Baldev Raj Ahuja vs Smt. Jyoti Singh And 2 Others
2021 Latest Caselaw 4232 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 4
 

 
Case :- WRIT - A No. - 4798 of 2020
 

 
Petitioner :- Baldev Raj Ahuja
 
Respondent :- Smt. Jyoti Singh And 2 Others
 
Counsel for Petitioner :- Abu Bakht,Pramod Kumar Jain (Senior Adv.)
 
Counsel for Respondent :- Rama Goel Bansal
 

 
Hon'ble Vivek Kumar Birla,J.

Heard Sri P.K. Jain, learned Senior Counsel, assisted by Sri Anil Kumar Tripathi, learned counsel appearing for the tenant petitioner and Ms. Rama Goel Bansal, learned counsel appearing for the landlord respondents.

Present writ petition has been filed seeking quashing of the order dated 17.2.2020 passed by the Additional District and Sessions Judge, Court No. 3, Moradabad in Rent Control Appeal No. 8 of 2016 filed as Annexure-19 to the writ petition and the order dated 28.7.2016 passed by the Prescribed Authority in P.A. Case No. 8 of 2014.

I have heard learned counsel for the parties at length and have perused the record.

In the present writ petition, the impugned order dated 17.2.2020 passed in the rent control appeal, which was decided after the matter was remanded back to the appellate authority and the order of the Prescribed Authority dated 28.7.2016 are under challenge.

This litigation has a long series of litigation and twice the matter was remanded back to the appellate authority to decide the appeal afresh in the light of the observations made by this Court.

For deciding the present controversy it would be sufficient to take note of the last order of this Court dated 26.11.2018 passed in Writ A No. 24838 of 2018, Baldev Raj Ahuja Vs. Smt. Jyoti Singh And 2 Others, which is quoted as under:

"Heard Sri P.K. Jain, learned senior counsel assisted by Sri Manish Tandon for the petitioner and Sri Rajeev Trivedi for the respondents. With their consent, the instant writ petiiion is being decided finally, without inviting a formal counter affidavit.

The writ petition arises out of orders passed in proceeding under Section 21(1)(a) of U.P. Act No. 13 of 1972 (hereinafter referred to as 'Act'). A release application was filed under the said provision by the respondents (hereinafter referred to as 'landlords') setting up need of Smt. Jyoti Singh (respondent No. 1). It was alleged that she would start a business of selling imported vegetables from the shop in the tenancy of the petitioner. She claimed that she had no other alternative accommodation to start the said business. The release application was contested by the petitioner inter alia on the ground that there were several vacant shops in the same market from where she could start her business. Thus, the alleged need of respondent No. 1 for the shop in dispute was specifically denied. The Prescribed Authority by an order dated 28.7.2016 allowed the release application and directed for eviction of the petitioner. Aggrieved thereby, the petitioner filed Rent Control Appeal No. 8/2016, which was disposed of by judgment dated 28.4.2018. The release order passed by the Prescribed Authority was modified to the extent that the petitioner was held entitled to 'L' shaped shop near ATM or alternative shop situated on Parsadi Lal Road, as a condition for vacating tenanted shop. Aggrieved by the order of the Appellate Authority, the petitioner as well as the respondents filed separate petitions before this Court under Article 227 of the Constitution and both these petitions were heard and decided by a common order dated 30.5.2018. The Court with consent of counsel for the parties quashed the appellate order and remitted the matter back to the Appellate Authority for deciding the appeal a fresh. In pursuance thereof, the Appellate Authority has taken a fresh decision whereby, the appeal filed by the petitioner has been dismissed by judgment dated 5.10.2018 and he has been granted six month's time to vacate. Aggrieved by the said judgment, the instant petition has been filed.

Sri P.K. Jain, learned senior counsel assisted by Sri Manish Tandon appearing on behalf of the petitioner invited the attention of the Court towards finding recorded by the Appellate Authority while deciding issue No. 1 relating to bona fide need of respondent No. 1. He points out that the plea of the petitioner that ten shops are lying vacant in Tyagi Market belonging to the respondents and the alleged need of respondent No. 1 could be fulfilled by starting business from any of these ten vacant shops was specifically noted. Thereafter, the Appellate Authority noted the case set-up by the respondents by referring to plaint of Case No. 31/2005 brought on record along with list 58Ga. In paragraph 4 & 6 thereof, it is noted, that the plaintiff had mentioned about her other business and coaching. The Appellate Court thereafter without discussing the case of the parties and the evidence led by them in that regard and also without recording any reason as to how these shops were not available to the landlords jumped to a finding that no vacant shop is available with the landlords and accordingly held that need of respondent No. 1 is bona fide. It is submitted that without discussing the pleadings and the evidence and also without recording any reason, the Prescribed Authority has erroneously jumped to a conclusion that no vacant shop is available and that need is bona fide. According to him, such a finding is not sustainable in law.

Learned counsel for the landlords is not in a position to point out to any discussion made by the Appellate Authority in regard to rival pleas raised by them on the said aspect. He, therefore, very fairly agreed for the appellate judgment being quashed and the matter being remitted back to the Appellate Authority for deciding the issue of bona fide need as well as other issues, after taking into consideration the pleadings of the respective parties and documentary evidence on record.

Accordingly, the impugned judgment of the Appellate Court dated 5.10.2018 is quashed. The matter is remitted back to the Appellate Authority to decide the appeal a fresh in the light of observations made above, expeditiously, preferably within a period of three months from the date of receipt of certified copy of this order.

The writ petition stands disposed of as above."

The release application was allowed by the Prescribed Authority and now for the third time the appeal filed by the tenant - petitioner has been rejected. After considering the arguments I find that the arguments have been advanced on factual aspect of the matter and both the courts below have recorded a concurrent findings of fact. The scope of interference under Article 226 of the Constitution of India is very limited and this being a third round of litigation and the lower appellate court has decided the against the tenant for third time I do not find any good ground to interfere in the concurrent findings of fact recorded by both the courts below.

In such view of the matter, I do not find any jurisdictional error or perversity in the findings recorded and the conclusion drawn by the courts below. Present petition is devoid of merits and is accordingly dismissed.

At this stage, Sri P.K. Jain, learned Senior Counsel, appearing for the tenant-petitioner prays for some time.

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 30.9.2021;

(2) The tenant-petitioner shall file the undertaking before the Court below to the said effect within two weeks;

(3) The tenant-petitioner shall pay entire admitted amount within a period of two months from the date of receipt of copy of this order.

(4) The tenant-petitioner shall pay damages @ Rs. 3,000/- per month by 07th day of every succeeding month and continue to deposit the same in the Court below till 30.9.2021 or till the date he vacates the premises, whichever is earlier and the landlord is at liberty to withdraw the said amount;

(5) 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;

(6) Subject to filing of the said undertaking, the tenant-petitioner shall not be evicted from the premises in question till the aforesaid period;

(7) 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.

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

There shall be no order as to costs.

Order Date :- 22.3.2021

p.s.