Prahlad Tamoli vs Rajesh Kumar Agrawal
2015 Latest Caselaw 637 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
RESERVED
 
Court No. - 30
 

 
Case :- WRIT - A No. - 17782 of 2015
 

 
Petitioner :- Prahlad Tamoli
 
Respondent :- Rajesh Kumar Agrawal
 
Counsel for Petitioner :- Smt. Rama Goel Bansal
 
Counsel for Respondent :- Rahul Sahai
 

 
Hon'ble Suneet Kumar,J.

Heard Smt. Rama Goel Bansal, learned counsel for the petitioner and Sri Rahul Sahai, learned counsel for the respondent.

The tenant/petitioner has come up in writ jurisdiction challenging the order dated 13.02.2015 passed by the Additional District Judge/Special Judge, Mathura in Rent Control Appeal No. 10 of 2007, dismissing the appeal of the tenant/petitioner and affirming the order dated 19.07.2007 passed by the Civil Judge (Junior Division), Mathura/Prescribed Authority in P.A. Case No. 19 of 1994.

In brief, the facts of the case is that the respondent/landlord being unemployed required the shop in dispute for setting up a business of general merchandise. He claimed that apart from the shop in dispute he did not have any other shop. Further, the premises was also said to be dilapidated. Accordingly, the release of the premises was sought both under Section 21(1)(a) and under Section 21(1)(b) of the Act No. 13 of 1972. The matter was contested by the petitioner/tenant, who instead asserted that the landlord was settled in a business of silver ware, and, as such did not require the shop in dispute. It was further asserted that the landlord/respondent owned multiple commercial properties, as such also, his need was not bonafide.

To the contrary, the petitioner/tenant contended that he ran a beetel shop over the last several years, as such, had a general goodwill and popularity. Even the factum of the shop being dilapidated was disputed. Though however, the landlord/respondent accepted the fact that he was doing business of silverware, however the same was started during the subsistence of the release application and was being carried out from a residential premises. Upon the exchange of pleadings and upon evidence being led by the respective parties, the prescribed authority allowed the release application vide order dated 19.07.2007 both under Section 21(1)(a) and 21(1)(b) of the Act. The prescribed authority while allowing the release application, found that apart from the shop in dispute, the landlord/respondent owned no other shop and had none other at his disposal. The multiple properties referred to by the tenant as belonging to the landlord were also found on the basis of municipal assessment and other evidence on record, as neither belonging to the landlord nor being under his possession.

Similarly, while considering the factum of comparative hardship, it was found by the court below that the tenant/petitioner had made absolutely no attempt to search for an alternate accommodation. This is despite the fact that the proceedings have undisputedly remained pending for several years. Accordingly, the said facets of the matter were also decided in favour of the landlord/respondent. Further while considering the release application under Section 21(1)(b), it was held that the premises in question is dilapidated and that the landlord/respondent fulfilled the requirement under Rule 17 of the Act.

Being aggrieved by the judgment/order dated 19.07.2007, the tenant/petitioner preferred an appeal before the District Judge, Mathura being P.A. Appeal No. 10 of 2007 (Prahlad Versus Rajesh Kumar Agarwal). Before the lower appellate court, the tenant/petitioner, brought on record an assessment order dated 19.01.2007 and a certificate of registration. The purpose of bringing the said document on record was that the landlord/respondent was doing business of silver ware since 1999. Appreciating the entire facts, circumstances as well as the evidence on record, the lower appellate court vide order dated 13.02.2015 affirmed the finding of the prescribed authority on all counts i.e. on bonafide need, comparative hardship and of the premises being dilapidated. The lower appellate court found on the basis of municipal assessment, none of the properties asserted by the tenant petitioner to be belonging to the landlord respondent, was actually owned by him or under his occupation. Similarly, both the courts were of the consistent view that the business of silver ware asserted by the tenant/petitioner as being done by the landlord/answering respondent, was commenced after the filing of the release application which was established by the registration and TIN number. The proceedings for release despite being summary, remained pending before the courts below for almost 21 years. In such circumstances, the landlord/respondent is not expected to sit idle pending decision. Thus by taking up a temporary employment cannot be taken against the interest of the landlord/respondent and made the basis of rejecting the release application.

On behalf of the tenant/petitioner, reliance was placed upon the following cases: Kedarnath Agarwal Versus Dhanraji Devi1, Jai Prakash Gupta Versus Riyaz Ahmad and another2, and Seshambal (Dead) through L.Rs Versus M/s Chelur Corporation Chelur Building and others3 to assert that subsequent event of the landlord taking up silver business should be taken notice of in determining the bonafide need of the landlord. There is no dispute to the proposition laid down in the said decisions. However, it is to be noticed that the subsequent event has to be taken into account in circumstances, wherein the need of the landlord has been totally eclipsed by some event. In most of the cases, the situation were those, wherein, death took place and, as such, the entire foundation of the release application was lost. In the present case, the endeavor of the landlord/answering respondent to start a silverware business much after the filing of the release application was merely for subsistence and an endeavor to fend for himself till the final disposal of the release application, which is a matter of common knowledge takes several years.

During the course of argument, reference was made to the registration certificate. The said registration certificate apart from mentioning the residential address of the landlord respondent as 1452 Gali Thatheran, Lal Darwaza Mathura, reference was also made to the principle place of business of the landlord/respondent at 1410, Shahganj Darwaza, Kachchi Sadak Mathura. Accordingly a query was raised as to the said premises situated at Shahganj Darwaza, Mathura. Insofar as the said facet of the matter is concerned, it was clarified that the said premises does not belong to the landlord and is recorded in the name of the grand-father of the landlord respondent i.e. Matroomal. It is neither the case of the petitioner that the said residential premises belongs to the landlord respondent. Even otherwise in case if in a precarious situation as that of the landlord/answering respondent, the members of his extended family, out of gratitude, permit him to earn his livelihood, out of a portion of a residential accommodation, the same cannot be taken to be defeating the bonafide need of the answering respondent.

At this juncture it is also pertinent to mention that there were no deliberation with regard to the aforesaid facets of the matter before the courts below. The said property does not find mention in either the defense of the tenant in his written statement and/or for that matter the grounds of appeal or in the pleadings in the writ petition. Since it was not the case of the tenant anywhere that the property situated at 1410 Shahganj, Darwaza, Kachchi Sadak Mathura belongs to the landlord/respondent, there was no evidence led on the said fact. Even the affidavit through which the said registration certificate was brought on record relies upon the said documents only for the purposes to assert that the landlord/ respondent is doing business of silverware since 1999. As stated earlier, there is no reference either in the said affidavit that the business of silverware being run by the landlord/respondent out of the properties situated at 1410 Shahganj Darwaza, Mathura belongs to him. In such circumstances, no adverse inference qua the same can be taken against the landlord respondent.

In light of the above, it is apparent that the courts below have noted that the landlord respondent does not have any shop to his disposal. It is also a trite law that a landlord cannot be compelled to carry out commercial activity from his residential premises. This apart, it has also been settled in a catena of judgments that every member of the landlords family is entitled to start his independent business and cannot be compelled to participate in the family business as being otherwise asserted by the tenant/petitioner. (Refer: Avinash Chandra and others Versus VIIth A.D.J. Ghaziabad4).

Upon the absence of the tenant to search for an alternate accommodation will have the factum of comparative hardship tilt in favour of the landlord/answering respondent. (Vide- Ganga Devi Vs. D.J. Nainital5).

The concurrent finding of fact have settled the issue of both bonafide need and comparative hardship, the same cannot be disturbed by this Court under Article 226 of the Constitution of India. (Vide- Katori Devi Versus A.D.. Haridwar and others6 and Shamshad Ahmad and others Vs. Tilak Raj Bajaj7).

In Mohd. Ayub v. Mukesh Chand8, while interpreting the provisions of law, Supreme Court has observed in para 15 as under:-

"15. It is well settled the landlord's requirement need not be a dire necessity. The court cannot direct the landlord to do a particular business or imagine that he could profitably do a particular business rather than the business he proposes to start. It was wrong on the part of the District Court to hold that the appellants' case that their sons want to start the general merchant business is a pretence because they are dealing in eggs..........Similarly, length of tenancy of the respondent in the circumstances of the case ought not to have weighed with the courts below."

In Rishi Kumar Govil v. Maqsoodan9, on the plea and evidence relating to bonafide need of landlord, Apex Court in para 19 observed as under:-

"19. In Ragavendra Kumar v. Prem Machinery and Co.10, it was held that it is the choice of the landlord to choose the place for the business which is most suitable for him. He has complete freedom in the matter. In Gaya Prasad v. Pradeep Srivastava11, it was held that the need of the landlord is to be seen on the date of application for release. In Prativa Devi (Smt.) v. T.V. Krishnan12, it was held that the landlord is the best Judge of his requirement and Courts have no concern to dictate the landlord as to how and in what manner he should live."

The Supreme Court reiterated the principles in determining the bonafide need and comparative hardship in Krishna Kumar Rastogi Versus Sumitra Devi13, wherein the Court observed:-

"Merely for the reason that some witness has stated that the landlord attempted to sell the property, his statement cannot be said to be reliable, as has been believed by the High Court or the appellate court, unless such fact is supported with documentary proof. There appears no document on record to support the bald statement of the witness to dislodge the case of bona fide requirement of the shop claimed by the appellant for his son who was unemployed."

The matter at hand has been settled by both the courts below and does not warrant any interference by this Court in exercise of its powers conferred under Article 226 of the Constitution of India. The matter has for now almost 21 years remained pending before the courts below.

For the reasons and law stated herein above, the writ petition is accordingly dismissed.

No order as to costs.

Order Date :-22.05.2015

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