Jai Prakash vs Devendra Kumar Sharma and Another

Rakesh Tiwari, J.—Heard learned Counsel for the parties and perused the record.

The above mentioned writ petition has been filed for quashing the impugned judgment and order dated 5.12.2003 passed by the Additional District Judge, Court No. 7 Bulandshahar.

Brief facts of the case are that an application u/s 21(1)(a) of U.P. Act No. 13 of 1972 for release of the disputed shop was filed by respondent Nos. 1 and 2 claiming that they were owners and landlords of the disputed shop by virtue of a will executed by grand father in their favour. They were carrying on business of sale and purchase of stationary and books in the shop adjacent to the disputed shop of which the petitioner is tenant. It was alleged that respondent No. 2 was going to attain majority soon, hence for settling him the disputed shop was required.

The petitioner contested the release application by filing written statement alleging that the disputed shop was allotted in the name of his father Pyare Lal on 8.10.1970, as he was not made a party to the release application, the same was not maintainable and there did not exist relationship of landlord and tenant between the petitioner and the respondents. The respondents were already having the shop in which they were carrying on business and they have also got a vacant possession of a shop, which was in occupation of Vinod Kumar son of Ratan Lal Rastogi. Thus, respondent No. 1 can settle respondent No. 2 in that shop and the need of respondents was not bona fide. It is stated that in case the petitioner is evicted from the shop in dispute he would suffer grave and irreparable loss.

In support of his case, the petitioner also filed his own affidavit, and an affidavit of his father Pyare Lal as well as, an affidavit of one Tejender Singh. After going through the evidence led by both the parties the Prescribed Authority vide order dated 2.11.1998 rejected the release application on two grounds, Le., firstly that there did not exist any relationship of landlord and tenant between the petitioner and secondly that the shop in dispute was allotted in the name of father of the petitioner who was still alive, therefore, the release application was not maintainable.

Aggrieved by the aforesaid order dated 2.11.1998 the landlord-respondents filed an appeal which was allowed by the appellate court vide order dated 5.12.2004, hence this writ petition.

The counsel for the petitioner submits that two ingredients are necessary for allowing the release application u/s 21(1)(a) of the U.P. Act No. 13 of 1972, i.e., the landlord must prove his bona fide need that he would suffer great hardship in the event the premises in dispute is not released in his favour.

It is urged by the counsel for the petitioner that the appellate court while considering the bona fide need of the landlords has simply narrated the allegation made in the release application and thereafter gave its conclusion that the allegation has been proved by the affidavit of Diwan Chand, therefore, the need of respondent-landlords was bona fide and genuine. The counsel for the petitioner further submits that from the above it is apparent that no reason has been given by the appellate court while considering the issue of bona fide need of the parties and that the appellate court has neither adverted to the pleadings of the petitioner and the written statement filed by the petitioner nor has it considered the evidence adduced by the petitioner in support of his case.

Referring to the Judgment or the appellate court the counsel for the petitioner has urged that there is no whisper in the judgment of the appellate court regarding pleadings, defence and evidence adduced on behalf of the petitioner. It is submitted that the petitioner in his written statement and affidavit has stated that apart from the shop in which the respondent Nos. 1 and 2 are carrying on their business, they have obtained a possession of another shop which was in occupation of Vlnod Kumar son of Ratan Lal Rastogi regarding which the appellate court has not recorded any finding.

It is also urged that the findings of the lower appellate court that the respondents are owners by virtue of will are unsustainable, illegal, vitiated and require reconsideration.

It is submitted that the finding of comparative hardship arrived at by the lower appellate court is vitiated as it has not been considered in the light of Rule 16 of the Rules framed under the U.P. Act No. 13 of 1972. It is further urged that the shop in dispute is situate in Quasba and Tehsil Syana, District Bulandshahar where the petitioner is carrying on business in the shop in dispute since 1970 and would suffer irreparable loss and injury if he is evicted from the shop in dispute. So far as the respondents are concerned, they are affluent persons and are also carrying on the business of stationary and books from the shop in their possession and hence, they will not suffer any hardship if the release application is rejected.

The main contention of the counsel for the respondents is that there does not exist any relationship of landlords and tenant between the petitioner and respondent Nos. 1 and 2. It is stated that the father of the petitioner is the tenant of the disputed shop and no release application has been filed against him. Apart from other documentary evidence, which includes rent receipts, bills, compromise has been entered into between the parties in Misc. Case No. 81 of 1984.

It is urged by the counsel for the respondents that the Prescribed Authority vide its judgment and order dated 2.11.1998 (Annexure-8 to the writ petition) has decided issue No. 1, i.e., whether in between the applicants and the opposite parties there exists relationship of landlord and tenant against the landlord though no other issue was decided. He has referred to the judgment of the Prescribed Authority and submits that the Prescribed Authority on the basis of the judgment in Nutan Kumar and Ors. v. IInd Additional District Judge, Banda and Ors. 1993 (2) ARC 204, has recorded a finding that there does not exist relationship of landlord and tenant between the respondents and the petitioner and the petitioner cannot be tenant without there being an allotment order. It is urged that the aforesaid judgment in Nutan Kumar''s case (supra) has been set aside by the Apex Court in Nutan Kumar and Ors. v. IInd Additional District Judge and Ots. 2002 (2) ARC 645 : 2003 (1) AWC 213 (SC), as such the judgment of the Prescribed Authority cannot be sustained. It is also stated that Appeal No. 13 of 1998 was filed by the respondents before the Additional District Judge, Bulanshahar who vide its judgment dated 5.12.2003 set aside the order of the Prescribed Authority and allowed the release application of the respondents directing the petitioner to be evicted from the premises in dispute within a period of one month and payment of two years'' rent as damages to the respondents.

It is further urged by the counsel for the respondents that the appellate court has framed following four issues:

(1) Whether on the basis of registered will dated 30.6.1978, the respondents are the landlord of the property in dispute?

(2) Whether there exists the relationship of landlord and tenant between the respondents and the petitioner and whether the application for release is maintainable?

(3) Whether the landlord bona fidely requires the accommodation in dispute?

(4) In case of release of the accommodation in dispute in whose favour there is comparative hardship?

However, while deciding issue No. 1, the appellate court has recorded a finding that the will stands proved on the basis of different documents, mentioned therein and on the basis of the evidence on record which has been dealt with in the preceding paragraphs of the judgment holding that the respondents are the landlords of the shop in dispute.

While deciding issue No. 1 the appellate court has recorded a finding that the rent receipts have not been denied which clearly establishes that the petitioner is tenant and the respondents are the landlords of the shop in dispute. Further on the basis of the compromise in Misc. Case No. 81 of 1984 filed by the petitioner u/s 30 of the U.P. Act No. 13 of 1972 against uncle and father of the respondents a compromise has been entered into between the parties wherein it has been agreed that the rent from April, 1984 to 16.12.1985 of the shop in dispute would be paid to the uncle of the respondents and thereafter it shall be paid to the respondents who are owners of the shop in dispute. This fortifies the claim of the respondents as landlord and the petitioner as tenant of the shop in dispute. The appellate court has held that there exists beyond doubt that there is relationship of landlord and tenant between the respondents and the petitioner and the application for release is maintainable.

While deciding issue No. 3 the appellate court relying upon the affidavits filed by the respondents and on the statement on affidavit of Deewan Chand held that the need of the landlord-respondents is bona fide and genuine.

Further while deciding issue No. 4 regarding comparative hardship, the appellate court relying upon the affidavit filed by the respondents has held that the respondent-landlords have no other place except the shop in dispute to carry on business of stationary and further the petitioner has not made any efforts to find out an alternative shop. The father of the petitioner Pyare Lal has purchased a huge property wherein shops have been constructed and business have been carried out and the shops have been let out on his own. It has further recorded a finding that while it stands proved that there exist a relationship of landlord and tenant, need of the respondents-landlord is bonafide and genuine of the shop in dispute and further the landlords would suffer greater hardship in case the shop in dispute is not released in favour of the landlords.

Perusal of rent receipts (Annexure-C.A. 10) show that the petitioner is tenant and the respondents are the landlords. The genuineness of the rent receipts has not been disputed in the rejoinder-affidavit filed by the petitioner wherein it has been mentioned that the petitioner is tenant in the disputed shop. A compromise has been arrived at in Misc. Case No. 81/1984 filed under the provisions of U.P. Act No. 13 of 1972 wherein it has been agreed that after 16.12.1985 rent would be paid to respondent Nos. 1 and 2, which has also not been denied by the petitioner. The respondents have filed the affidavits of Deewan Chand, Atul Kumar and Devendra Kumar (Annexures-C.A. 12, 13 and 14 to the counter-affidavit) to prove that the other shop which was in the tenancy of Vinod Kumar still continues to be in his occupation and tenancy of Vinod Kumar.

The petitioner has not been able to dispute the contents of the aforesaid affidavits but has simply come forward with the plea that the respondents are not in bonafide need of the shop in dispute as they are carrying on their business whereas the business of respondent No. 1 in the said shop is not even sufficient to meet the requirement of respondent No. 1.

The findings of the appellate court on bona fide need and comparative hardship are as under:

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From the aforesaid facts narrated above, it is clearly established beyond doubt that the respondents have genuine and bona fide need of the shop in dispute. There is no other shop with the respondents which is vacant in which the respondents could carry their business and the respondents would suffer great hardship if the shop in dispute is not released in their favour. The findings recorded by the appellate court are based on evidence on record. No perversity or illegality could be shown by the counsel for the petitioner. In the circumstances, the writ petition is liable to be dismissed.

For the reasons stated above, the writ petition is dismissed. No order as to costs.