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2021 DIGILAW 1188 (ALL)

Kalyan Singh v. Anuj Bhushan Mittal

2021-10-05

SIDDHARTH

body2021
JUDGMENT : Siddharth, J. 1. Heard Shri Agnivesh, learned counsel for the petitioner and Shri Raj Kumar Kesari, learned counsel for the respondents. 2. This writ petition has been filed praying for quashing of the judgement and order dated 22.2.2021 passed by District Judge, Hapur in Rent Control Appeal no. 04 of 2019 and order dated 14.8.2019 passed by the Prescribed Authority/Civil Judge (S.D.), Ist, Hapur in P.A. Case No. 6 of 2017(Anuj Bhushan Vs. Kalyan Singh). 3. The landlord /respondent filed an application under section 21(1) (a) of U.P. Act No. 13 of 1972 before the Prescribed Authority praying for release of shop no. W-28/510 (1) Gandhi Ganj, Hapur for the need of his son Nitesh Mittal for doing business of Graphics. The landlord is doing business of Graphics in southern portion of the shop in dispute and wants the shop in dispute to be vacated for independent business of his son. He has got a firm registered as “Nitesh Enterprises” registered in different departments for the business of his son in June 2016. There is no other accommodation available to him for the business of his son, who is not getting married because of lack of independent business. The tenant is running a shop of tailor in the name of “Asha Tailor”. The needs of the landlord is genuine and bonafide. Tenant does not need the shop in dispute. Hence his release application may be allowed. 4. The tenant/ respondent filed his written statement stating that he is tenant of the shop in dispute since the year 1983 and it is the only source of livelihood of the tenant and his family. Earlier shop was let out @ Rs.250/-per month but now its rent is Rs.1500/-per month. It is in his knowledge that landlord respondent alongwith disputed shop has two more shops, stairs and two rooms above them. One big godown and residential accommodation behind the same. The landlord has got room vacated from the tenant for business but this fact has been concealed in the release application. He is doing business with his son and has got the firm registered in the name of his son only to show his bonafide need, when there is no such firm in existence. The landlord has got room vacated from the tenant for business but this fact has been concealed in the release application. He is doing business with his son and has got the firm registered in the name of his son only to show his bonafide need, when there is no such firm in existence. The tenant/petitioner has four sons and two of themare working in his tailoring shop and they and their families are dependent on the shop in dispute.The tenant-petitioner got his written statement amended and pleaded that after filing his evidence he has come to know that in building of the disputed shop, there is one shop facing south vacant, which is owned by the landlord. The son of the landlord can easily do his business in the aforesaid shop. In case the aforesaid vacant shop is not suitable for the business of the landlord then tenant petitioner is willing to vacate the present shop and shift into the other vacant shop as per Rule 16(2) (c) of U.P. Urban Building(Regulation of Letting, Rent and Eviction) Rules,1972. He prayed that release application may be dismissed since there is no bonafide need of the landlord regarding shop in dispute. 5. The Prescribed authority by the impugned order dated 14.8.2019 allowed the release application of the landlord/respondent No.1 holding that since the need of the educated unemployed son of the landlord has been set up in the release application, the release application deserves to be allowed. 6. The prescribed authority found that the son of the landlord cannot be compelled to do business jointly with his father. It further found that landlord is free to use his property as he likes, tenant can not dictate him in this regard. The prescribed authority, therefore, recorded the finding that the need of the landlord is bonafide and genuine. 7. The prescribed authority further found that tenant/petitioner has made no effort to search alternative accommodation and decided the question of comparative hardship in favour of the landlord that he has no other vacant accommodation for the business of his son. 8. The appellate authority has confirmed the order of the prescribed authority agreed with the findings recoded by the Prescribed authority regarding bonafide need and comparative hardship of the landlord. 9. Learned counsel for the tenant-petitioner has submitted that need of the tenant was more as compared to the need of the landlord-respondent. 8. The appellate authority has confirmed the order of the prescribed authority agreed with the findings recoded by the Prescribed authority regarding bonafide need and comparative hardship of the landlord. 9. Learned counsel for the tenant-petitioner has submitted that need of the tenant was more as compared to the need of the landlord-respondent. The landlord is owner of the three shops including the shop in dispute, but the courts below have failed to ascertain the correct facts of the application of the petitioner by issuing commission for the above purpose. Application of the tenant for issuing commission was rejected by the court below illegally. Petitioner gave offer to the landlord that he will shift his business in his third shop but he did not agreed to the same. The finding recorded regarding bonafide need of land and comparative hardship of the respondent is not in accordance with law. 10. Learned counsel for the landlord-respondent has submitted that landlord -respondent stated in paragraph-6 of the release application that he has no vacant accommodation and has taken a shop on rent of Rs.4,000/-per month for his business. He has further submitted that landlord needed the accommodation for business of his educated son who has obtained the degree of M.B.A.. and tenant cannot dictate the landlord about the use of accommodation in dispute. 11. After hearing the rival contentions this court finds that once the landlord has proved his bonafide need to the satisfaction of the two courts, the choice of accommodation which would satisfy the requirement of landlord should be left to his discretion. The court can not impose its choice on the landlord. In the case of Akhileshwar Kumar and others Vs. Mustaqim and others (2003) (1) SCC 462, the apex court has held that only rider is that choice of the landlord should be reasonable and not whimsical. This court finds that both the court belows have considered the bonafide need and choice of the landlord regarding shop in dispute in correct perspective and concurrent findings of the court below cannot be interfered by this court even if another view is possible. The finding regarding comparative hardship of the parties is also rightly recorded by both the courts below. 12. In view of the above consideration orders impugned in this present petition do not call for any interference. 13. The petition lacks merit and is hereby dismissed. 14. The finding regarding comparative hardship of the parties is also rightly recorded by both the courts below. 12. In view of the above consideration orders impugned in this present petition do not call for any interference. 13. The petition lacks merit and is hereby dismissed. 14. However considering the fact that tenant-petitioner is old tenant since before 1983,he is granted one year's time to vacate the shop, subject to giving undertaking before the prescribed authority within two weeks that he will deliver the peaceful and vacant possession of the shop in dispute on or before 4.10.2022. He shall also pay the rent @ Rs. 1500/-per month during the aforesaid period of one year by 7th day of every month. 15. In case of default in compliance of any of the above conditions, the direction of one year’s occupation of disputed shop in favour of the tenant-petitioner shall stand vacated and the landlord-respondent would be free to execute the order passed by the prescribed authority in accordance with law.