time, the other two sons were studying. Apart from the disputed shop, there are two other shops in the same building. One of the shops was in possession of the husband of the landlady from where he was doing his business after retirement. The third shop was in possession of another tenant. The husband of the landlady died during pendency of the proceedings. It is also an admitted fact on record that the other shop, which was in possession of another tenant was vacated by him. Thus, two shops in vacant condition became available to the landlady. The landlady settled her sons Devendra Kumar and Satyendra Kumar in these shops, as by that time, they had completed their education and were sitting idle. Devendra Kumar started business in one of the shops in the name of M/s. Varun Communications whereas, Satyendra Kumar started doing business in the other shop in the name of M/s. Varun Tiles. 4. In the aforesaid backdrop, the Prescribed Authority proceeded to decide the release application. It held that the need of Rajendra Kumar still subsists, as two other shops which became available came to be occupied by Devendra Kumar and Satyendra Kumar, his two younger brothers, in settling themselves in independent businesses. It was found that Rajendra Kumar was still not having any permanent business and his need for starting medicine shop still subsists. It held that the need of Rajendra Kumar still subsists, as two other shops which became available came to be occupied by Devendra Kumar and Satyendra Kumar, his two younger brothers, in settling themselves in independent businesses. It was found that Rajendra Kumar was still not having any permanent business and his need for starting medicine shop still subsists. The plea taken by the petitioner-tenant that Rajendra Kumar had started doing business of money transfer and sale and purchase of properties from a room in the residential portion of the building and was also filing Income Tax returns, thus fully employed, was repelled by holding that the same was only an ad-hoc arrangement in anticipation of getting possession of the disputed shop. The Prescribed Authority took note of the fact that the basic need set-up in the release application was that Rajendra Kumar being a graduate in Science, would start business as a Chemist. Since the litigation remained pending since the year 1991, and he was having his family to support, therefore, he was forced to take up an alternative chore, which the Court found to be of a temporary nature. The Prescribed Authority held that the fact that Rajendra Kumar had started an alternative business from residential portion of the building rather goes to prove that his need was hard and pressing, but foreseeing delay on account of pending litigation, he was compelled to engage himself temporarily, elsewhere. 5. Another aspect which was also considered by the Prescribed Authority was regarding two other shops becoming available to the landlady during pendency of the proceedings. The first one being the shop occupied by her husband, which upon his death, became vacant and the second shop that was vacated by the other tenant. The Court held that in these two shops, the two younger brothers of Rajendra Kumar, who in the meantime, became major but were unemployed, have settled themselves in independent businesses. The fact that these shops are no more vacant but are in possession of Devendra Kumar and Satyendra Kumar, younger brothers of Rajendra Kumar, is also not disputed by the petitioner-tenant. However, he alleged that since Rajendra Kumar was eldest in the family, therefore, once the shops became available, Rajendra Kumara should have been settled in those shops instead of aforesaid shops being handed over to younger brothers. However, he alleged that since Rajendra Kumar was eldest in the family, therefore, once the shops became available, Rajendra Kumara should have been settled in those shops instead of aforesaid shops being handed over to younger brothers. The above plea was also repelled by the Prescribed Authority by holding that it is a matter which was to be decided by the landlady. The petitioner-tenant cannot dictate terms to the landlady, as to how she should satisfy need of her family members. It not being in dispute that the two other brothers have during the pendency of proceedings attained majority and were sitting idle, if given the vacant shops for engaging themselves in independent business, it would in no manner be detrimental to the case set-up in respect of the disputed shop. Since proceedings for release of the disputed shop in favour of Rajendra Kumar were pending, the Prescribed Authority did not find any mala fide on part of the landlady in setting up her other two sons in the shops coming in her possession. The Appellate court has affirmed the findings recorded in this regard by the Prescribed Authority. 6. Sri Divakar Rai Sharma, learned counsel for the petitioner reiterated the same contention, which was raised before the Prescribed Authority. It is urged that two shops having become available to the landlady during pendency of the proceedings, Rajendra Kumar should have started business from those shops instead of the same being given to his younger brothers. This Court does not find any force in the said submission, as it totally endorses the findings recorded by the Prescribed Authority, while repelling the said contention. 7. The findings recorded by the Courts below are pure findings of fact and brook no interference in exercise of writ-jurisdiction. The release application had remained pending since the year 1991 and time has come where the litigation should be given a quietus. The writ petition lacks merit and is dismissed.