Lalit Kumar Sahu vs Smt. Shanti Devi
2018 Latest Caselaw 3317 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 37
 

 
Case :- WRIT - A No. - 1996 of 2008
 

 
Petitioner :- Lalit Kumar Sahu
 
Respondent :- Smt. Shanti Devi
 
Counsel for Petitioner :- J.H. Khan,K.M.Garg,W.H. Khan
 
Counsel for Respondent :- A.K. Pandey,Ashok Kumar Pandey
 

 
Hon'ble Siddhartha Varma,J.

The landlord-petitioner filed an application for the release of the shop in question for carrying on business of sanitary wares. The application for release was allowed by the Prescribed Authority on 25.2.2003 and it released the shop no.84, Vivekanand Marg, Allahabad in favour of the petitioner. The tenant-respondent, however, filed an Appeal which was numbered as Rent Control Appeal No.14 of 2003 and when this Appeal came to be allowed on 12.10.2007 the instant writ petition was filed by the petitioner.

When the petitioner-landlord had filed the Release Application, he had specifically stated that the shop in question was a commercial shop and that after he had bought the same he required it for the purposes of establishing himself. He had stated that he required the shop to run the business of sanitary wares etc. The plaintiff-landlord had very categorically stated that the shop was a commercial one from which the tenant was selling flowers and garments etc. The opposite party-tenant had filed a written statement/reply to the Release Application in which she had admitted that the applicant was a landlord and the owner of the shop. However, in paragraph-4 of the written statement she had stated that the premises in question was not a shop but a residential accommodation and in it the opposite party-tenant had been residing for the past 17 years. Simply because she was by caste a Gardner, she had also started with the business of selling flowers. She also stated that the comparative hardship to her would be much greater than the hardship which the petitioner might be facing if the tenant-respondent vacated the shop in question which was not a commercial shop. The Prescribed Authority found for sure that the shop was a commercial one and allowed the Release Application. It also found that the petitioner-landlord bonafidely required the shop in question. The Prescribed Authority also found that comparative hardship of the landlord was much greater without the shop and thereafter released the shop in question on 25.2.2003. Upon Appeal, the Appellate Court reversed the judgment of the Prescribed Authority and found that the shop in question was predominantly being used for residential purposes and that the respondents were also staying in it and, therefore, the Release Application was, under law, not maintainable.

Apart from the fact that the Appellate Court found that the premises in question were not commercial in nature and was being used for residential purposes, it also found that the landlord had other properties and allowed the Appeal on 12.10.2007.

Learned counsel for the petitioner assailed the appellate order and submitted that the accommodation was a small one measuring 88.45 sq.ft and therefore, could never have been used for both, residential and commercial purposes. Furthermore, he submits that the tenant - respondent herself in Original Suit No. 90 of 1990 had admitted that she was doing business of selling flowers and garments and her son was doing business of plastic pipe and this aspect was not considered at all. Learned counsel relying on AIR 1960 SC 100 (Balajiwale v. Gopal Vinayak Gosavi and others) submitted admission was the best evidence and when the tenant herself had admitted that the premises was being used for commercial purposes then no other view could have been taken.

Learned counsel for the petitioner-landlord also submitted that an undue importance was given to the suit which was filed by the petitioner against the seller, Shitla Prasad in which the premises was described as a house. Furthermore, learned counsel for the petitioner submitted that the respondent had herself admitted in the Suit No.90/1995 which was filed by her that she was giving rent for a commercial shop. Learned counsel also submitted that when the petitioner's family was a large family having almost six male members as had been found by the Prescribed Authority then definitely there was a bonafide need for him to settle himself in business which was quite apart from the businesses which the other members of the family were doing from other buildings in the possession of the family. Learned counsel for the petitioner also drew the attention of the Court to a supplementary affidavit filed by the petitioner on 18.4.2011 and was sworn on 10.4.2011 wherein the Assessment Register of the local municipality was filed and it was shown in the same that the property was a commercial one.

Learned counsel for the opposite party Sri Ashok Kumar Pandey, however, submitted that the respondent was a poor person who was along with the business also living in the small structure and, therefore, predominantly the premises was being used for residential purposes and therefore, could not have been released for commercial purposes. He further submitted that after the death of the original tenant there were as many as four sons of hers who were continuing to reside in the premises in question. Further, learned counsel for the respondent-tenant submitted that the respondents who were now four in number required the premises much more than the petitioner required.

Having heard the learned counsel for the parties, I found that the finding arrived at by the Appellate Court that the premises in question was predominantly a residential accommodation is patently erroneous. The premises was just 88.45 sq.ft in area and in that area four males with their families could not have resided. It was definitely therefore, only being used for commercial purposes. Further, I find that the assessment register which has been filed by the petitioner also showed that the shop in dispute was of a commercial nature. An entry in an Assessment Register has to be taken seriously unless it is proved to be incorrect.

The Appellate Court has also erroneously found that the petitioner had other accommodations. The Appellate Court did not consider that the petitioner's family was a large one and the petitioner himself bonafidely required the shop in question for starting a business of his own.

Under such circumstances, I find that the premises in question was a commercial shop and that it was bonafidely required by the petitioner. The writ petition is thus being allowed. The appellate order dated 12.10.2007 is quashed.

Upon the final order being passed the learned counsel for the tenants/respondents prayed that a year's time be granted to the tenants to vacate the premises in question.

In such view of the matter, the respondents-tenants are granted time up to 24.10.2019 to vacate the premises in question, subject to their filing of an undertaking before the Court below, which shall be as under :

(1) The tenants-respondents shall handover peaceful possession of the premises in question to the landlord-opposite party on or before 24.10.2019.

(2) The tenants-respondents shall file the undertaking before the Court below to the said effect within two weeks from the date of receipt of a certified copy of this order;

(3) The tenants-respondents shall continue to pay as damages by seventh day of every succeeding month the amount which they had been paying as rent and shall continue to deposit the same in the Court below till 24.10.2019 or till the date they vacate the premises, whichever is earlier, and the landlord shall be at liberty to withdraw the said amount;

(4) In the undertaking the tenants-respondents shall also state that they would not create any interest in favour of any third party in the premises in dispute;

(5) Subject to the filing of the said undertaking, the tenants-respondents shall not be evicted from the premises in question till the aforesaid period;

(6) It is made clear that in case of default of any of the conditions mentioned herein-above, the protection granted by this Court shall stand vacated automatically; and

(7) In case the premises is not vacated as per the undertaking given by the respondents, they shall also be liable for contempt.

The writ petition is, accordingly, allowed with the aforesaid observations.

There shall be no order as to costs.

Order Date :- 25.10.2018

Ashish Pd.

(Siddhartha Varma,J.)