HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 7 Case :- WRIT - A No. - 19098 of 2011 Petitioner :- Haji Ansar Ahmad Respondent :- Kunwar Khusro Irshad Petitioner Counsel :- S/Sri Adil Jamal,P.K. Jain and Sri Jamal Ali Respondent Counsel :- Pramod Jain Hon'ble Rakesh Tiwari,J.
Heard learned counsel for the parties and perused the record. The facts of the case in brief are that a release application under Section 21(1)(a) of U.P. Act No. XIII of 1972 was moved by the landlord respondent in the Court of Civil Judge (Senior Division)/Prescribed Authority, Baghpat. It was registered as P.A. No. 2 of 2008. The application was contested by the petitioner tenant by filing written statement denying the plaint allegations. After exchange of affidavits, documents were filed by the parties and an application for appointment of Civil Court Amin was also moved by the petitioner which was allowed. The Amin after inspection filed his report alongwith map of the spot which is appended as Annexure 4 to the writ petition. The Prescribed Authority allowed the release application holding that the alleged shop under the tenancy of the petitioner is infact a garage; that need of landlord was bona fide and he would suffer greater hardship if the alleged shop/garage is not released in his favour and that the tenant had three other shops in his possession where he is doing his business apart from the alleged shop in dispute.
Aggrieved by the order and judgment dated 13.8.2010 passed by the Prescribed Authority the petitioner preferred rent control appeal no. 39 of 2010 before the appellate court under Section 22 of the U.P. Act No. XIII of 1972. He also filed certified copies of the assessment registers of two residential houses of respondent and voter list of district Meerut alongwith application dated 15.11.2010 under Order XLI Rule 27 C.P.C. In rebuttal, respondent filed the voter list of district Baghpat. and voter list of Meerut. The appellate court also after hearing parties dismissed the appeal vide judgment and order dated 18.3.2011.
The petitioner has then preferred this writ petition challenging the validity and correctness of the two orders aforesaid dated 13.8.2010 passed by the Civil Judge (Senior Judge)/Prescribed Authority, Baghpat in P.A. No. 2 of 2008 (Kunwar Khusro Irshad vs. Haji Ansar Ahmad) as well as the judgment and order dated 18.3.2011 passed by Additional District Judge (Special), Baghpat in Rent Control Appeal no. 39 of 2010 (Hazi Ansar Ahmad vs. Kunwar Khusro Irshad) and praying for their quashing.
Learned counsel for the petitioner relied upon the judgment passed by appellate court and has argued that earlier this shop was the in tenancy of one Tufail Ahmad whose name is shown in the house assessment register list of 1967-68 (Paper no. 69-K1) wherein the shop in dispute is registered as shop in the property no. 238/1. He has contended that the nature of the property in dispute was a shop and never a garage as is established from the documents filed by him. Regarding comparative hardship he had submitted that if he is evicted from the shop in dispute his family will suffer greater hardship as without the business in the shop in dispute it would be very difficult for him to maintain his family which is quite large having sons and grand sons. Learned counsel for the petitioner then relied upon the map appended with the report of Amin as annexure 4 to the writ petition and has argued that width for entry in the shop is 7 ft. 7 inches which is too narrow for parking a car in the shop in dispute in which the tenant is engaged in business of sale of polythene bags, ropes and other such miscellaneous items; that the said shop is part of the Haveli of the landlords which has an open space in front of it where the landlord can park his car and the landlord has other properties which also can be used for parking, as such the need of the landlord for using the shop as garage is not bona fide.
Per contra, Sri Pramod Jain, counsel for the respondent argued that from the documents filed before the court below in the form of municipal records it is apparent that the alleged shop is situated in a garage. The landlords are descendents of nawabs and the ladies of the family are pardanasheen women; that a perusal of the map appended with the report of the Amin would show that earlier there were three doors in the garage which were used by the ladies to enter to their respective residential portions in the Haveli after the cars were parked in the garage and this fact is apparent from record (map) and that even today one door D-1 out of the three doors in the garage/alleged shop is still used for entrance in the residential portion of the Haveli.
As regards the contention of the learned counsel for the respondent that the landlord owns properties in Meerut which can be used for parking of the car instead of the garage/shop in dispute, it is submitted that those properties admittedly have open land in front of Haveli and a 'Dharam Kanta' about 3-4 kms. from the Haveli and other properties are situated in another District Baghpat and cannot be used for the purpose of garage. He has submitted that dimension of the garage is shown in the map as 19 ft. 7 inches x 21 ft 7 inches which was earlier used by pardanasheen ladies of the family of the landlord and the tenant is now using it as shop . Hence, the contention of the learned counsel for the petitioner that alleged shop in dispute was never used as a garage is wholly misconceived. According to him this fact is proved from the rent receipts on record showing tenancy of a garage and that as the petitioner had started using it as a shop the rent receipts were issued with endorsement "garage/shop".
As regards the question of hardship is concerned, he submits that tenant has three other independent shops apart from the shop in dispute. He has settled his sons in business in those shops and this fact has not been denied by the tenant. It is also said that in so far as tenancy of Tufail Ahmad is concerned, the petitioner could not prove by evidence that the alleged shop was tenanted out to him prior to the petitioner as neither Tufail Ahmad nor any member of his family were ever examined on oath by the tenant petitioner in support of his case before the courts below to prove this baseless allegation. He lastly submits that circumstances in which the landlord had permitted the petitioner to occupy the garage have now changed and his requirement in the subsequent changed circumstances for the ladies to enter into the house after parking their car in the garage is bonafide.
In rebuttal, learned counsel for the petitioner has submitted that factum that the tenant has three shops apart from aforesaid shop in dispute is conceeded, but the family of the tenant being large and income from all the four shops put together is insufficient for their livelihood, therefore they would suffer greater hardship than the landlord who has sought release of shop for its use as garage on misconceived ground of bonafide need. He also concedes that all the rent receipts issued to the tenant on record establishes that receipt is for garage/shop and that these receipts issued by the landlord are much prior to 1999.
I have heard learned counsel for the parties and perused the record. It appears that the Prescribed Authority had framed three issues, English translation of these issues is thus:-
"(1) Whether need of the applicant for the shop is bona fide?
(2) Whether in the event, the shop is not vacated, the applicant will suffer hardship which could be compensated in terms of money.
(3) Other reliefs.
The Prescribed Authority in response to the first issue has recorded a finding that two shops in which his sons are claimed to be established may be used by the tenant for business as they are closed; that as the petitioner tenant has three more shops apart from the garage/shop in dispute, he would not suffer comparatively more hardship as he had been given a garage on rent which after sometime was used by him for business changing its form to the shop in dispute and thus the endorsements on the rent receipts for garage/shop establishes that they are receipts for garage subsequently used for a shop. As a matter of fact the Prescribed Authority has found that need of the garage by the landlord was genuine and bonafide as it has also come on record that the landlord had three cars and that before giving it on rent to the petitioner it was always used as garage by the landlords which is proved from the Municipal records.
The Appellate Authority has also confirmed the finding recorded by the Prescribed Authority holding that the need of land lord is bona fide and he would suffer greater hardship than the tenant who has three additional shops apart from the shop in dispute. The relevant portion of finding of Appellate Authority in this regard is as under:
"16] loZizFke ;g lqfuf'pr fd;k tk jgk gS fd oknxzLRk fdjk;snkjh okyh lEifRr okLro esa xSjkt gS] tSlk fd izR;FkhZ dk dFku gS fd oknxzLRk lEifRr nqdku gS] tSlk fd vihykFkhZ dk dFku gSA izR;Fkh us tks okni= dkxt la[;k & 4x 2 nkf[ky fd;k gS] mlesa ;g dgk gS fd mldh ,d iwjc eqgkuh gosyh gSA mldk eq[; njoktk uokc te'kSn vyh [kku dh rjQ gSA izkFkhZ dh gosyh ds /kjkry ij izkFkhZ dh dkj dk xSfjt fLFkr gS tks nf{k.k eqgkuh gSA ftldk njoktk lM+d xka/kh cktkj dh rjQ gSA uxj ikfydk ifj"kn] ckxir dh o"kZ 2007&08 dh x`gdj fu/kkZj.k lwph esa mDr gosyh vkSj xSfjt ekSgYyk tSu esa ntZ gSA gosyh dh lEifRr la[;k & 252 gS vkSj xSfjt dh lEifRr la[;k 249 gSA xSfjt dh lhek,a Hkh oknxzLr esa of.kZr gSA blds foijhr vihykFkhZ dk dFku gS fd izR;FkhZ }kjk oknxzLr lEifRr dks tku cw>dj lksp & fopkj ds ckn lkft'k ds rgr xSfjt gksuk dgk gSA tcfd og okLro esa nqdku gSA uxj ikfydk ifj"kn ckxir dh o"kZ 2007&08 dh x`gdj fu/kkZj.k lwph esa xSfjt ds :i esa ugha] cfYd nqdku ds :i esa ntZ gSA ;g oknxzLr lEifRr tks fd okLro esa nqdku gS] dHkh Hkh xSfjt ds :i esa izR;FkhZ ;k mlds iwoZtksa }kjk bLrseky ugha dh xbZA izR;FkhZ }kjk vius mDr dFku ds leFkZu esa uxj ikfydk ifj"kn ckxir ds x`gdj fu/kkZj.k lwph o"kZ 2007&08 dh izekf.kr izfr 8x 2 izLrqr dh gSA ftlesa 249 uEcj ij ;g oknxzLr lEifr nqdku ds :i esa ntZ gSA o"kZ 1986&87 o 1987&88 dh x`gdj fu/kkZj.k lwph 62x 2 izR;FkhZ }kjk nkf[ky dh xbZ gSA ftlesa oknxzLr lEifRr dh la[;kk 333 gS] tks xSfjt ds :i esa ntZ gSA blh izdkj izR;FkhZ }kjk x`gdj fu/kkZj.k lwph o"kZ 1991&92 o 1992&93 nkf[ky dh gSA ftlesa oknxzLr lEifRr dh la[;k [email protected] xSfjt ds :i esa ntZ gSA Li"V gS fd dkxt la[;k 8x 2 esa oknxzLr lEifRr nqdku ds :i esa ntZ gSA dkxt la[;k & 62x o 63x esa xSfjt ds :i esa ntZ gS mDr x`gdj fu/kkZj.k lwph ds vfrfjDr izR;FkhZ dh rjQ ls 'kiFki= 5x vkSj 32x 'kiFki= Hkh izLrqr fd;k gS ftlesa dgk gS fd mDr oknxzLr lEifRr nqdku ugha cfYd xSfjt gS vkSj lnSo ls xSfjt ds :i esa bLrseky gksrh jgh gSA bldk [k.Mu djrs gq, vihykFkhZ rjQ ls dgk x;k gS fd izR;FkhZ /kuoku] cyoku o jktuSfrd igqap okyk O;fDr gSA uxjikfydk ifj"kn ds deZpkfj;ksa ls lkt djds o"kZ 1986&87] 1987&88] 1991&92 o 1992&93 dh x`gdj fu/kkZj.k lwph esa oknxzLr lEifRr dks xSfjt ds :i esa ntZ djk fy;k gSA vius bl dFku ds leFkZu esa vihykFkhZ }kjk 'kiFki= 57x2 o fdjk;s dh jlhnsa [email protected] yxk;r [email protected] tks fd layXud la[;k & 1 yxk;r 32 gS bu fdjk;s dh jlhnksa esa oknxzLr lEifRr [email protected] ds :i esa vafdr gSA oknxzLr lEifRr ds QksVksxzkQ 70d 1 yxk;r 90d1 nkf[ky fd;s gSA ftuds voyksdu ls ;g izrhr gksrk gS fd oknxzLr lEifRr nqdku ds :i esa bLrseky gks jgh gS vkSj mlesa vihykFkhZ dk jLlh] iUuh vkfn dk O;olk; py jgk gSA vihykFkhZ dh rjQ ls ;g Hkh dgk x;k gS fd oknxzLr lEifRr dHkh Hkh xSfjt ugha Fkh vkSj uk gh xSfjt ds :i esa bLrseky izR;FkhZ o mlds iwoZtksa }kjk dh x;hA vihykFkhZ ds iwoZ esa oknxzLr lEifRr esa fdjk;snkj pys vk jgs gSA o"kZ 1967&68 dh x`gdj fu/kkZj.k lwph dkxt la[;k 69d1 nkf[ky dj vihykFkhZ dk dFku gS fd ;g lEifRr la[;k & [email protected] ds :i esa rqQSy vgen dh fdjk;snkjh esa FkhA Li"V gS fd vihykFkhZ oknxzLr lEifRr dks nqdku dg jgk gS vkSj izR;FkhZ oknxzLr lEifRr dks xSfjt dg jgk gSA mHk; i{k }kjk tks dkxtkr nkf[ky fd;s x;s gSa mlls ;g Li"V gksrk gS fd oknxzLr lEifRr nqdku ugha cfYd izkjEHk ls xSfjt gh jgh gksxhA D;ksafd Lo;a vihykFkhZ }kjk tks fdjk;s dh jlhnsa [email protected] yxk;r [email protected] nkf[ky dh x;h gS mlds voyksdu ls Li"V gksrk gS fd o"kZ 1999 ls vihykFkhZ oknxzLr lEifRr esa vadu [email protected]& #i;s ekfld dh nj ls fdjk;snkj gS vkSj ;g oknxzLr lEifRr xSfjt ghs gSA D;ksafd ;fn oknxzLr lEifRr izkjEHk ls nqdku jgh gksrh rks bu fdjk;s dh jlhnksa ij xSfjt vafdr ugha gksrk] ek= nqdku gh vafdr gksrkA izR;FkhZ dh rjQ ls nkf[ky x`gdj fu/kkZj.k lwph o"kZ 1986&87 o 1987&88 rFkk x`gdj fu/kkZj.k lwph o"kZ 1991&92 o 1992&93 esa ;g oknxzLr lEifRr xSfjt ds :i esa gh ntZ gSA vihykFkhZ }kjk nkf[ky dh xbZ mDr fdjk;s dh jlhnsa o"kZ 1999 ls ysdj o"kZ 2001 rd dh gSA blls Li"V gksrk gS fd vihykFkhZ oknxzLr lEifRr esa o"kZ 1999 ls fdjk;snkj gSA ;|fi dh vihykFkhZ dk dguk gS fd og foxr 18 o"kksZa ls oknxzLr lEifRr esa fdjk;snkj gSA ;kfpdk o"kZ 2008 esa nkf[ky dh xbZ gSA ftldk rkRi;Z ;g gqvk fd o"kZ 1990 ls izR;FkhZ dh fdjk;snkjh izkjEHk gqbZ gksxhA o"kZ 1986&87] 1987&88 o o"kZ 1991&92 o 1992&93 dh x`gdj fu/kkZj.k lwph esa oknxzLr lEifRr xSfjt ds :i esa gh ntZ gSA ;g gks ldrk gS fd izkjEHk esa oknxzzLr lEifRr xSfjt ds :i esa Fkh] tc og vihykFkhZ dh fdjk;snkjh esa vkbZ vkSj vihykFkhZ oknxzLr lEifRr dk bLrseky nqdku ds :i esa djus yxk vkSj mldk iz;ksx O;olk; ds fy;s gksus yxk rks x`gdj fu/kkZj.k lwph esa vkxs py dj oknxzLr lEifRr nqdku ds :i esa ntZ gks xbZA ijUrq bldk rkRi;Z ;g ugha gS fd oknxzLr lEifRr dk okLrfod Lo:i xSfjt ds :i esa u gks ;k og izkjEHk ls xSfjt ugha FkhA"
From perusal of the findings recorded by the Appellate Court above, it is apparent that the alleged shop in dispute is in fact a garage and recorded as such in the Municipal records prior to its being taken on rent by the petitioner. It is held by the court below that the petitioner tenant after taking the garage on rent has established business of sale of polythene bags, ropes etc. from it putting the garage to use as a shop. From the house assessments of Nagar Maha Palika Parishad of the year 2007-08 it is apparent that shop in dispute was registered as garage. The Court has recorded a categorical finding that the portion in dispute was always used by landlords as garage and their ancestors which was given to the petitioner on rent sometime in the year 1999. The courts below on the basis of evidences have concluded that the shop in dispute was always used as a garage before being tenanted out to the petitioner and this compelled the landlord to issue rent receipt making an endorsement thereon as receipt for "garage/shop" to show that the tenant is using it as a shop. The averment of learned counsel for the petitioner that Municipal record has been manipulated by the landlord being an influential person, does not appear to be correct for the reason that all the 43 rent receipts which have been filed by the tenant in the Courts below clearly show that these receipts were for garage. This rather supports the case of the landlord that he had given the garage on rent but later on tenant started using it as shop. If there was any doubt in this regard that it was not a garage, the petitioner had an option to establish before the Courts below that the Municipal records have been manipulated but he could not do so on face of the receipts issued to him filed by himself in the courts below.
Even otherwise the property in dispute is registered as garage in the house tax assessment for years 1986-87, 1987-88, 1991-92 and 1992-93 which goes to show that the property in dispute was always used as a garage and there is no error in the judgment of the courts below in coming to a conclusion that property in dispute was a garage which was used by the landlord as such; but the tenant started using as a shop. In these circumstances, it cannot be said that any manipulation could have been made in the old rent receipts which were in the possession of the tenant prior to filing of the suit as well as in the Municipal records of the corresponding years.
Apparently from the rent receipts of 1999-2001 filed by the tenants, it is established fact that a garage was given on rent to the petitioner @ Rs.190/- per month. It is noted that release application was filed in 2008; therefore, there could be no reason for manipulation of record of Nagar Mahapalika prior to 1999 which shows the tenement as a garage. In the admitted circumstances that landlord owns three cars at Meerut for which his need of parking space in the garage or the alleged shop in dispute is genuine and bonafide. These cars cannot be parked at distance over 04 kms at the site of 'Dharamkanta' or on other properties at different places as these are used by pardanasheen ladies of the family of the landlord.
The petitioner has failed to prove his case before the courts below that need of landlord is not bonafide or that the petitioner as tenant would suffer greater hardship. He has alternative accommodation and can shift his business to any of his three shops two of which are said to be lying closed. Even otherwise if two of the shops are not closed he and his sons still have three shops apart from the shop in dispute, for doing business. Therefore, the hardship lies in favour of the landlord. There is no illegality or irregularity shown by the petitioner warranting interference in the matter by exercise of extraordinary power under Article 226 of the Constitution of India.
At this stage Sri Pramod Jain, learned counsel for the petitioner prays for time to the petitioner to vacate the garage/shop in dispute.
As there are three other shops in the same municipality under possession of the petitioner tenant and his sons, he can shift his business there within a month.
For all the reasons stated above the petitioner is allowed a month's time to vacate the garage/shop in dispute and hand over its peaceful possession to the landlord within a period of one month from today.
The writ petition is accordingly dismissed. This judgment is dictated in open court. No orders as to costs.
Order Date :- 1.4.2011 P.P.