Pradeep Kumar vs Mohd.Saiful Ezaz Alam Khan and Another

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

The tenant petitioner is challenging the validity and correctness of order dated 2.1.2008 passed by the Prescribed Authority, Budaun in R.C.C. no. 1 of 2001 as well as order dated 26.10.2010 passed by the appellate authority in Rent Appeal No. 12 of 2008.

The petitioner has prayed for quashing of the aforesaid orders on the ground that in view of the provisions of section 34 and 38 of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act no. 13 of 1972), it was a right of the petitioner to get any relevant evidence which he proposed to adduce, admitted and even after admitting the additional evidence, the appellate court did not advert to the same.

It is stated that additional evidence of the petitioner was admitted in evidence by order dated 12.3.2010 but the same has not been considered by the appellate court and if the evidence would have been considered, then it would have been amply proved that there were four new shops available to the respondent landlord in which they could easily carry out their business. However, in this case both the courts below have tried to find out as to whether the tenant petitioner had bonafide need or not.

Next contention of the counsel for petitioner is that two shops belonging to family members of the petitioner are occupied by petitioner''s brother and mother. According to him, one of the shops was in occupation of his brother Darshan Kumar and another shop was in occupation of his other brothers Praveen Kumar and Naresh Kumar and hence the courts below have erred in taking into consideration those two shops occupied by his brothers where the petitioner could shift his business.

It is also submitted that had a commission been issued, then it would have been amply proved that there were several accommodations available to the landlord in which he could have easily expanded his business and as hardships of the petitioner have not been considered in accordance with rule 16(2) of the Rules framed under Act no. 13 of 1972, the judgment by the courts below are erroneous as from the record it has been proved that the petitioner had made several efforts to get an alternate accommodation.

It is lastly submitted that accommodations of the landlord which were in name of his mother Smt. Nighat Fatima and in name of landlord''s sister Waslim Nighat, was in fact benami property and the same ought to have been deemed in ownership of the landlord respondent in which they could have easily shifted their business, and hence in this view of the matter, the orders impugned are liable to be quashed.

Per contra, counsel for the landlord respondent submits that the petitioner is tenant of the shop belonging to the landlord situated in Mohalla Bhadwarganj, Station Road, Ujhani, district Budaun in which he is running his business under the name and style "Dhawan Book Depot". It is stated that as the landlord bonafide required the shop, he moved an application under section 21(1) (a) of U.P. Act No. 13 of 1972 for ejecting the petitioner from the shop in dispute; that Prescribed Authority allowed the release application filed by the landlord vide judgment and order dated 2.1.2008; that tenant petitioner filed Rent Appeal no. 12 of 2008 which was dismissed by the appellate court by judgment and order dated 26.10.2010 holding that bonafide need and comparative hardships was in favour of the landlord.

The main ground of tenant petitioner for assailing the order impugned, is that landlord has constructed four shops which are available to him where he could expand and shift his business whereas the shop under tenancy of the petitioner is the only source of business for him and as such the courts below have erred in holding question of bonafide need and comparative hardship in favour of the landlord.

The other ground for assailing the order appears to be that even after admitting additional evidence in respect of four shops said to have been constructed Benami by family members of the landlord, the courts below have not considered this aspect in the judgment impugned which has caused grave injustice to the petitioner tenant.

As regards the question of bonafide need is concerned, the Prescribed Authority in the impugned judgment has given a categorical finding of fact that petitioner was running business in the shop in dispute under the name "Dhawan Book Depot" and that it is not only the petitioner but his brothers is also working together in the shop in dispute as well as in other two shops. The Prescribed Authority has noted that there is no denial of this fact by the petitioner and it came to the conclusion that it is proved from the record that all brothers and mother are running the shop in dispute as well as other two shops jointly in the same name i.e. Dhawan Book Depot. This conclusion has been reached by considering the fact that petitioner had taken the shop on rent in the year 1980 while he was in service in Cane Department and it is only 6 7 years back that he started sitting in the shop in dispute and that prior to it his brothers were running the shop on his behalf. It also appears that SCC case no. 20 of 1994 was contested by the parties and both the shops were run by the petitioner and his brother under the name and style "Dhawan Book Depo" as it is not possible for two persons to run a shop independently each one of them under same name i.e. Dhawan Book Depo. The Prescribed Authority has also found that both the shops were under tenancy of the petitioner and he had sublet one of the shops to his brother and as such need set up by the landlord was bonafide whereas need and comparative hardships of the tenant petitioner is malafide. In fact the shop in dispute is two storied which also falsifies case of the petitioner tenant that he has taken other shop on rent due to paucity of space.

As regards four shops said to have been constructed by the landlord is concerned, the courts below have found that the construction is not of shops for commercial purposes but is of residential purposes by married sister of the landlord for her family from her own funds which is incomplete till date as such cannot be used for commercial purpose of shops.

The appellate court has considered the argument on behalf of the parties in this regard and has recorded a finding that family members of the petitioner have also purchased two shops and therefore he cannot raise question of bonafide need of the landlord being barred by the provisions of section 21 of the Act. Finding recorded by the court below in this regard is as under:

The court below after considering question of alternative shop available and bonafide need and comparative hardship, has accepted the case of the landlord regarding bonafide need of the shop in dispute and held thus:

Thus, it appears from the impugned orders that both the courts below have considered the question raised by the petitioner regarding four shops said to have been constructed by family members of the landlord and if the tenant claims that the property is benami, even then conclusions arrived at by the court below, cannot be sidelined and he has to prove his case as specific finding has been given by the court below that construction is for residential purposes and not commercial. Whereas the courts below have also come to the conclusion that family members of the petitioner have in fact purchased two shops in which his brothers are running business under the name and style "Dhawan Book Depot" which is the same business and name under which shop in dispute is being run by the petitioner.

Considering the fact that petitioner had taken shop in dispute while he was in service and the same was being run by his brothers and there being no cogent evidence on record to indicate that petitioner''s brothers were doing their separate business prior to taking the shop in dispute on rent and this fact having also not been denied by the petitioner that the constructions said to have been made by family members of the landlord have in fact been made by widow sister of the landlord for residential purposes, the court below has disbelieved the case of the petitioner that his mother has purchased two shops from her own funds by selling her ornaments. In fact from the record it appears that petitioner had modified his stand at a later stage which has given cause to disbelieve his case by the court below.

Since the petitioner has alternative accommodation having purchased two shops (said to have been purchased by his mother) and concurrent findings recorded by the courts below that his brothers are working with him, the petitioner has failed to make out a case for interference by this Court in exercise of extra ordinary powers under Art. 226 of the Constitution. In the facts and circumstances, the orders impugned are upheld.

For all the reasons stated above, the writ petition fails and is accordingly dismissed. The petitioner shall hand over peaceful vacant possession of the shop in dispute to respondent landlord within a period of fifteen days from today. No order as to costs.