Allahabad High Court
Vishambhar Dayal Raghav vs Prescribed Authority And Another on 27 February, 2023
Bench: Salil Kumar Rai
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 38
Case :- WRIT - A No. - 3674 of 2023
Petitioner :- Vishambhar Dayal Raghav
Respondent :- Prescribed Authority And Another
Counsel for Petitioner :- Gopal Misra,Babit Kumar
Counsel for Respondent :- C.S.C.,Amir Khan
Hon'ble Salil Kumar Rai,J.
Heard the counsel for the parties.
This is a tenant's petition challenging the judgment and order dated 19.1.2019 passed by the Prescribed Authority, Khurza, District Bulandshahr allowing Prescribed Authority Case No. 05 of 2015 registered under Section 21(1)(a) of Act No. 13 of 1972 by the respondent - landlord as well as against the judgment and order dated 24.1.2023 passed by the Additional District Judge, Khurza, District Bulandshahr dismissing Rent Control Appeal No. 04 of 2019 filed against the order of the Prescribed Authority.
The facts of the case are that the petitioner is admittedly a tenant in Shop Nos. 2 and 3 at the rate of Rs.450/- per month of which the respondent is the landlord. Apart from the aforesaid two shops, the respondent - landlord has two other shops in the same building. Shop No. 1 is under the tenancy of one Shareef and the fourth shop is in possession of the respondent - landlord who is a barber by profession. The respondent - landlord instituted Prescribed Authority Case No. 05 of 2015 on the plea that the two shops were bona fide required by the landlord to open a confectionery shop for his two sons who were unemployed at present. It was stated in the release application that the petitioner - tenant is in the possession of ready-made garments which can be shifted at some other place.
The tenant - petitioner contested the case of the respondent - landlord stating that the shops were being used by him for the business of ready-made garments and the son of the tenant is also in the aforesaid business which is the only source of livelihood for the tenant and his family. It was stated in the objections that the sons of the respondent - landlord are already engaged with the respondent - landlord and do not have to be settled in any independent business and the petitioner - tenant shall suffer more hardship if he is evicted from the demised premises as he had already invested more than Rs.20,00,000/- in the business of ready-made garments. On the aforesaid averments, the petitioner - tenant pleaded that the release application be dismissed.
It has come on record that the respondent has eight children and his elder daughter is disabled suffering from 100% disability. It also appears from the records that while denying the need set-up by the respondent - landlord, the petitioner - tenant had also pleaded that the demised premises were not governed by Act No. 13 of 1972 as the shop was, for the first time, assessed for tax by the concerned municipal body in 2005.
The courts below, after considering the material evidence, recorded a finding that the six sons and two daughters of the respondent - landlord were unemployed though the sons of the respondent - landlord were at present temporarily assisting his father as a barber. It also appears from the records that in proceedings before the appellate court, the petitioner - tenant had filed Paper No. 48-A which was a letter dated 17.1.2022 issued by the Executive Officer, Nagar Panchayat Chathari, District Bulandshahr stating that on inquiry, it was found that the building was, for the first time, assessed for house tax in 2001. It is also on record that on an application filed under the Right to Information Act by the respondent - landlord, the Public Information Officer of the Nagar Panchayat, Chathari had stated that no such document had ever been issued by the Nagar Panchayat. The said information was filed by the respondent - landlord before the appellate court and was marked as Paper No. 63-A.
The courts below, after considering the evidence on record, held that the petitioner - tenant had not been able to prove that Act No. 13 of 1972 was not applicable on the demised premises and the fact that the petitioner was inducted as a tenant in the demised premises in 2005 does not by itself prove that the building was constructed in 2005. It was the case of the landlord - respondent that the building exists since before 1970. It also transpires from the records that during the pendency of the appeal before the appellate court, an agreement was reached between the respondent - landlord and the son of the petitioner - tenant to rent the demised premises to the son of the tenant for eight years on a rent of Rs.1,30,000/-. The aforesaid document was also produced by the petitioner - tenant before the appellate court in support of the argument that the premises were not bona fide required by the respondent - landlord. The lower appellate court has rejected the plea of the petitioner - tenant on the ground that the said document was not registered and, therefore, had no evidentiary value.
I do not find any illegality in the finding of the court below in as much as at the time of the aforesaid agreement, the demised premises was occupied by the petitioner - tenant and, therefore, the rent agreement had no effect in law.
So far as the bona fide need set-up by the respondent - landlord is concerned, the courts below, after considering the number of family members of the respondent - landlord and the fact that every member of the family of the landlord has the right to start his own independent business, have held that the respondent - landlord bona fide required the demised premises. So far as the comparative hardship is concerned, the courts below have also decided in favour of the respondent - landlord after noticing that the tenant - petitioner had two buildings under his ownership where he could shift his business and also had agricultural properties.
The findings regarding bona fide need and comparative hardship have been recorded by the courts below after considering the material evidence on record and are concurrent findings of facts. I do no find any perversity or any other illegality in the same so as to occasion interference by this Court under Article 226 of the Constitution of India.
For the aforesaid reasons, the prayer to quash the orders dated 19.1.2019 passed by the Prescribed Authority and 24.1.2023 passed by the Additional District Judge, Khurza, District Bulandshahr is liable to be rejected and is, hereby, rejected.
However, considering the circumstances of the case, it is directed that the petitioner shall not be evicted from the demised premises till 31st July, 2023 in pursuance to the order passed by the Prescribed Authority provided he files an affidavit before the Prescribed Authority within two weeks from today undertaking that he shall vacate the demised premises by 30th July, 2023 and hand over the possession of the same to the respondent - landlord by the said date.
On failure of the petitioner - tenant to comply with any of the aforesaid directions, the Prescribed Authority shall proceed to enforce his order dated 19.1.2019 expeditiously, preferably within a period of three months from the date an application for the said purpose is filed by the respondent - landlord.
With the aforesaid directions, the writ petition is disposed of.
Order Date :- 27.2.2023
Satyam
