Anand Prakash vs The Addl. District Judge and Others

M.M. Ghildiyal, J.—Heard Sri S.K. Jain, learned Counsel for the Petitioner and Sri K.N. Joshi, learned Counsel for the Respondent No. 3.

By means of this writ petition, the Petitioner, who is landlord of the premises in dispute, has prayed to issue a writ of certiorari for quashing the order dated 05-01-2000 passed by Respondent No. 1/Addl. District Judge, Dehradun in Rent Appeal No. 106 of 1988.

The facts, in brief, of the case are that the Petitioner is landlord of the house No. 47 of Akhara Mohalla, district Dehradun. The first floor of the said accommodation is being used by him for his residential purpose alongwith his family which consist apart from the landlord his wife, his two sons, namely Ramesh aged about 34 years & Hari Ram aged about 25 years and Km. Kanta, the unmarried daughter, both sons of the Petitioner are unemployed; the Petitioner himself has retired from service on 31-05-1995 and is getting pension of Rs. 1,200/- per month. Apart from the aforesaid members, the married daughter Smt. Kusum also used to visit the Petitioner at Dehradun. After retirement from service on 31st May 1995 the Petitioner, on 19th July 1995, moved an application u/s 21(1)(a) of the Act No. 13 of 1972 for release of shop in question, which is in the ground floor of the accommodation and of which the Respondent No. 3 is tenant, on the ground that after retirement from O.N.G.C. the Petitioner is getting only Rs. 1,200/- per month as pension and he has to manage the family of four members and, as such, he wants to augment of his income by doing business in the premises in suit alongwith his sons who are educated and unemployed. Thus, the ground taken by the Petitioner/landlord for release of the accommodation in dispute was of two folds first was to augment his income and the second was to settle his two unemployed sons. In para-6 of the application, the Petitioner has submitted as under:

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It was stated by the Petitioner/landlord in his application that the Respondent is running the business of playing of band in marriage parties from the disputed shop. The Respondent/tenant is a permanent resident of Roorkee and family of the Respondent/tenant also resides at Roorkee where he is serving with Dress Well Drycleaners at 22 Civil Lines, Roorkee. He has further submitted that the Respondent used to visit Dehradun occasionally to receive the income received by the persons who were actually engaged in playing the band. The disputed shop is, in fact, one room in the ground floor, which is divided into two parts. The shop, in fact, is lying vacant and is locked. The Petitioner has also made an allegation that the Respondent is also having another shop No. 51,at Akhara Mohalla, Dehradun. However, this fact was denied by the Respondent. It is not disputed by either of the parties that the Respondent is permanent resident of Roorkee; he has a permanent house at Roorkee; his family is residing at Roorkee. However, the Respondent has submitted that he has worked with the Dress Well Drycleaners for a period during 1990-95, when the aforesaid shop was demolished but after the reconstruction of the premises the Respondent was given reentry in the accommodation in suit in pursuance to the order passed by the High Court.

The Prescribed Authority vide its order dated 13-05-1998 allowed the application of the Petitioner holding that the need of the Petitioner is bonafide. While holding the comparative hardship of the Petitioner, the Prescribed Authority has given findings that the Respondent is a permanent resident of Roorkee; he is serving in the city of Roorkee and his family is also residing there. These facts have not been denied by the Respondent before the Prescribed Authority, rather, it as stated on behalf of the Respondent that serving at Roorkee was of temporary in nature.

The Prescribed Authority found that the Petitioner wants to increase his income as he is getting only Rs. 1,200/- per month pension and he has to manage the family of five persons. Further the Prescribed Authority found that the need of the Petitioner is bonafide because the two sons of the Petitioner are unemployed. Aggrieved by the order dated 13-05-1998 passed by the Prescribed Authority, the Respondent No. 3 filed appeal which was allowed by the Addl. District Judge, Dehradun vide its order dated 05-01-2000. The learned Addl. District Judge, while allowing the appeal has held that the landlord has not indicated the precise nature of business, which he intends to start in the premises in dispute.

Learned Counsel for the Petitioner, Sri S.K. Jain has placed reliance on the judgment of the Apex Court in the case of Raj Kumar Khaitan and others Vs. Bibi Zubaida Khatun and another, . In para-3 of the aforesaid judgment, the Apex Court has held that it was not necessary for the Appellants/landlord to indicate the precise nature of the business, which they intended to start in the premises. Even if the nature of business would have been indicated nobody could bind the landlords to start the same business in the premises after it was vacated.

Counsel for the Petitioner has submitted that in view of the above observations made by the Apex Court, the findings recorded by the Addl. District Judge, in this regard, are not correct. I find force in the submission of the learned Counsel for the Petitioner. The learned Addl. District Judge has further held that the landlord could not show that he has enough funds to start the business. In this regard, learned Counsel for the Petitioner has relied upon the judgment of the Hon''ble Supreme Court in the case of G.C. Kapoor v. Nand Kumar Bhasin and Ors. reported in 2001 (45) ALR 808. In para-10 of the aforesaid judgment Their Lordship has held as under:

Regarding financial capacity of the Appellant, the courts below have held that Appellant did not have financial capacity. From records, we find that the Appellant had produced revenue records to show his ownership over agricultural land in addition to the suit premises and made a categorical statement that he would be able to raise fund from financial institutions. Both the courts below with mathematical precision considered this aspect while coming to the fact that he does not have financial capacity. We are of the view that these are irrelevant considerations, as the question of having necessary fund to start the business is not, at all, necessary in view of the law laid down by this Court in the above decision namely Dattatraya Laxman Kamble (supra). That apart, as the Appellant has got immovable property, it would not be difficult for him to raise necessary fund and therefore we hold that the finding on this point of the courts below is not sustainable.

Regarding financial capacity of the Petitioner, learned Counsel has further placed reliance on the judgment of Allahabad High Court in the case of Lekh Raj Sindhi v. Ram Lakhan Gupta and Ors. reported in 1998 (34) ALR 98 in which the Lucknow Bench of the Allahabad High Court has held that the landlord''s need to augment his meager income from pension by setting up business for his sons is also bonafide and genuine. Therefore, the findings recorded by the Prescribed Authority reverted by the Appellate Authority is contrary to the established principle of law as it would be perverse and thus, is liable to be set aside. While recording the finding, the Prescribed Authority has, on the basis of record, held that the Petitioner is a retired employee who is getting Rs. 1,200/- per month pension and he has to manage the family of five persons including two sons, which are unemployed. These facts were not denied by the Respondent and consequently, the Prescribed Authority found that the need of the Petitioner was bonafide.

In regard to the comparative hardship, the Prescribed Authority has held that the Respondent is a permanent resident of Roorkee, he has his house at Roorkee and his family is also residing there. The Respondent has also serving at Roorkee, though temporarily. By showing some receipt which are not signed by the Respondent, the Respondent tried to show that he is engaged in the business in the disputed shop, but the Prescribed Authority has recorded the finding that, in case, the shop is not released in favour of Petitioner, he will suffer greater comparative hardship rather than the Respondent. These findings were recorded on the basis of documents, which have been upset by the Appellate Authority against the record.

No other ground was raised before me.

In view of the aforesaid discussions, the writ petition is allowed. The impugned order dated 05-01-2000 passed by the Addl. District Judge, Dehradun is quashed. No order as to costs.

Learned Counsel for the Respondent No. 3 has prayed that the Respondent be granted six months'' time to vacate the disputed shop. Keeping in view of the aforesaid facts, it will be just and proper if the Respondent may be allowed six months'' time to vacate the premises in dispute. Accordingly, the Respondent is granted six months'' time to vacate the premises in dispute provided he gives an undertaking before the lower Court to vacate the house prior to 25th March 2005. The Respondent shall give the undertaking within two weeks from today.