WPMS/89/2021
2021 Latest Caselaw 214 UK

     HIGH COURT OF UTTARAKHAND
                  AT NAINITAL
     ON THE 15TH DAY OF JANUARY, 2021
                       BEFORE:
HON'BLE SHRI JUSTICE SHARAD KUMAR SHARMA


       Writ Petition (M/S) No. 89 of 2021


BETWEEN:
Anil Agarwal S/o Kanti Prashad Agarwal
(Shop Keepar General Store), Male, aged about 56
year, R/o Station Road, (Gali Malani Market) Near
Hindu Panchayati Dharmshala, Kotdwar, District Pauri
Garhwal


                                          ....Petitioner
    (By Sri Kurban Ali, Advocate)


AND:
  1. Smt. Anita Sharma W/o Dinesh Sharma
  2. Ramesh Chandra Sharma S/o Late Shiv Charan
    Sharma
  3. Smt. Rukmani       Devi W/o late Deep Chandra
    Sharma
  4. Smt. Khimli Devi W/o Late Shiv Charan Sharma
    All R/o Station Road (Malini Market) Tehsil
    Kotdwar, District Pauri.
                                         .....Respondents


                    JUDGEMENT

The petitioner is a tenant of a shop, which was let out by the predecessor of the landlord/respondent Shri Shiv Charan Sharma, which was lying in the

property, which was located at station road (gali Malini market) near Hindu Panchayati Dharamshala, Kotdwar, District Pauri Garhwal. The details of which were referred in para 3 of the release application, which is extracted hereunder:-

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2. The respondent had filed an Application, under Section 21(1)(a), on 26.02.2016, seeking release of the tenement shop in question, on the ground that the same is required in order to profitably engaged her daughter in an independent garment business, in order to augment the income of the family and further it was pleaded that since the said property had fallen into the exclusive shares of the respondent/landlord, as a consequence of the family partition, which had taken place the said shop is required by the respondent/landlord for their personal need. Accordingly, the petitioner/tenant was served with the notice on 30.05.2015 by the respondent/landlord to

vacate the premises and to handover the possession of the same.

3. When despite of the aforesaid period as it was given in the notice, the property was not vacated, the release application was instituted on 26.02.2016, before the Prescribed Authority/Civil Judge (Senior Division) Kotdwar, Pauri Garhwal. On the notice being issued on the release application, the petitioner/tenant, has filed his written statement and in the written statement thus filed by the petitioner, a very evasive and vague reply has been extended by the petitioner only to the effect that since he is occupying the disputed shop in question for the last over 29 to 30 years, and that since he has got no other sources of earning and hence his comparative hardship is more sincere and exigent than that of respondent/landlord and his release application ought to have been rejected. Particularly, in the averments, which have been made in para 19 and 20 of the written statement if that is taken into consideration, the petitioner had pleaded, that he is consistently making an attempt to look for an alternative accommodation but that is not available to him. The said pleading in the written statement is absolutely silent with regard to any effort been logically and seriously made, as per law to look for another alternative accommodation.

4. He further submitted that he had requested the Hindu Panchayati Dharamshala Kotdwar to provide him an alternative shop but the Committee managing

the affairs of the Dharamshala had responded that they don't have any vacant shop currently available with them, which could be let out to the petitioner, hence the petitioner pleaded his reasoning of having looked for the alternative accommodation, in the above manner.

5. On the exchange of the pleadings, when the matter was considered by the learned Prescribed Authority on merits, and on 09.02.2018, the learned Prescribed Authority had recorded a specific finding with regard to the bona fide requirement and consequently on appreciation of evidence holding thereof that it is an exclusively within the domain of the respondent/landlord to make all efforts to ensure that the dependents of the family, are independently engaged and particularly in the case at hand where the respondent/landlord has expressed that she has got a qualified daughter, who has already completed her diploma and she wanted her to be engaged in an independent business of running a readymade garment shop and the said statement of the respondent/landlord, which was made in the release application was supported by the statements which was recorded by PW-1, 2 and 3 in the proceedings before the Court below.

6. As far as the aspect pertaining to having made an effort for looking for an alternative accommodation as pleaded in para 19 and 20 of the written statement, in fact, there was no evidence as such which has been brought on record by the petitioner in

order to establish to have made any attempt to look for an alternative accommodation by a recognized legal means as it has been provided under the Act of 13 of 1972. Merely an assertion that he has approached the Dharamshala or he had made a publication for procurement of another alternative shop as per the opinion of this Court, it may not suffice the purpose to establish his attempt for bona fidely making a search for looking for an alternative accommodation.

7. Accordingly, the release of the shop of the landlord/respondent for meeting up the need of the daughter, was held to be a bonafide requirement and on the issue of comparative hardship the learned Prescribed Authority has recorded its reasoning in para 19 of the judgement that since the factum of looking for an alternative accommodation was not established and proved by the petitioner/tenant, as per law on record, the Court has declined to hold that the comparative hardship of the petitioner was more grievous as compare to that of the respondent/landlord and the hence said plea was declined and the release application which was preferred under Section 21(1)(a), was allowed by the Court of Prescribed Authority, vide its judgment dated 09.02.2018.

8. Subsequently, on a challenge being given to the said judgment in an Appeal which was preferred by the petitioner/tenant under Section 22 of the Act, the learned Appellate Court too has recorded a concurrent

finding, consequently upholding the bona fide requirement and the comparative hardship to be in favour of the respondent/landlord, hence the present writ petition as against the appellate Courts judgment dated 20.03.2020 too.

9. After having heard the learned counsel for the petitioner, before this Court also, the petitioner had raised almost an identical plea that since he is occupying the shop for last 30 years, and since he has spent much part of his life from the shop in question, which was only source of his earning, hence the Court should take a pragmatic view and the tenancy ought to have been continued in favour of the petitioner.

10. Secondly, he has submitted from the perspective that to justify his attempt to look for an alternative accommodation, the attempts which he has pleaded in the written statement to have been made by him, ought to have been taken into consideration. He further submits that as far as the respondent/landlord is concerned, since the respondent No. 1, is already running a shop, adjoining to the tenement shop in question and looking to the nature of business in which the respondent/landlord is presently engaged it requires two persons to manage the affairs of the business hence the need of the respondent/landlord may not be said to be bona fide because she could engage her daughter too in the same business which is being carried by the landlord.

11. This Court needs not to express in detail that as far as the assessment which is required to be made by the respondent/landlord, as to in what manner he intends to settle the family member independently in a business is an exclusively choice which is falling within the domain of the respondent/landlord and the tenant cannot in an advisory capacity under law cannot advised the landlord with the business in which the respondent No. 1 was already engaged the daughter too should also be accommodated in the said business in order to justify the opposition which was raised by the petitioner in the written statement filed by him before the Prescribed Authority.

12. The argument which has been raised by the petitioner/tenant pertaining to having made an attempt to look for an alternative accommodation, it is a settled law in view of the judgment rendered by the Allahabad High Court as well as this Court too, that in order to substantiate an attempt to look for an alternative accommodation, the onus of proof lies on the tenant, that he ought to have specifically pleaded in the written statement about an attempt made and the mode adopted to look for an alternative accommodation merely on an unestablished and unproved assertion that he made an attempt and was unable to get any other accommodation may not suffice the purpose in order to lead to a positive conclusion that the petitioner in fact had made sincere efforts to look for an alternative accommodation.

13. Even the judgment of the Allahabad High Court had also observed that in order to establish for looking for an alternative accommodation it would entail for search of an accommodation in accordance with law i.e. in accordance with the provisions contained under Section 12 of the Act No. 13 of 1972.

14. Since in the absence of the said fact being established and proved on record before both the Court below, both the Courts below have recorded a concurrent finding of fact holding thereof that the need of the landlord to establish her qualified daughter in an independent business of a garment shop cannot be said to be not a bona fide requirement and hence the release application has been concurrently and rightly rejected by both the Courts, which does not call for any interference by this Court in the exercise of its supervisory jurisdiction under Article 227 of the Constitution of India, which in itself has got a very limited scope of interference, because the writ Courts should refrain to acquire a jurisdiction, as to be a Court of appeal expanding it to re- scrutinize the findings of facts which had been concurrently recorded by both the Courts below thus the writ petition fails and is accordingly dismissed.

15. The petitioner is directed to vacate the disputed premises and handover the vacant and peaceful possession to the respondent/landlord, within a period of six months from the date of production of the certified copy of the order before the prescribe authority subject to the condition :-Provided

(i) That petitioner furnishes an affidavit by way of an undertaking before the Prescribed Authority, giving an undertaking to the effect that he will be handing over the vacant possession of the shop in question to the respondent/landlord within the aforesaid period.

(ii) During the intervening period of the extended occupancy period of six months, he will not create any sub-tenancy or alter or change the nature of the property in question in any manner whatsoever except without a prior written consent from the respondent/landlord.

(iii) The petitioner further in the undertaking would also submit that during this period of extended occupancy, he would continue to remit the rent, which he was paying at the time when the release application itself was instituted and would ensure to remit the same to the respondent/landlord positively by 10th of each month.

16. In an event, if there is a default in complying with any of the conditions, mentioned above, it will be open for the respondent/landlord to resort to the proceedings for execution of the impugned judgment in accordance with law.

(Sharad Kumar Sharma, J.) Mahinder/