Ram Gopal And Another vs Shiv Narayan Gupta
2021 Latest Caselaw 3165 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

RESERVED
 
Court No. - 4
 

 
Case :- WRIT - A No. - 10641 of 2020
 

 
Petitioner :- Ram Gopal And Another
 
Respondent :- Shiv Narayan Gupta
 
Counsel for Petitioner :- Shivendu Ojha,Radha Kant Ojha (Senior Adv)
 
Counsel for Respondent :- Harsh Narayan Singh,Yogendra Singh
 

 
Hon'ble Vivek Kumar Birla,J.

1. Heard Sri R.K. Ojha, learned Senior Counsel assisted by Sri Shivendu Ojha, learned counsel for the tenant-petitioners and Sri P.K. Jain, learned Senior Counsel assisted by Sri Yogendra Singh, learned counsel for the landlord-respondents.

2. At the very outset, Sri P.K. Jain, learned Senior Counsel states that he does not want to file any counter affidavit and the petition may be decided at the stage of admission itself, therefore, with the consent of learned counsel for the parties the petition was heard finally and judgment was reserved on 17.2.2021.

3. Present petition has been filed challenging the order dated 24.11.2017 passed by the Civil Judge (Senior Division) / Prescribed Authority, Banda as well as order dated 6.7.2020 passed by the Additional District Judge-IV / Special Court E.C. Act, Banda.

4. The landlord-respondent (hereinafter referred to as the landlord) filed a release application under Section 21(1) (a) of the Act 13 of 1972 (hereinafter referred to as the Act) seeking release of the shop in question against the tenant-petitioner (hereinafter referred to as the tenant).

5. Shorn of details, facts of the case in brief are that the release application was filed on the ground that the shop in question is needed for his son Manish Kumar, who has obtained D.Pharma Diploma and wants to establish his own medical store; nearby shop in question several other medical stores are running, therefore, the shop is appropriately located for running a medical store; tenants have five shops of their own on station road, opposite Jain Dharmshala in a commercial complex centre out of which one shop is in possession of tenant no. 2; three shops have been rented out on a very high rent and one shop is still lying vacant; Nagar Palika Parishad has also constructed a market of 70-80 shops which are also available for rent and in case the tenant has any difficulty he can very easily take any such on rent. The release application was contested by the tenant on the ground that apart from readymade general store, the landlord has other shops also available to him and in one of the shop, which is stated to be a gallary, is, in fact, not a gallary but is a proper shop, which is being run by Manish Kumar himself known as 'Sundari Cloth Store' and it was asserted that this shop is not being run by wife of the landlord but, in fact, is being run by Manish Kumar for whose need the release application has been filed; the shops that are being shown in the possession of the tenants are not vacant for carrying on business of bangles and cosmetic etc; on the station road near the shop of the tenant there are machinery stores and liquors shops and therefore, this market is not an appropriate place and is not suitable for doing business of bangles and cosmetics etc; and by making reference to previous litigation, title of the landlord was also sought to be disputed.

6. The trial court framed several issues. On the issue of landlord and tenant relationship, it was found that it is an admitted case that there is relationship of landlord and tenant between the parties; on issue of bonafide need, the evidence on record was considered in detail and after considering statutory provision and various judgments it was found that it is not in dispute that Manish Kumar is having D.Pharma Diploma, whose registration has also been done but is not in employment and for opening medical store his need is bonafide and genuine; for the purpose of obtaining drug license it is necessary to give boundaries of the shop and that apart, documentary evidence and statements were also considered and it was found that need of the shop to open medical store is bonafide; two shops in possession of the tenants were given to one Laik and one Mahesh; and although evidence was produced that Manish Kumar was allegedly attending a shop, however, it was found that as per provisions of Rule 16 (2) (d) of the Rules of 1972, if the son of the landlord has completed technical education and is not employed in government service and wants to engage in self-employment his need is liable to be considered. That apart, it was found that admittedly, the tenants have several shops on station road and although, landlord has asserted that the shops are available to the tenants in vacant position was not proved by any evidence, however, it was found that after filing of the release application in the year 2011 no effort was made till the delivery of judgment in November, 2017 to get the same vacated as to search out any other alternative accommodation; in the totality of circumstances, it was found that the need of the landlord was genuine and bonafide and that the tenants would have no hardships in case the shop is released in favour of the landlord.

7. The tenants filed appeal that was dismissed by the lower appellate court. A concurrent finding regarding bonafide need of the landlord was found on the ground that the tenant cannot dictate terms to the landlord and the landlord is the best judge to assess his need and if landlord wishes to open new business of pharmaceutical firm for his son, who is D.Pharma holder and has applied for medical shop license, his need is genuine and bonafide; it is the discretion of the landlord that which shop is best suited for carrying on particular business; it was also found that the tenant has five shops in a cream area on station road of the town and only assertion is that the said area is not suitable for ladies cosmetics shop; it was also found that there is no whisper on the part of the tenant that in what manner shops available to him are not suitable to carry business, which is being carried out in the tenanted accommodation. After discussing the law and the issue in detail it was found that the need of the landord is genuine and bonafide and it was also found that the tenant never made any effort to search out any other alternative accommodation for last nine years, although release application was filed in the year 2011, therefore, issue of comparative hardship is also in favour of the landlord.

8. Challenging the impugned judgments, submission of Sri R.K. Ojha, learned Senior Counsel is that the judgments are wholly illegal and perverse and have been passed without assigning any proper or cogent reason; D.Pharma degree was obtained by Manish Kumar in 2004 and it is only after such long seven years he had made up his mind for opening store, therefore, need is not bonafide; in fact, nothing was produced by the landlord before the courts below to indicate that Manish Kumar is not carrying on business on the shop, which is allegedly shown as gallary known as Sundari Cloth Store and that apart, other shops belonging to landlord are also available in the near vicinity; the tenants are old tenants and their father has given money for new construction of shop after demolition of the property, therefore, the release application cannot be allowed. A feeble attempt was made to dispute the title of the landlord, however, no emphasis was given on the same. The crux of the submission of learned counsel for the petitioner is that need of Manish Kumar was not genuine and bonafide; four shops are with the landlord and therefore, landlord has enough accommodation available to them to satisfy the need of his son Manish Kumar; insofar as five shops stated to be in possession of the tenant it was submitted that some are not available to the tenants and in any view of the case, the place at which the shops of the tenants are situated the said area is not suitable for carrying on bangles and cosmetics business. Attention was extensively drawn to the findings recorded by the trial court as well as by the lower appellate court and it was submitted that such findings are based on complete misreading of the evidence on record; attention was also drawn to chalani report filed under Section 34 of the Police Act at page 147 of the paper book in support of his argument that infact Manish Kumar is carrying on cloth business in the shop which was claimed to be a gallary by the landlord. Attention was also drawn to page 136 of the paper book to indicate that in the RTI report five shops were found to be in the ownership of the landlord and in one of the shop Manish Kumar was stated to be in occupation, thus, the landlord has five shops in his possession and need established by the landlord is not genuine and bonafide.

9. Per contra, learned counsel for the landlord submitted that the landlord has four shops in possession and one is, in fact, a gallary; Manish Kumar is admittedly holding D.Pharma Diploma and even if it is stated that he was present on Sundari Cloth Store it is a stop gap arrangement only as the shop is not available for running medical store and therefore, he is doing the cloth merchant business in the gallary of the residential house only as stop gap arrangement. He submitted that chalani report is of the year 2015 only and the release application was filed in the year 2011; no person of the family can be forced to remain unemployed and that even if Manish Kumar is engaged on the cloth store helping out his mother, it is a purely stop gap arrangement; when on information it was found that in municipal record name of Manish Kumar has been recorded, the same has been got corrected and now name of Manish Kumar has been deleted from the records; in any case admitted case of the tenant is that he has five shop although it is being claimed that they are not vacant and are not situated at place where bangles and cosmetics shop business can be established properly; in view of the availability of alternative shop if these shops are being claimed to be not suitable, no efforts for last nine years was ever made by the tenant to search out any alternative accommodation, therefore, issue of comparative hardship is in favour of the landlord.

10. I have considered the submissions and have perused the record.

11. I find that it is a case of the concurrent findings, where the need of Manish Kumar son of the landlord, who has D.Pharma Degree/ Diploma to establish his own shop is genuine and bonafide. It is admitted fact that both the landlord as well as tenant have shops in their possession. The landlord was able to demonstrate that all shops in his possession are occupied and are being used by other family members. A finding has also come on record that near the disputed shop there are other medical stores and such disputed shop is suitable place for running medical store for which the license whereof has been applied for by Manish Kumar. The tenant cannot dictate landlord terms to establish his business at some other place under his ownership and that the landlord is the best judge of his requirement. That apart, the concurrent finding recorded regarding ownership of the tenant of five shops on station road is not in dispute, although it is being claimed that the said market is not suitable for bangles and cosmetics shop. It was specifically asserted that one shop is available to the tenant but the same could not be disputed by the tenant in categorical terms by producing any documentary evidence, therefore, it is clear that the tenant has sufficient alternative shops in his ownership out of which at one is lying vacant and it is also clear that even if no shop is lying vacant, for last nine years no efforts were taken by the tenants to get any of the shop vacated for his business during pendency of the release application and no effort was made to get any other alternative accommodation of these nine years.

12. In such view of the matter, issue of comparative hardship goes in favor of the landlord. All such concurrent findings are findings of fact, which I do not find perverse in nature.

13. In such view of the matter, I do not find any good ground to interfere in the judgments impugned herein.

14. Present petition is devoid of merits and is accordingly dismissed.

15. However, having considered the facts and circumstances of the case, subject to filing of an undertaking by the petitioner-tenant before the Court below, it is provided that:

(1) The tenant-petitioner shall handover the peaceful possession of the premises in question to the landlord-opposite party on or before 30.6.2021;

(2) The tenant-petitioner shall file the undertaking before the Court below to the said effect within two weeks from the date of passing of this order;

(3) The tenant-petitioner shall pay damages @ Rs. 2,000/- per month by 07th day of every succeeding month and continue to deposit the same in the Court below till 30.6.2021 or till the date he vacates the premises, whichever is earlier and the landlord is at liberty to withdraw the said amount;

(4) In the undertaking the tenant-petitioner shall also state that he will not create any interest in favour of the third party in the premises in dispute;

(5) Subject to filing of the said undertaking, the tenant-petitioner 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.

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

16. There shall be no order as to costs.

Order Date :- 5.3.2021

Lalit Shukla