Sri Subodh Kumar Agarwal vs Smt. Maharani And Another
2014 Latest Caselaw 4555 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 

 
Court No. - 30
 

 

 
Case :- WRIT - A No. - 42683 of 2014
 

 
Petitioner :- Sri Subodh Kumar Agarwal
 
Respondent :- Smt. Maharani And Another
 
Counsel for Petitioner :- K.K. Arora
 
Counsel for Respondent :- Vipin Kumar
 

 
Hon'ble Pankaj Mithal,J.

Heard Sri K.K.Arora, learned counsel for the petitioner and Sri D.K.Srivastava, learned counsel for the respondents.

The dispute in this writ petition is regarding release of a shop situate in Alamgiriganj/Bansmandi (Chaman Gali), Bareilly.

Originally the shop in dispute was the property of one Smt. Phoolmati. It was purchased by Chhotey Lal, the deceased husband of respondent No.1 and father of respondent No.2 vide registered sale deed in the year 1989. On the death of Chhotey Lal its ownership devolved upon his widow Smt. Maharani and his sons including respondent No.2.

Petitioner is a tenant in the said shop on a rent of Rs.50/- per month. He is using the said shop as his godown.

Respondents applied for release of the aforesaid shop under Section 21(1)(a) of the U.P. Act No.13 of 1972 on the ground of bona fide need of respondent No.2 alleging that the petitioner is keeping the said shop locked and that it is not being used by him. The electric connection of the shop has been disconnected. The shop in dispute is needed for establishing respondent No.2 in a business of ready made garments as he is unemployed and has no other alternative place for doing that business.

The release application was opposed by the petitioner admitting tenancy at the rate of Rs.50/- per month and that he took it on rent from Chhotey Lal, the predecessor in interest of the respondents. He accepted that after the death of Chhotey Lal respondents are the owners along with three other sons of the deceased. The release application has not been filed on behalf of other three sons and is not maintainable. One of the sons of the deceased Chandra Prakash is doing Sarrafa business at Faridpur in district Bareilly. The other son Harish Kumar is engaged in similar business in village Nariyawal, Bareilly. The third son Chandra Bhan is doing Sarrafa business in the name of Tinni Jewelers in mohalla Alamgirganj /Bansmandi (Chaman Gali), Bareilly and that adjacent to the said shop of Tinni Jewelers two shops of the respondents are lying vacant. They can be used for the business purpose of fourth son of the deceased i.e. respondent No.2.

The prescribed authority vide judgment and order dated 5.7.2013 allowed the release application holding the need of the respondents for the shop in dispute to settle respondent No.2 in business of ready made garments to be genuine and bona fide. The comparative hardship was also held to be in favour of the respondents as the petitioner was found to be the owner of one big shop in Sunahari Masjid, Bansmandi, Bareilly and had failed to make any effort to search out alternative place for himself.

Petitioner preferred an appeal against the aforesaid decision of the prescribed authority which has been dismissed vide judgment and order dated 30.5.2014.

Aggrieved, petitioner has filed this writ petition challenging the above judgments and orders dated 30.5.2014 and 5.7.2013 allowing the release application of respondent No.2.

Learned counsel for the petitioner has advanced basically two arguments. First the petitioner was originally a tenant of erstwhile owner Smt. Phoolmati and the respondents having purchased the said property in 1989 were not entitle to apply for its release without serving six months' notice as contemplated by first proviso to Section 21(1)(a) of the Act. Secondly, the finding of the court below on bona fide need is perverse in view of the fact that the respondents have two shops adjoining to the shop of Tinni Jewelers available with them in vacant state which fact is established by the Commissioner's report on record.

Sri D.K.Srivastava on behalf of the respondents has submitted that the petitioner accepts that he was inducted as a tenant by deceased Chhotey Lal. Therefore, the first proviso to Section21(1)(a) of the Act is not applicable in the present case. There is only one shop adjoining to the shop of Tinni Jewelers and it is not vacant and the other accommodation is only in the nature of a gallery which cannot be used as a shop. Therefore, the courts below have not erred in allowing the release application.

The first proviso to Section 21(1)(a) of the Act stipulates that where a building is in occupation of a tenant before its purchase by the present landlord, no application for its release shall be entertained unless a period of three years has elapsed from the date of such purchase and the landlord has given a notice in that behalf to the tenant not less than six months before the filing of the release application.

The aforesaid proviso lays down two conditions for entertaining an application for release in case of tenant in occupation of the building since before its purchase by the landlord. The said two conditions are: (i) expiry of three years from the date of purchase; and (ii) giving of six months notice before filing the application.

The petitioner in order to show that he was occupying the shop in dispute as a tenant since before purchase of the shop by Chhotey Lal has placed reliance upon his affidavit (Annexure - 4) wherein in paragraph 2 he has stated that he continued to be the tenant of the shop in dispute since the time of the previous owner Smt. Phoolmati. Another affidavit of one Sharafat Miyan has also been relied upon who has stated that the petitioner was the tenant of the previous owner Smt. Phoolmati.

Sri Arora has also filed a supplementary affidavit bringing on record few rent receipts alleged to have been issued by the previous owner Smt. Phoolmati in the name of the tenant regarding realisation of rent of Rs.300/- per month for some of the months in 1986-87.

On the basis of the aforesaid evidence on record it has been contended that as the petitioner continues to be a tenant since before the purchase of the shop by Chhotey Lal the application for release could not have been entertained until and unless a notice of six months, as contemplated by first proviso to Section 21(1)(a) of the Act has been issued/served.

The appellate court while dealing with issue No.2 in its judgment has dealt with the above argument advanced on behalf of the petitioner. It has referred to paragraph 12 of the written statement of the petitioner and has noted that the petitioner has admitted that he was inducted as a tenant by Chhotey Lal meaning thereby that his tenancy is not continuing from the times of previous owner Smt. Phoolmati.

The written statement filed by the petitioner is annexed as Annexure - 3 to the writ petition. In paragraph 12 of the written statement petitioner has categorically in unequivocal terms stated that he took the shop in dispute on rent from Chhotey Lal, the husband of respondent No.1. On the death of Chhotey Lal his widow, respondent No.1 and his sons respondents No.2 along with other sons Chandra Prakash, Chandra Bhan and Harish Kumar became the co-owners of the same. The said paragraph 12 of the written statement reads as under:

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In view of the above admission, it does not lie in the mouth of the petitioner to contend that the shop in dispute was let out to him by the previous owner of the shop Smt. Phoolmati. It is well settled that admission of fact is the best piece of evidence and when a fact is admitted no further evidence is required to prove it. The petitioner, therefore, cannot adduce evidence to prove contrary to the fact which has been admitted by him in his written statement.

The evidence of the petitioner to prove that he was inducted as tenant by the previous owner Smt. Phoolmati is beyond his pleadings and is meaningless.

It may be relevant to note that the petitioner subsequently made an attempt to amend the written statement. He filed an application proposing to amend paragraph 12 of the written statement apart from seeking other amendments, so as to permit him to allege that the shop was let out to him by the previous owner Smt. Phoolmati after deleting the fact that it was let out to him by Chhotey Lal. The said application was rejected by the appellate court vide order dated 30.1.2014 and the order was affirmed by this Court vide order dated 1.5.2014 passed in Writ No25024 of 2014 (Subodh Kumar Agrawal Vs. Smt. Maharani and another).

In view of the aforesaid facts and circumstances, the petitioner in his pleadings himself admits to have been inducted as tenant in the shop in dispute by Chhotey Lal. Therefore, the transfer of the shop by the previous owner Smt. Phoolmati in favour of Chhotey Lal has no relevance so as to apply the first proviso to Section 21(1)(a) of the Act.

The release application has been filed by the heirs of the deceased/owner Chhotey Lal and not by a subsequent purchaser of the shop so as to attract first proviso to Section 21(1)(a) of the Act. The finding of the appellate court in this regard as such does not suffer from any illegality or error of law.

In the release application the need set up for the shop in dispute is for respondent No.2, one of sons of the deceased/owner Chhotey Lal. He is unemployed and intends to settle himself in the business of ready made garments from the shop in dispute.

The argument is that adjacent to the shop in dispute and the shop of Tinni Jewellers wherefrom one another son of deceased Chhotey Lal is carrying business, there are two other shops of the respondents which have been marked in the map prepared by the Commissioner as shops No. 2 and 3. The said two shops are vacant and are sufficient to cater the need of the respondent No.2.

The report of the Commissioner is on record and is admitted to the parties. No one has filed any objection against it. The Commissioner's report dated 2.5.2013, Annexure - 2 to the writ petition states that shop No.3 is in the nature of a gallery rather than a shop. It is only 4'3" in width at the back and 3'6" in the front. The said shop, as its width shows is only a gallery as held by the appellate court and is used as such for the approach to the shop of Tinni Jewelers. It is not suitable to be used for any garment business.

The Commissioner's report states that at the time of inspection shop No.2 was being used by Vikas Verma for the purposes of sale of jewelery boxes and that he was found doing the said business at the relevant time. The appellate court has thus returned a finding that the said shop is not vacant and available to respondent No.2 for starting any business.

The submission is that the aforesaid business of Vikas Verma was set up only a day earlier to support the release application; the Commissioner has found sign board of the said business to be new and the people present there also informed that the business therein has been set up a day earlier.

A document or the report of the Commissioner which is capable of being interpreted in two different ways, can be interpreted either way. Thus, if the appellate court has taken one view of the matter it cannot be said that the said view is incorrect or absurd. The appellate court on consideration of report of the Commissioner has concluded as of fact that shop No.2 is not vacant and is being used by Vikas Verma for his business purposes. The view so taken by the court below has to be accepted as it is beyond the scope of judicial review in exercise of writ jurisdiction.

Thus, in over all facts and circumstances of the case, in my opinion, the judgments and orders of the courts below warrant no interference in exercise of discretionary jurisdiction.

Sri Arora in the last made a prayer for some reasonable time to vacate the shop. In the interest of justice three months from today is allowed to the petitioner to vacate the shop in dispute provided he gives an undertaking on affidavit before the Prescribed Authority that he will handover vacant peaceful possession of the shop in dispute to the respondents within the time allowed as above and clear all the dues thereof.

The writ petition is dismissed with the above concession with no order as to costs.

Order Date :- 20.8.2014

Brijesh