Smt. Shamim Begum And 5 Others vs Dinesh Kumar 7 Others
2018 Latest Caselaw 4099 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

										A.F.R.
 
Court No. - 19
 

 
Case :- WRIT - A No. - 10001 of 2018
 
Petitioner :- Smt. Shamim Begum And 5 Others
 
Respondent :- Dinesh Kumar 7 Others
 
Counsel for Petitioner :- Raj Kumar Singh Chauhan, ,Syed Ali Imam
 
Counsel for Respondent :- Asim Kumar Singh, ,Swapnil Kumar
 

 
Hon'ble Manoj Kumar Gupta,J.

Heard Sri B.K. Srivastava, learned senior counsel assisted by Sri R.K.S. Chauhan for the petitioners and Sri Swapnil Kumar for respondents no.1 to 3.

The instant writ petition under Article 226 of the Constitution calls into question the order dated 6.2.2018 passed by Additional District Judge, Court No.18, Agra in Rent Control Misc. Appeal No.11 of 2011, whereby the appeal filed by respondents no.1 to 3 (for short 'the landlords') under Section 22 of the U.P. Act No.XIII of 1972 (for short 'the Act) was allowed and the petitioners (for short' the tenants') were directed to be evicted.

The brief facts giving rise to the instant writ petition are that a release application under Section 21 (1) (a) of the Act was filed by the landlords against the tenants, registered as P.A. Case No.58 of 2007. The landlords purchased the property bearing municipal no.14/3, forming part of Survey no.233/77 Taj Road, Sadar Bazar, Agra from its erstwhile owner Taranjit Singh Chopra by a sale deed dated 19.12.2003. The said shop was in the tenancy of the petitioners at a monthly rent of Rs.20/- besides Rs.5/- per month towards water tax. The landlords were owner of an adjoining shop bearing no.14/2 in the same building and from which Hemant Kumar S/o Dinesh Kumar, one of the landlords was doing business of sale and supply of fast food, confectionery and bakery items in the name and style of 'M/s Kumar & Company' as its sole proprietor. The business started flourishing and the landlords, facing shortage of space in shop no.14/2, purchased the adjoining shop in the tenancy of the petitioner for meeting their need for additional accommodation. The specific case in the release application was that the shop in possession of Hemant Kumar was having a small frontage of 8 feet only. It was pleaded that after placing counter on the front side, hardly 2 ½ feet space was left as passage. The customers face difficulty in having access to the inner portion of the shop. The landlords were having imminent need of additional space, which could be met by merging both the shops into one. It was further alleged that Basant Kumar (one of the other landlords) who was having no business of his own, would extend a helping hand to Hemant Kumar. In paragraph 15 of the release application, it was pleaded that Mahesh Kumar, applicant no.3 (landlord) was doing business as a general merchant in the name and style of 'Kumar Daily Need Store' in a shop owned by him bearing municipal no.13A, Sadar Bazar, Agra. It was a small shop measuring 8' x 16'. There was hardly any space in the said shop to accommodate any other member of the family. The applicant no.3 has his own family comprising of wife, two grown up daughters and one son. The tenants were served with statutory notice under the Proviso to Section 21 (1) of the Act dated 8.5.2007 to enable the tenants to make alternative arrangement but despite service of notice, they did not make any alternative arrangement, nor vacated the shop, consequently, the landlords filed the release application.

The tenants contested the release application by filing a written statement. They denied the alleged need of Hemant Kumar and pleaded that the landlords and members of their family were running several businesses which they had concealed. The details of those businesses was given in paragraph 4 of the written statement. It was also specifically pleaded that Smt. Shamima Begum, the tenant, after death of her husband, had been running business from the disputed shop and is taking care of her five daughters, two of whom were unmarried. It was pleaded that in case of eviction, the only source of livelihood would be snatched from her. She also pleaded that no notice under Proviso to Section 21 (1) was served upon the tenants, consequently, the release application deserved to be rejected.

The parties filed their affidavits and documentary evidence in support of their respective cases. Thereafter, the Prescribed Authority, by judgement and order dated 24.12.2010, rejected the release application. The relationship of landlord and tenant between the parties was found established. However, the Prescribed Authority held that there was adequate space available to Hemant Kumar in shop no.14/2, as it measures 34' x 9'. For coming to such conclusion, the Prescribed Authority compared the area of the shop in possession of Hemant Kumar with the area of shop no.13A, from which one of the landlord- applicant no.3 was running business in the name and style of 'Kumar Daily Need Store', having an area of 8' x 16'. It was observed that in case business could be run from a shop measuring 8' x 16', it could also be conveniently run from shop measuring 34' x 9' and accordingly, the need set up in the release application for additional space was negated. The court further observed that the landlords have not disclosed the persons who were running business specified at item nos.3 and 4 of para 4 of the written statement. The need of Basant Kumar, applicant no.2 was also not found to be bonafide. While considering the question of comparative hardship, the Prescribed Authority held that petitioner no.1 is a widow and she has to perform marriage of three daughters. It was also observed that although she had retired as Class IV employee, but her salary was not sufficient and in case of eviction, it would be difficult for her to solemnize marriage of her daughters. The Prescribed Authority also, taking into consideration Rule 16 (2) (c), observed that in case the tenants are evicted, they would suffer greater hardship.

Aggrieved by the judgement and order of the Prescribed Authority, the respondent landlords filed an appeal under Section 22 of the Act which came to be registered as Rent Control Misc. Appeal No.11 of 2011 and which has been allowed by impugned judgment and order dated 6.2.2018. The appellate court granted two months' time to the tenants to vacate and also issued a direction to the landlords to pay compensation to the petitioners equivalent to two years rent under the Second Proviso to sub-section (1) of Section 21.

Sri B.K. Srivastava, learned senior counsel appearing on behalf of the petitioners submitted that the appellate court, while allowing the appeal, has failed to upset the findings recorded by the Prescribed Authority relating to various alternative businesses being carried on by the landlords and on account of which, the Prescribed Authority, keeping in mind Rule 16 (2) (c), held that the tenants would suffer greater hardship in case of eviction. He further submitted that the appellate court has made a perverse observation to the effect that the first petitioner is carrying on business from the disputed shop through servant being herself a Class IV employee, though according to him, she had retired in 2013 and is presently doing business all by herself. He further submitted that the appellate court has drawn a conjectural inference that with passage of time, all the daughters of the petitioner no.1 got married, although one daughter is still unmarried.

On the other hand, Sri Swapnil Kumar, counsel for the respondent landlords submitted that there are seven male members in the family of the landlords and looking to the strength of male members, there was acute paucity of space for carrying on independent business by each male member. He submitted that the landlords had not concealed any fact in the release application. They had disclosed the businesses being run from different shops owned by them. In respect of businesses being carried on from some of the tenanted premises, it was not felt necessary to give details of those businesses. He further submitted that after the tenants took plea in the written statement that certain businesses being run by the landlords, had been concealed, the landlords filed their joint affidavit and in paragraph 24 thereof, explained in detail about each and every business. He further submitted that the appellate court, after considering the evidence on record, has rightly come to the conclusion that there was no concealment of any material fact by the landlords and the need of Hemant Kumar for additional accommodation, looking to his need, was genuine and bonafide. He further submitted that the appellate court, while deciding the appeal, was fully aware of the findings recorded by the Prescribed Authority, as the Appellate Court, while making discussion, had made a specific reference to the findings recorded by the Prescribed Authority. Thus, it could not be said that the appeal has been allowed without upsetting the findings recorded by the Prescribed Authority.

I have considered the arguments of learned counsel for the parties and perused the material placed on record.

It is the specific case of the respondent landlords, who are three real brothers, that Hemant Kumar son of one of them namely Dinesh Kumar, was doing business in adjoining shop bearing no.14/2. The said business is of fast food, confectionery and general merchandise items. He is carrying on the said business in the name and style of 'Kumar and Company' and is the sole proprietor thereof. The said business had flourished with passage of time and consequently, the landlords felt imminent need of additional space. Basant Kumar (applicant no.3-landlord), who was unemployed, wanted to extend a helping hand to Hemant Kumar. He had died during the pendency of the release application, but it did not have any adverse effect on the need of Hemant Kumar, as shop in dispute was sought for accommodating his expanding business.

There was some dispute regarding the exact area of the shop in possession of Hemant Kumar, as according to the assertions made in the release application, the area of the said shop was 8' x 30' but the Prescribed Authority has returned a finding that the area is 9' x 34', but nothing much turns upon it, keeping in mind the nature of need. The specific case of the landlords was that after putting counter on the front side, a very narrow passage is left for ingress and egress of the customers. The business being done by Hemant Kumar, consists of sale and supply of fast food, confectionery and bakery items and it cannot be disputed that for carrying on such a business, ample space is required. The specific case of the landlords was that they were compelled to purchase the adjoining shop, being most suited to their need, for a hefty sum. A landlord has got a right to expand his business and in case he requires additional space for it, the need cannot be said to be malafide. The tenant cannot dictate terms to the landlords as to how he should satisfy his need. The court cannot act as a rationing authority and force the landlord not to expand his business or carry on in the same shop. In the above context, it is worthwhile to quote the following lines from the judgement of the Supreme Court in Sarla Ahuja Vs. United India Insurance Company Ltd, (1998) 8 SCC 119:-

".........When a landlord asserts that he requires his building for his own occupation, the Rent Controller shall not proceed on the presumption that the requirement is not bona fide. When other conditions of the clause are satisfied and when the landlord shows a prima facie case, it is open to the Rent Controller to draw a presumption that the requirement of the landlord is bona fide. It is often said by courts that it is not for the tenant to dictate terms to the landlords as to how else he can adjust himself without getting possession of the tenanted premises. While deciding the question of bona fides of the requirement of the landlord, it is quite necessary to make an endeavour as to how else the landlord could have adjusted himself."

The appellate court was fully justified in holding that the need of Hemant Kumar for additional space for expansion of his existing business is genuine and bonafide and he cannot be compelled to effect expansion of his business at some other place. The view taken by the Prescribed Authority that Hemant Kumar had sufficient space available with him in shop no.14/2, was based on wholly irrelevant consideration that one of his uncles is running his business in a much smaller shop measuring 8' x 16'. It was not at all germane for evaluating the need of Hemant Kumar, having regard to the nature of business being carried on by him.

Now coming to the second argument regarding concealment of businesses and accommodations by the landlords, it is worthwhile to note paragraph 4 of the written statement wherein the tenant gave details of various businesses allegedly carried on by the applicants or members of their family:-

(1) M/s Kumar & Co., 14/2 Taj Raod, Agra

(2) M/s Kumar Daily Need Store, 13 A, Sadar Bazar, Agra

(3) M/s New Kumar Store, Sadar Bazar, Agra

(4) M/s Kumar Brother, Naulakha Atam Market, Gwalior Road, Agra

(5) M/s Kumar Daily Needs, Vibhav Nagar, Agra (A combination of two shops)

(6) M/s Kumar Property Linkers, Vibhav Nagar, Agra (A combination of two shops)

(7) M/s Kumar Pastry Shop, Vibha Nagar, Agra

(8) M/s Kumar Sweets & Spices, Vibhav Nagar, Agra

(9) A newly established Marriage Hall at Fatehabad Road, Agra

The landlords had filed their joint affidavit, in which the above averments were replied in paragraph 24 by stating:-

"24. That allegations of para nos. 3 and 4 of the written statement as stated are false and denied. The existing business in the name & style of 'M/s. Kumar & Co' housed in Shop No.14/2 is unmanageable for want of adequacy of space. The said shop is very small and its front facing Taj Road is very small measuring only 8'-4" and hardly admits a person (customers) to smoothly pass on into the said shop. For ready reference of the Hon'ble Court a measured map of the property No.14/2 is being filed herewith as ANNEXURE 'A' which is self explanatory about the state and extent of said shop with applicants. The business housed in said shop No.14/2 is sole proprietory business of Shri Hemant Kumar son of applicant No.1. Yet another son of applicant No.1 Shri Mani Gupta who has graduated himself is sitting idle and needs to be settled in business. There are more than 7 adult male members in the family of applicants and they all need independent business to run for their livelihood and to gain economic independence in society. A business can also be run through agents and employees by any person. More over the need for expansion of existing business is asserted by applicants and the disputed shop is most befitting one. It is denied that business was also sold by erstwhile landlord to the applicants alongwith his property. The business name 'Kumar' adopted by applicants is their brand name and is familiar amongst the consumers and has attained fame and goodwill due to applicants' uprightness and honest business dealing and sale of genuine consumer products. It is denied that Shri Hemant Kumar was not sitting idle at the time of purchase of property No.14/2 and the disputed property. The applicant No.2 is not engaged in any settled avocation until now. He is extending his helping hand in the conduct of business by Shri Hemant Kumar in Shop No.14/2. He has also his large and grown up family. The disputed shop is genuinely required by applicants for their own personal need and occupation and for that purpose it was so purchased from erstwhile owners. The businesses described in para No.4 of the written statement and attributed to the applicants are not correct. The correct position is stated as under :-

(I) M/s. Kumar & Co., a business of fast food and confectionery goods housed in property (Shop) No.14/2 run and operated by Shri Hemant Kumar, alongwith Shri Basant Kumar, applicant No.2.

(ii) M/s. Kumar Daily Need Store in Shop No.13A, Sadar Bazar, Agra owned by applicant No.3 Shri Mahesh Kumar.

(iii) M/s. New Kumar Store-Sadar Bazar, Agra is a small Kiosk measuring 4'x4', a rented premises.

(iv) M/s. Kumar Brothers at Naulakha, Agra housed in a rented shop.

(v) M/s. Kumar Daily Needs, M/s. Kumar Pastry Shop and M/s. Kumar Property Linkers at Vibhav Nagar, Agra are three shops in tenancy of applicant No.1 Shri Dinesh Kumar and in two shops Grocery business of M/s Kumar Daily Needs of applicant No.1 is housed while in another shop Pestry shop and M/s. Kumar Property Linkers are housed and are run by applicant No.1.

(vi) That there is no business by name Kumar Sweets and Spices at Vibhav Nagar, Agra of the applicants or any members of their family.

(vii) There is no marriage Hall in operation at Fatehabad Road, Agra of applicants. However a plot of land exists at Fatehabad Road, Agra"

The appellate court considered the plea raised in this behalf by the petitioners and it recorded a finding that the business of M/s Kumar & Co. at shop no.14/2 Taj Raod, Agra is run by Hemant Kumar from the adjoining shop. The business of Kumar Daily Need Store from 13A, Sadar Bazar, Agra is carried on by applicant no.3 Mahesh Kumar in a shop owned by him. The businesses mentioned at item nos.3 and 4 are being carried on from tenanted premises. M/s New Kumar Store, Sadar Bazar, Agra is being run from a small kiosk measuring 4' x 4' and likewise, business of M/s Kumar Brother, Naulakha Atam Market, Gwalior Road, Agra is also being run from a rented shop. It is these shops on basis of which the Prescribed Authority drew inference of concealment of businesses by the landlords. It is pertinent to note that the petitioners have filed a supplementary affidavit during course of hearing of the instant petition and in paragraph 3 of the said affidavit, they have stated that both the aforesaid shops are not suitable for them even if the landlords offer the same to the petitioners. They have further stated in the said affidavit that the shop owned by Mahesh Kumar bearing no.13 A, Sadar Bazar, Agra is suitable for the petitioners and they are ready to take the same, if offered to them. It is noteworthy that the said shop, as held by the appellate court, belongs to Mahesh Kumar and from which he is doing his own business. Indisputably, Mahesh Kumar is married and his family comprises of himself, his wife, two grown up daughters and one son. A landlord cannot be compelled to make alternative arrangement for the tenant, even if he has no accommodation to spare with.

In respect of the businesses mentioned at item no.5, 6 and 7, the landlords in their joint affidavit explained that these are three adjoining shops in tenancy of applicant no.1 Dinesh Kumar from where he is doing his independent business of grocery and selling pastries and confectionery items. In respect of item no.8, the specific case of the landlords was that there is no business by the name of M/s Kumar Sweets and Spices at Vaibhav Nagar, as alleged by the tenants. Likewise, in respect of marriage hall at Fatehabad Road, Agra, the explanation furnished by the landlords was that it is not a marriage hall but only an open plot of land. The tenants have not filed any cogent evidence to controvert the case set up in this regard by the landlords.

The appellate court, after considering the aforesaid case set up by the landlords in their joint affidavit, held that the tenants have miserably failed to prove anything contrary to what was stated by the landlords in their joint affidavit. The appellate court has also noted that certain photographs were brought on record by the tenants, but which are not sufficient to falsify the case set up by the landlords in respect of the above businesses. In my considered opinion, the finding recorded by the appellate court in this regard, is a pure finding of fact and does not warrant any interference in exercise of writ jurisdiction.

The appellate court, while discussing the comparative hardship, was conscious of the fact that all daughters of the tenant-petitioner no.1 were not married and that the tenant is a person of limited means. However, the appellate court has held that looking to the genuine and bonafide need of the landlords and regard being had to the fact that the statutory notice under the Proviso of Sub-Section (1) of Section 21 was duly served upon the tenants requesting them to make alternative arrangement but they failed to search out alternative accommodation, the comparative hardship lies in favour of the landlords. The appellate court has held that it was not the burden of the landlords to search out alternative accommodation for the tenant. The tenant had simply filed certain applications before Rent Control Eviction Officer for allotment but they had not made any sincere effort to make alternative arrangement.

It is not disputed that the landlords are real brothers and all of them were married. They have their own families and according to them, there are seven male members in their families and they all need independent business to earn their livelihood and gain economic independence. It was also specifically pleaded that another son of applicant no.1 namely Mani Gupta had graduated in the meantime and he was sitting idle without any business on account of paucity of space. Having regard to the above facts, it cannot be said that their need could be negated by taking recourse to Rule 16 (2) (c), as was done by the Prescribed Authority.

The petitioners had already refused to take shops disclosed at Item nos.3 and 4 in their own written statement and this is an additional factor to approve the finding of the Appellate Authority on the issue of comparative hardship. No doubt, one of the daughter of petitioner no.1 is still unmarried, as submitted by Sri B.K. Srivastava, learned senior counsel during the course of hearing, but the same is not sufficient to decline release of the shop in favour of the landlords, whose need has been found to be genuine and pressing. Concededly, petitioner no.1 was in government service and had retired in the year 2013. It is not disputed that petitioner no.1 is getting pension of approximately Rs.20,000/- per month.

One aspect which need to be mentioned before parting is that in the supplementary affidavit filed today, the petitioners have tried to place on record certain documents to prove that some other businesses are also being run by the landlords and members of their family and these businesses, according to the petitioners, were being run by the landlords and members of their family since a long time much before the release application was filed. However, the petitioners had not taken any plea in respect of those businesses before the courts below. Therefore, I decline to examine the plea and the documents filed in this regard for the first time before this Court.

The appellate court has awarded two years rent as compensation. It is not disputed that under order of this Court, the tenant was paying Rs.3000/- per month as rent and if calculated at the said rate, two years' rent would come to Rs.72,000/-. On persuasion of the Court, Sri Swapnil Kumar consented to paying Rs.1 lakh as compensation to the petitioners, as a condition precedent for vacating the demised premises.

The writ petition stands disposed of accordingly with a direction to the landlord to deposit Rs.1 lakh within three weeks from today before the Prescribed Authority, which shall be released in favour of the petitioners without obtaining any security. The petitioners would get three months from today to vacate the disputed shop. The appellate order shall stand modified to the above extent. In case the shop is not vacated even after expiry of three months, the Prescribed Authority shall execute the release order and ensure delivery of possession to the landlords.

Order Date :- 4.12.2018

SL

Manoj Kumar Gupta, J)