Rent Control No. 136 of 2009. Case: Mohd. Zafar Khan and Ors. Vs District Judge Hardoi and Ors.. High Court of Allahabad (India)
| Case Number | Rent Control No. 136 of 2009 |
| Judges | Anil Kumar, J. |
| Issue | Rent Control Act; Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 - Sections 3(A)(2), 21 and 21(1); Land Acquisition Act, 1894 - Sections 18 and 28A; Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972 - Rules 10, 10(3), 16(1) and 16(2); Constitution of India - Article 226 |
| Judgement Date | May 05, 2011 |
| Court | High Court of Allahabad (India) |
Judgment:
Anil Kumar, J.
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Heard Sri Shafiq Mirza, learned Counsel for Petitioners, Sri Mohd. Arif Khan, Senior Advocate, assisted by Mohd. Adil Khan, counsel for Respondents.
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By means of present writ petition, Petitioners have challenged order dated 03.09.2009 passed by District Judge, Harodi in Rent Appeal No. 2 of 2008, Mohd. Waris Khan v. Mohd. Zafar there by allowing appeal of the landlord in respect to release of a shop.
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Factual matrix of the present case are that Mod. Waris Khan/landlord moved an application for release under Section 21(1)(a) of U.P. Act 13 of 1972 inter alia stating therein that he is owner/landlord of shop situated at Mohalla Vehra Saudagar West, Bara Chauraha, Pargana Bangar, Tehsil and District Hardoi, purchased from its previous owner Rahul Asthana and Kapil Asthana by registered sale deed 05.07.1997, Petitioner are tenant in the said shop on a monthly rent of Rs. 120/-.
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In the release application, landlord/Respondent pleaded that his family is consisting of himself and two children. He failed to get any employment, so the shop in question purchased by him thereafter, gave notice to tenant/Petitioner through his counsel Sri Shiv Sahai Misra on 14.03.2000 served upon them but they did not vacate the shop.
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It is further pleaded in release application that landlord also apprised tenants the shops are available at Shankar Market near Arya Kanya Pathshala, Hardoi but no heed has been paid by tenants in this regard finally they refused to vacate the shop in question which is bona fidely required by him in order to run his business to earn livelihood of his family, so release application filed.
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Petitioner/tenant contested release application by filing written statement denying the need of the landlord, however admitted that he is owner of the shop in question. In the written statement, it has been pleaded on behalf of Petitioner that they filed suit for permanent injunction suit No. 276 of 1997, Shoib Khan v. Kapil Asthana and Ors. in which temporary injunction granted by court concerned on 21.05.1997 served on the landlord/Respondent on 24.05.1997. In spite of knowing the said fact landlord purchased the shop in question with ulterior motive to evict them, further if the landlord has genuine need of shop he should not purchase the shop in question which is under dispute subject to litigation rather purchase a vacant shop which is itself goes to show that the need of the landlord is neither genuine nor bona fide.
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In written statement, it has been further pleaded that the said injunction suit (Suit No. 276 of 1997) decreed in their favour thereafter release application filed, and the landlord is carrying out his business of repair Torch, Pressure Cooker, Stove etc. in a shop which is nearby situated to disputed shop under the tenancy of his father Sri Saukat Ali Zamal. Further during the pendency of release application Sri Saukat Ali Zamal died, as such by way of amendment it was brought on record by the Petitioner, now landlord/Respondent become tenant of the shop initially under the tenancy of his father, as his other brothers are doing separate business. So, there is no bona fide need exist on the part of landlord to get shop in dispute release in his favour.
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In addition to above said facts, it was also brought on record by tenants that they had searched for alternate accommodation/shop in Shanker Market where they are doing business of General Merchant from the shop in dispute in the name and style of Roshan Store which is only source of income of their family but they are unable to get the same.
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After exchange of pleadings, evidences etc. the Prescribed Authority in order to decide P.A. Case No. 16 of 2001, framed three issued, namely"
(1) Kya Prarthi ki prashangat dukan kis aawashyakta hai?
(2) Kya Prarthi ki ukt aawashyakta hai?
(3) Prashngat dukan ke babat tulnatmak kathinai kis paksh ko adhik gohi.
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Prescribed Authority on the basis of material on record in respect to issue No. 1 held that applicant/landlord is need of shop in question. However, whether the need of the said shop is bona fide or not shall be decided while deciding the other issues.
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So far as issue No. 2 is concerned, the Prescribed Authority had come to the conclusion that as per the pleadings of landlord he is an unemployed youth and if he is in need to get shop in question to establish his business, then that in circumstances he should have purchased a vacant shop and not a shop in dispute in respect to which Civil Court passed an decree in Suit No. 276 of 1997. Accordingly, Prescribed Authority held that need of the landlord/Respondent is not bona fide and genuine.
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So far as issue No. 3 is concerned, Prescribed Authority had come to the conclusion on the basis of material on record that if need of landlord is a bona fide and genuine in order to carry out livelihood then in that circumstances he should have purchase an undisputed vacant shop in Shanker Market not shop in dispute. Further Prescribed Authority also given a finding that tenants, during the pendency of the release matter made an effort to search out an alternate accommodation and in this regard they filed an affidavit (paper No. 63Ga) but unable to search any alternate accommodation. So the comparative need of the tenant is more genuine and bona fide in comparison to landlord and by order dated 29.04.2008 dismissed release application, moved by landlord/Respondent.
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Aggrieved by the same, Modh. Waris Khan/landlord filed rent appeal (Rent Appeal No. 2 of 2008) by order dated 03.09.2009, the District Judge/Appellate Authority allowed appeal. While allowing the same, findings given by appellate authority are summarized as under:
(a)For the purpose of release of an accommodation under Section 21(1)(a) of the Act, the landlord has not only to prove that he has a need of the tenanted accommodation but he must also prove that his need is bonafide and genuine. A mere desire to have an accommodation which is under the occupation of a tenant, is not sufficient.
(b) It has been held that occupancy of landlord in the capacity of tenant is itself sufficient indicative of the fact that landlord needs additional accommodation to run his business because existing accommodation which does not fulfill the requirement of the landlord cannot be said to be alternative accommodation. The Respondents have drawn the attention of this Court towards the admission of the Appellant in which he has admitted that his brothers have independent business and he looks after the business of his father. Even if this admission of the Appellant is taken into consideration, his need for the disputed shop would not be held to be malafide in view of the law laid down by the Hon'ble High Court.
(c) The learned Prescribed Authority while deciding issue of comparative hardship, has held that the Respondents shall suffer greater hardship as compared to the Appellant in case the release application is allowed. This finding has been arrived at on the ground that the Respondents shall suffer more hardship as they had been carrying on business since 1963, they had no alternative accommodation to shift their business and they could not get any other shop on rent in spite of efforts made by them. This finding is again contrary to the facts and law both. There is no evidence to prove that the Respondents actually made any effort to search any other shop on rent. They have failed to show as to what efforts were made by them since they got the notice to vacate the shop. It is also important to mention here that the Respondents suggested several shops for purchase by the Appellant but did not themselves purchase any shop for their business. It is also noteworthy that whenever a tenant is asked to vacate the tenanted premises, he suffers some hardship but if the release application is decided keeping in view this hardship, no application for release of any landlord can ever be allowed.
(d) Proceedings of release are going on since the year 1997 and appeal from 2001 and after a gap of about seven years, from the date of filing of appeal no efforts made by tenant to search alternate accommodation. Only on allotment moved, that too without mentioning the details of the property.
(e) Having gone through the pleadings, evidence of the parties and various pronouncements on the subject, I am of the considered opinion that the Appellant has been able to prove his bonafide need for the shop in dispute and the Appellant shall suffer greater hardship as compared to the Respondents if application for release is rejected.
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Aggrieved by order dated 03.09.2009 passed by Appellate Authority/District Judge, Hardoi in Rent Appeal No. 2 of 2008, Md. Waris v. Mohd. Zafar and Ors. Petitioners filed the present writ petition before this Court.
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Sri Shafiq Mirza, learned Counsel for Petitioner while assailing impugned order submits that the landlord/Respondent has no need of the shop in question from which Petitioners are doing their business in case if he has any genuine and bona fide need then he should not purchase the shop in question in respect to which orders passed in Regular Suit No 276 of 1997 but ought to have purchased a vacant shop in the same market where the shop in question is situated hence need of the tenants are is more genuine and bona fide in comparison to the landlord rightly held by the Prescribed Authority but on wrong assumption and presumption set aside by appellate authority.
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It is also submitted by Sri Shafiq Mirza, counsel for Petitioner that landlord Respondent after death of his father doing business of repairing of Torch, Pressure Cooker, Stove etc. from shop situated at a very short distance to disputed shop originally under tenancy of his father and after his death neither any brother of landlord come forward with a plea that they also need shop in dispute to do business nor any eviction proceeding initiated by owner of said shop, as such need of...
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