Kanak Agarwal and Others vs Asha Rani

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

The Prescribed Authority by means of the order dated 2382004 allowed the release application of the respondent/landlord. Aggrieved the petitioner filed Rent Appeal no. 27 of 2004 Deepak Kumar son of Virendra Kumar (deceased) through L.Rs. Smt. Kanak Agarwal and others vs. Smt. Asha Rani and others. Aggrieved by the order dated 2382004 the appellate court dismissed the appeal filed by the petitioner/tenant by order dated 532008. The petitioner has challenged the aforesaid two orders dated 2382004 passed by the Prescribed Authority and the order dated 532008 passed by the appellate court, in this writ petition.

Sri P.K. Jain, counsel for the petitioner submits that the respondent/landlord moved release application under section 21(1)(b) of the U.P. Act No.13 of 1982 which was registered as case no. 7 of 1994 Smt. Asha Rani vs. Virendra Kumar alias Matarumal (since dead) and others for release of the accommodation in dispute consisting of four godown as shown in the map appended as Annexure 3 to the writ petition. The tenant in his written statement took a specific ground that the application moved by the respondent/landlord under section 21(1)(b) of the Act was misconceived as the building was not in dilapidated condition.

In the circumstances, the respondent/landlord moved an amendment application interalia that the accommodation in dispute is required under section 21(1)(a) for personal need. The property in dispute consist of four godown in an area 22 ft. 1 Inch x 53 ft. 8 inch. The contention of Sri P.K. Jain, counsel for the petitioner is that during the pendency of the release application, four shops were constructed by the petitioner at Munsif Road, situated at a distance of about 4 5 kms. From the property in dispute. Out of the four shops, three shops constructed by the respondent/landlord are stated to have been let out on rent and one is still lying vacant.

The next contention of Sri P.K. Jain, counsel for the petitioner is that it is admitted fact that four shops constructed by the respondent have been let out by him except one which is still lying vacant and that an offer was by the tenant/petitioner to the landlord for permitting him to remain in possession in two godowns/shops in the back half portion of the property in dispute as the tenant is ready to vacate the front half portion of the property consisting of two godowns/shops to the respondent/landlord. This offer was made by the tenant by means of an application dated 1392007 which is appended as Annexure no. 12 to the writ petition. For ready reference, relevant para of the application dated 1392007 is reproduced hereinudner :

According to the counsel for the petitioner, the property in dispute is the joint property of the landlord Vishwak Kumar with his brother Vishal Kumar and that the lower appellate court in paragraph no. 7 of the order dated 2382004 has not given any cogent reason for not considering the offer of the tenant for part release of the property in dispute under his tenancy. In paragraph 7Ka the appellate court has held thus in respect of part release of the property in dispute :

As regards construction of four shops are concerned out of which three are let out and one is still lying vacant, the counsel for the petitioner has drawn the attention of the court to paragraph 11 and 13 of the affidavit filed by Adesh Kumar on behalf of the petitioner appended as Annexure 10 to the writ petition this are thus :

11.

It is lastly stated that it is evident from the excerpt of paragraph 15 of the judgment of the appellate court that the property of the landlord Vishwas Kumar is a joint property with his brother Vishal Kumar and it is an admitted fact. The excerpt relied upon by the counsel for the petitioner in this regard is as under :

Counsel for the petitioner, on the basis of above has contested the only point that question of part release of the petitioner ought to have been considered by the courts below which has not been considered for deciding bona fide need of the landlord.

Per contra counsel for the respondent Sri Atu Dayal has relied upon paragraph nos. 2 of the written statement dated 2192002 and paragraph nos. 24 and 25 of the additional written statement filed by the petitioner/tenant in case no. 7 of 1994 Smt. Asha Rani vs. Virendra Kumar alias Mataru Mal (since dead) and others. These paragraphs read thus :

It is argued that from perusal of aforesaid paragraphs, it is clear that the petitioner/tenant has shifted her business to the Mandi Samiti and has also closed her business of Menthol Composing Agency in the godowns/shops in dispute but has kept some goods in the premises in dispute in order to establish that she has not removed material facts from the shops in dispute due to ulterior and malafide reasons.

Relying upon paragraph nos. 6, 8, 11 and 13 of Annexure No.13 appended to the writ petition, counsel for the respondent has contended that the petitioner has himself constructed some shops which he has sold out and thus the question of part release of the accommodation in dispute cannot be looked into by the court below. In this regard reliance has been placed by him in Qamar Khan vs. IInd ADJ, Dehradun and others reported in 1999 (I)ARC 427, particularly in paragraph nos. 7 and 8 in which identical view was taken by this Court holding that :

7.

The learned counsel for the petitioner then urged that the petitioner would suffer greater hardship in case he is evicted from the disputed shop. It is contended that he is carrying on business in the disputed shop in the name of Garhwal Watch Company. The size of the shop is 12 ft. x 12 ft. and rear portion of it is 8 ft. x 9 ft. It has been suggested that the petitioner is prepared to vacate front portion and he may be permitted to retain rear portion of 8 ft. x 9 ft. The learned Counsel for the contesting respondent submitted that the accommodation of 12 ft. x 12 ft. and rear portion of 8 ft. x 9 ft. will itself be not sufficient for landlord and his two sons who have also come in legal possession.

8.

Considering the facts and circumstances of the case, I do not find that it will be justifiable to release only a portion of disputed shop as suggested by the petitioner. It may further be noted that the Appellate Authority has found that the petitioner has shop in Lower Bazar in same city after purchasing it in the name of his wife. The contention of the petitioner is that he has strained relation with his first wife. In the proceeding under section 145 Cr.P.C. the petitioner field written statement alleging that he was owner but it was purchased in the name of his first wife. Moreover, the release application was filed in the year 1983 and the petitioner could have found other alternative accommodation. I do not find any merit in this writ petition and it is accordingly dismissed"

It is emphasised by the counsel for the respondent landlord that four shops said to have been constructed by the respondent Vishwas Kumar had been infact constructed by his brother Vikas Kumar. Rent of these shops is also realised by Vikas Kumar and that the area of these four shops is less than half of the area of the shops in dispute. He submits that the findings of the court below quoted above shows that the petitioner/tenant has not denied the fact that four shops were constructed by Vikas Kumar, brother of the landlord and all that is said is that the property is joint.

After hearing counsel for the parties and from perusal of record, it is apparent that not only the landlord but the tenant also has constructed his own shops which he has sold during the pendency of the appeal. It is also apparent that the tenant/petitioner has closed down the business of Menthol Processing Agency and has also shifted her business in market, Mandi Samiti, Moradabad. It also appears that not only the petitioner Vishwas Kumar but also also his brother Vikas Kumar had field affidavit before the court that four shops said to be that of the respondent/landlord are not his, rather are of his brother and in this regard the court below has also recorded a categorical finding of fact in favour of landlord.

On the other hand the tenant has also acquired vacant shops during the pendency of appeal and has sold them. Therefore he cannot raise any objection to the release of the shop in favour of the landlord. The offer of the petitioner/tenant having been rejected by the landlord on the ground that it does not fulfil his need is of vital importance particularly in view of the fact that the petitioner/tenant has shifted his business at Mandi Samiti, Moradabad which he was carrying on in the property in dispute. Having acquired the shops and lateron being sold them during the pendency of the appeal goes to show that the tenant has no need of the shops in dispute which he is holding over due to ulterior motive. Had he any such need, he would not have sold the vacant shops acquired by him during the pendency of appeal. The act of the petitioner/tenant shows malafide and bad intention in the facts and circumstances of the case. This is apparent from his conduct of keeping the shops/godowns of the landlord in his possession for almost three years since release application was filed. Though he had already shifted his business which he was carrying in the shop situated at Mandi Samiti and by sale of vacant shops acquired by him during the pendency of appeal.

The point canvassed before the court by the counsel for the petitioner is that since the court below has not considered part release of the shop in dispute for the reason that he cannot raise this point in view of the law laid down in Qamar Khan (supra) has no force. It is settled law that every member of the landlord family has a right to establish its own business even otherwise, no effort appears to have been made by the petitioner to search out alternative accommodation rather he sold the shops acquired by him in vacant state, during the pendency of the appeal.

For all the reasons stated above the writ petition is dismissed. The court below is also granted time to vacate the premises. The petitioner/tenants are directed to remove the goods from the shop in dispute and to keep the same in the newly shifted shop at Mandi Samiti, within 15 days.