Brij Kishen Agarwal vs Suraj Prakash Jain And Others
2011 Latest Caselaw 1024 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 7
 

 
Case :- WRIT - A No. - 65968 of 2010
 

 
Petitioner :- Brij Kishen Agarwal
 
Respondent :- Suraj Prakash Jain And Others
 
Petitioner Counsel :- A. K. Gupta
 
Respondent Counsel :- Satish Mandhyan
 

 
Hon'ble Rakesh Tiwari,J.

Heard learned counsel for the parties and perused the record.

This writ petition has been filed by the petitioner/tenant for quashing the order dated 20.08.2009 in P.A. Case No. 9 of 1995 passed by the Prescribed Authority/IIIrd Additional Civil Judge Court no. 1, Agra, Suraj Prakash Jain Vs. Brijkishan Agrawal, and the order dated 17.07.2010 in Rent Control Appeal No. 80 of 2009 Brijkishan Vs. Suraj Prakash Jaun passed by the Appellate Court/Additional District Judge, Court no. 2, Agra. The petitioner has also prayed for issuance of a suitable writ order or direction which the Court may deem fit and proper under the circumstances of the case.

The backdrop of the case is that the petitioner alongwith other co-tenants inherited it from their original tenant Bhola Nath (since deceased) S/o late Jeevanlal who was his father. The shop is situated in premises no. 29/294/2-F, Raja Ki Mandi, Agra tenemented out by the landlord @ Rs. 150/- per month besides water and other taxes; that Suraj Prakash Jain, the landlord ( since deceased) instituted Suit no. 173 of 1991 in the Court of Judge Small Causes, Agra against the tenant on 29.07.1991 for eviction from the shop in dispute on the allegations that the tenant was given the shop for business of Kirana but he has started running business of grinding of herbs spices with aid of machines and due to alterations caused by running of the machines substantial damage has been caused to the building and that the tenants have also sub let a portion of the shop under his tenancy to other persons.

After contest Suit no. 173 of 1991, was dismissed vide order dated 25.05.1996 holding that plaintiff had himself damaged the property in dispute and there was no subletting of any portion of the shop in dispute.

Another release application was filed on 24.07.1993 by the landlord under Section 21 (1) (a) of the Act on the ground of bonafide need for his four sons. This application was registered as P.A. Case No. 33 of 1993 but was not pressed by the applicant landlord and was dismissed as such by order dated 23.02.1994.

The prescribed authority allowed the release application vide order dated 20.08.2009 holding that need of the landlord is bonafide and he will suffer greater hardship that the tenant of shop in dispute is not released to him. Aggrieved by the tenant/petitioner filed Civil Appeal No. 30 of 2009 before the District Judge, Agra. The landlord Suraj Prakash Jain in the meantime died on 16.03.2010 and his four sons and daughter were substituted.

The landlord had moved an application before the Prescribed Authority/IIIrd Additional Civil Judge, Agra U/S 21 (1) (b) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act 1972, herein after referred to as the Act. This application was registered as P.A. Case No. 9 of 1995. Release of the shop in dispute was sought on the ground of default in payment of rent, causing damage to the building, subletting a part of the shop to this brother and also on the ground that building being old is in a dilapidated condition hence requires demolition and reconstruction.

A Suit No. 193 of 1993 was also filed by the tenant for permission to carry repairs in the shop in dispute as landlord was not maintaining the building. It was decreed and in execution of it, the shop was repaired. The Misc. Appeal NO. 3 of 1996 preferred by the landlord against the order allowing repairs of the tenant's portion, was allowed on 30.01.2002 remanding the matter to the Prescribed Authority.

The learned counsel for the petitioner submits that since the landlord concealed the extent of vacant accommodation in his possession, hence the tenant /petitioner filed an application dated 11.01.2010 for inspection.

The appeal of the tenant petitioner was dismissed allegedly without discussing the evidence of the parties and simply narrating the case.

It is submitted that the petitioner specifically pressed before the appellate court that the accommodation in possession of Suraj Prakash Jain is now vacant and available to his sons and they were also stated before the appellate Court that the shop can be partitioned so as to satisfy the need of both the landlord and the tenant. However, since the appeal filed by the tenant/ petitioner has been dismissed he has preferred the present writ petition. The orders passed by both the courts below have been challenged on the grounds that they are illegal and beyond jurisdiction.

The contention of the learned counsel for the petitioner in brief is that the petitioner has disclosed the extent of accommodation lying vacant and available to the landlord in paragraphs 21, 23, 24, 25, 37, 38, 39, 40 and 41 of the writ petition which was also brought to the notice of the courts below have also not considered even releasing part of the accommodation. The SCC Suit No. 173 of 1991 filed by the landlord on the ground of default in payment of rent and material alteration as well as causing substantial damages to the tenement which is too dismissed after contest on 25.05.1995 as such the release application filed thereafter was mainly a counter blast. It is stated that the landlord's sons are well settled in their business and as such the need of the landlord is not bonafide.

Learned counsel for the petitioner has submitted that admittedly landlord is running his own shop in property no. 29/195/2. He died during the pendency of appeal and this shop is now available to his sons and grand sons and though this fact is on record but this aspect has not been considered by the Appellate Authority.

It is further stated that the landlord also owns a Dharmashala kown as Uttam Chand Dharamshala wherein two shops are lying vacant and unutilized as such it is a proved fact that the landlord has no bonafide need of the shop in dispute at all and he has let out various shops during the pendency of the proceedings hence the release application filed by him was ought to have been dismissed.

Emphasis has been laid by Sri A. K. Gupta learned counsel for the petitioner that the landlord has no bonafide need for the shop in dispute for the reason that the plea set up by the landlord that his son who is running Thread Ball Factory requires a shop for display and sale of his goods has lost its efficacy as admittedly the factory of the son for manufacture of Thread Ball was closed and therefore question of need to display the Thread Ball in the shop in dispute after converting it into a short shop ceased to exist.

In so far as the shop in Uttam Chand Dharamshala is concerned, it is stated that Dharmashala is managed and owned by a Private Trust to whom it has been donated by the landlord and the shops in it are not available to the landlord.

He states that in the Appeal, the petitioner moved an application 17 Ga for inspection of the property to demonstrate that the landlord has a large number of properties in his possession but the application was illegally rejected. It is submitted that the appellate authority has not at all considered the appeal on merits and has simply noted the arguments made by the parties while dismissing the appeal simply on the ground that the case law submitted by the landlord supports his case. The need of the landlord is not bonafide on account of fact that large number of shops are vacant and two shops which were got vacated during the pendency of the case were let out by him to others; that as the landlord has died during the pendency of appeal and now the said shop is available to his son and grand sons but the same was not considered which is illegal and arbitrary; that the prescribed authority has only summarized the case of the parties but has not applied its mind with regard to the alternative accommodation available to the landlord in the nature of the shops vacated by other tenants which he said to have given on higher rent to others, as such the orders impugned are liable to be quashed.

Per contra learned counsel for the respondent has submitted that the case set out by the petitioner was considered by the courts below and categorical finding of fact have been recorded by the Court that the need of the landlord was bonafide. Referring to the argument regarding many shops having been vacated by the tenants which were not used by the landlord himself for settling his son and grand sons in business and giving those shops on higher rent to others., the finding in this regard are thus:

" foi{kh us ,d rdZ ;g Hkh fn;k gS fd izkFkhZ ds ikl /keZ'kkyk dh lEifRr Hkh gS tks fd mRre oUn tSu /keZ'kkyk ds uke ls gS vkSj blesa Hkh nks nqdkus [kkyh iMh gq;h gS vkSj izkFkhZ ds iq= jktsUnz dqekj dh bl lEifRr esa nqdku gSA ;g dkQh cMh txg gSA blesa FkzSM ckWy QSDVjh Hkh gSA izkFkhZ dh vksj ls ;g rF; vius fjtksbUMj 'kiFk i= esa yk;k x;k gS fd mRre pUn tSu /keZ'kkyk dh tks lEifRr gS og izkFkhZ ds iwoZtksa }kjk /keZ'kkyk ds uke MksusV dj nh x;h gS vkSj tks lEifRr /keZ'kkyk ds fy, MksusV dh tk pqdh gS mls izkFkhZ iqu% vius bLrseky esa dSls yk ldrk gSA og lEifRr tufgr esa fcjknjh dks MksusV dh tk pwdh gS vkSj blesa yksxksa dh 'kknh C;kg vkfn ds dk;Z gksrk gSA FkzsM ckWy QSDVjh dh ckcy izkFkhZ us vius fjtksbUMj 'kiFk i= esa dgk gS fd og QSDVjh can gks pqdh gS vkSj vc ogkW dksbZ QSDVjh ugha py jgh gSA foi{kh dh vksj ls vksisu dkmUVj 'kiFk i= esa dgk x;k gS fd xkSjo jktsUnz dqekj iq= ugha gS vkSj ;g Hkh dgk gS fd fj"kHk vius firk ds lkFk dke djrk gS vkSj vfHk"ksd v'kksd dqekj ds lkFk dke djrk gS rFkk lEifRr la0 [email protected] jktk e.Mh vkxjk /keZ'kkyk ugha gSA izkFkhZ ds }kjk bl lEcU/k esa dgk x;k gS fd foi{kh us Lo;a /keZ'kkyk dh lEifRr dk QksVks nkf[ky fd;k gS tks n'kkZrk gS fd lEifRr 100 o"kZ ls vf/kd iqjkuh gS vkSj eafnj ds :i esa cuh gq;h gSA"

It is stated that those shops were small in sized for the business which his grand sons wanted to establish and that in fact the landlord had also offered those shops to the petitioner/ tenant but he refused the offer as such it cannot be said that need of the landlord is not bonafide. The finding of the trial court in this regard is thus:-

"blds i'pkr cwd ck.M }kjk cxy okyh nqdku [kkyh dh x;hA ;g nqdku NksVh Fkh vkSj blesa dqN le; rd izkFkhZ us viuk LdwVj eksVjlkbfdy ikdZ fd;s vkSj ckn esa D;ksafd yksds'k dks vius O;kikj ds fy;s txg de iM+ jgh Fkh rks mDr nqdku dks Hkh izkFkhZ us yskds'k dks ns fn;k ftlls mldk O;kikj c<+ lds vkSj chp dh nhokj fudky nhA ;g nqdku ifjokj ds fy;s gh iz;ksx esa yk;h x;h u fd fdlh ckgjh O;fDr dks fdjk;s ij mBk;h ugha x;h gSA izkFkhZ }kjk ,usDpj&3 ekSds dk uD'kk nkf[ky fd;k x;k gS ftlesa chp esa [kqyk vkaxu vkSj pkjksa rjQ nqdkus fn[kk;h x;h gSA nqdku la0 13 ls 17 jktke.Mh dh rjQ [kqyrh gS vkSj mRrj eq[kh gSA nqdku la0 18 v'kksd uxj xyh esa if'pe dh vksj rFkk nqdku la0 2 ls 5 xyh ds cSd lkbZM ij nf{k.k dh vksj gS rFkk nqdku la0 6 ls 12 xksdqyiqjk xyh dh rjQ iwjc dh vksj gSA nqdku la0 1 o 2 lqjs'k pUnz ds ikl fdjk;snkjh esa Fkh tks [kkyh gq;h vkSj blesa ls 4x12 QqV dk ,d jkLrk cuk;k x;k D;ksafd jkLrk NksVk Fkk vkSj xSyjhuqek Fkk vkSj bl NksVs jkLrs ij gh xqykc flag vukf/kd`r :i ls cSV x;k FkkA blds vfrfjDr nqjku la0 3 eqjkjh yky ds ikl lu~ 1972 ls nqdku la0 4 lR;iky ds ikl 1980 ls] nqdku la0 5 y{e.k iku okys ds ikl 1972 ls nqdku la0 6 o 7 izkFkhZ ds ikS= yksds'k ds ikl ftlesa og inekorh dEI;wVj lSUV pykrk gSA o nqdku la0 8 vCnqYyk ds ikl 60 o"kksZa ls FkkA nqdku la0 9 lkbZukFk ToSylZ ds ikl 10 o"kksZ ls FkkA bl nqdku dk jdck cgqr NksVk Fkk vkSj izkFkhZ dh vko';drk ds fy, i;kZIr ugha FkkA nqdku la0 10 o 11 frdksus vkdkj dh ftuds nks lVj gS o muds e/; dksbZ nhokj ugha gSA ftudk QzUV 12 QqV ysQ~V lkbZM It appears that the prescribed authority also considered the question of shops in the Dharmshala which has been donated by the landlord to the community for marriage purpose etc. The prescribed authority has noted that after donation, the landlord had no right in the property in question and that the objection raised by the petitioner that Sri Gaurav and Rajendra Kumar were not the sons of the landlord etc, has also been considered.

After considering the facts and circumstances of the case, the prescribed authority had found that the landlord had proved his case of bonafide need of the shop and comparative hardship. This finding of bonafide need and comparative hardship had been confirmed by the Appellate Court in the following terms:

"vihykFkhZ dh vksj ls ;g Hkh cgl dh x;h fd nkSjku ckn izkFkhZ dh dbZ nqdkus [kkyh gqbZ ijUrq foi{[email protected] izkFkhZ }kjk mu nqdkuksa esa vius fdlh iq= dks O;kikj ughs djk;k cfYd mu nqdkuksa dks vf/kd fdjk;s ij mBk fn;kA vihykFkhZ dh vksj ls ;g Hkh rdZ fn;k x;k fd ;fn foi{kh dh vko';drk burh lnHkkog Fkh vkSj mls vius iq=ksa o ikS=ksa dks O;kikj djkuk Fkk rks mlus [kkyh nqdkusa esa mUgsa O;kikj ugha djk;k vkSj mu nqdkuksa dks fdjk;s ij mBk fn;kA bl izdkj vihykFkhZ dk dFku gS fd foi{kh dks nqdu dh dksbZ vko';drk ugha gSA blds foijhr foi{[email protected] dh vksj ls dgk x;k fd tks nqdkus [kkyh gqbZ gSa og cgqr NksVh&NksVh gS ;fn vihykFkhZ pkgs rks mu nqdkuksa esa viuk O;kikj dj ldrk gSA eSa vihykFkhZ ds bl rdZ esa cy ugha ikrk gWwA vihykFkhZ ;fn pkgrk gS rks vius O;kikj dks fdlh vU; fdjk;s ds LFkku ij ys tk ldrk FkkA"

As regards the factum of material alteration by the court below decided thus:

" In the above circumstances, prima facie it appears that the appellant has bonafide need for his sons and grandsons and it is a settled law that the owner of the property is the best judge of his needs:-

Raghvendra Kumar Vs. Firm Machinery & Company 2005 C.C.F.B.R.C. 14. Applicant has shown need for his adult son (s) and grandsons and his need can't be said malafide by any angle and he has stated that his sons and all grandsons are married except one and they have to bear their family expenses for which they need space to run their business. In this connection, I have perused Prasad Vs. Pradeep 2001 A.R.C. 372.

Now the next question that is being proved by evidence is the presence of comparative hardship. Sons and grandsons of the applicant are wandering unemployed and he is badly in need of space but opposite party states that he is an old tenant and further states that he has been running his business in the aforesaid disputed shop since old times and he has got goodwill amongst the habitants of that area and if he is evicted from the shop, this will have a bad effect on his business. Sons and grandsons of the applicant are wandering unemployed whereas his own property is occupied by the tenant for business. Opposite party has not taken any concrete step to find out an alternative accommodation, opposite party has disclosed the fact of submitting an application to the R.C.O. After filing only rejoinder affidavit 13 Ga and he has submitted a copy of the said application dated 21.07.2009. Release application is pending since 1995 and opposite party had submitted application to the R.C.O. for the first time in the year 2009 for an alternative accommodation which shows that the opposite party has never made any sincere effort to find out an alternative accommodation. As such, comparative hardship of the complainant is prima-facie proved and it will be unjust to the applicant if his property is not released to him in view of his hardship .

Opposite party has also changed the nature of the disputed property and he has done so without obtaining permission of the applicant. Applicant has served a notice of rent recovery and eviction on 19.11.1990 to the opposite party in which the tenancy of the opposite party was terminated but even after this the opposite party continued the illegal possession of the disputed property with him and he has even become a defaulter in payment of rent. Need of the applicant is more than that of the opposite party and his need can't be overlooked even though the opposite party is a tenant for a long time. Applicant is entitled to get the relief as prayed and he has been completely successful in proving his bonafide need and his comparative hardship is more than that of the opposite party. Application of the applicant is liable to be accepted."

Both the courts below have given detailed and cogent reason for not accepting the claim of the petitioner and have also found that the petitioner/tenant had not made any effort to seek any accommodation during the proceeding or after receipt of the notice.

In my considered view even if the landlord had not utilized the shops which had fallen vacant during the pendency of the writ petition as they were not suitable to him, he in all fairness had offered those shops to the tenant/ petitioner which was refused by the him.

For all the reasons state above, the writ petition is dismissed. No order as to costs.

At this stage, Sri A. K. Gupta learned counsel for the petitioner prayed for time to enable the tenant to ensure the vacant possession of the shops in dispute to the landlord. The petitioner is a Hakeem. He is granted two months time to vacate the same.

Order Date :- 13.4.2011

YK