Prakash Chandra Gupta vs District Judge, Unnao and Others

O.P. Srivastava, J.—By means of this writ petition, petitioner has prayed for a writ in the nature of certiorari quashing the judgment and order dated 28.1.1999, passed by opposite party No.2 granting the prayer of opposite party No.3 for release of the shop in the tenancy of the petitioner and the judgment and order dated 6.9.2000, passed by opposite party No.1, dismissing the appeal there against.

Facts, relevant for disposal of the writ petition, in brief, may be stated as follows:

Opposite party No.3 is the owner of House No.28/29, situate in Mohalla Jagannath Ganj, Unnao City. The petitioner was let out a shop in the said house on monthly rent of Rs.70/. Opposite party No.3 made an application under Section 21 of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, (U.P. Act No. XIII of 1972), for release of the shop, on the ground that after retirement from Army, he wanted to set up his own business in the said shop. Said application was initially rejected and the appeal was also dismissed. However, High Court by an order passed in the writ petition filed by the landlord remanded the matter back to the trial Court to determine the need of the parties in accordance with law and dispose of the matter after providing opportunity to the parties to lead fresh evidence or to take additional pleas in the pleadings. After remand landlord moved an application and made certain amendments also.

The case of the tenant/petitioner was that the landlord was not in need of the shop and that the purpose for release was to let out the same to somebody else on higher rent.

Upon consideration of evidence produced, learned trial Court finding the need of landlord genuine and also comparative hardship in favour of the landlord, allowed the application for release. The appeal preferred before District Judge was also dismissed.

Learned counsel for the parties have been heard.

Contention of the learned counsel for the petitioner is that daughter of the landlord/opposite party No.3 will not fall within the definition of family, and, therefore, need in regard to her cannot be considered. He further submitted that landlord could meet out his requirement by constructing a shop on the upper floor and in order to show that this was possible, a commission was also prayed to be issued but learned trial Court did not pass any order on the said application. Learned counsel further submitted that mere desire is not sufficient for release of the shop. On the other hand, learned counsel for the landlord opposite party No.3 argued that landlord was in Army. After his retirement, he took job in soldier''s Board from where also he retired on 31.1.1984 and, therefore, he wanted to set up a business in the shop for which he needed the shop. He submitted that need was genuine and comparative hardship was also in his favour while the tenant during pendency of the case had purchased some property comprising of certain shops, some of which were vacant but instead of shifting to such shops, he let out said shops to others. As regards submission of the learned counsel for the petitioner regarding living of the daughter of landlord with him is concerned, it has been submitted that release has not been sought on the ground of need for the daughter but the fact has been simply stated that daughter is living with the landlord. Similarly regarding issue of commission, learned counsel for the landlordopposite party No.3 submitted that there was no need for the same, for the reason that landlord cannot be asked in the circumstances to get a shop constructed for carrying on his business.

I have considered respective contentions of the learned counsel for the parties and have gone through the record and the judgments cited on either side.

Learned counsel for the petitioner mainly relied upon judgment of Hon''ble Supreme Court in Atma S. Berar v. Mukhtiar Singh, (2003) 2 Supreme Court Cases 3, (paras 8, 9, 10 and 11), wherein Supreme Court has observed that need of the landlord must be genuine and not only a desire or wish to have shop for himself.

No doubt, settled principle of law is that landlord praying for release must establish that his need is genuine and also that comparative hardship is in his favour. So far as need of landlord in the instant case is concerned, landlord did not make prayer of release as he did not need the shop so long as he remained in Army Service or in the service of Soldier''s Board. He wanted to start some business in the shop himself after retirement and, therefore, it cannot be said, as held by the trial Court also, that there was no genuine need of the landlord. The Courts below have rightly rejected the submission on behalf of the tenant that landlord was not required to set up his business as he was getting sufficient pension to meet out his financial requirement. Learned courts below rightly observed that after retirement, it is not only money which is relevant but the person may want to keep him engaged also by opening a shop. In this view of the matter, when the landlord after his retirement wanted to set up his business in the shop to get himself engaged, his need cannot be said to be not genuine and only a desire.

The tenant admittedly during pendency of the case acquired property comprising of certain vacant shops also in the same locality, but instead of shifting to the said vacant shops, he continued to retain the shop in question, depriving the landlord to carry on business in his shop and also letting out his own shops in the same locality to other persons. Thus conduct of tenant leads to the conclusion that the tenant himself is not acting bonafidely.

Learned counsel for the landlord rightly placed the reliance on the decision of this Court in Gaya Prasad Sharma v. Om Prakash and others, 1996 (14) LCD 389 (para 6), wherein it has been held that while deciding the question of comparative hardship the efforts of the tenant to get an alternative accommodation have a strong bearing. In the instant case tenant purchased property having vacant shops during pendency of litigation but instead of shifting to those shops in the same locality he preferred to let them out to others.

Rule 16(2)(b) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972, framed under U.P. Act No. XIII of 1972, provides that while considering application for release for the purpose of any business greater justification for allowing the application will be where tenant has available with him, suitable accommodation to which he can shift his business without substantial loss. Since shops were purchased by the tenant and were situated in the same locality there would not have been substantial loss to him in shifting his business to his own shops. Learned counsel for the petitioner did not urge also during arguments that any substantial loss would have occurred in case tenant would have shifted his business to his own shop nearby.

Thus, none of the courts below committed manifest error in holding comparative hardship in favour of landlord.

So far as issue of commission is concerned, the same, as argued by the learned counsel for the tenant, was sought for finding out feasibility whether the landlord could satisfy his need by getting a shop constructed for himself on the upper floor with a stair case adjacent to the shop in question. Learned counsel for the landlord rightly placed reliance on the judgment of this Court in Sarla Ahuja v. United India Insurance Co. Ltd., AIR 1999 Supreme Court 100, wherein it has been observed that tenant has not to suggest terms to the landlord as to how he can adjust himself without possession of tenanted premises. Thus the said question is totally out of contest and in case need of the landlord is genuine and comparative hardship lies in his favour then tenant has not to suggest that landldord should get his need fulfilled by getting another accommodation constructed.

I do not find any ground calling for any interference in the writ petition.

Before parting with this case, I would like to observe that conduct of the petitioner, in keeping this litigation pending for eighteen years and thereby depriving the retired Army personnel from carrying on his business in his own shop, specially in the circumstances when the tenant himself got an opportunity to shift his business to his own vacant shops acquired by him during the pendency of the case in the same locality, was unreasonable. His act of letting out the said shops to others and requiring the landlord to meet out his need by getting a shop constructed on the upper storey was highly unjust. In the Circumstances, I am inclined to saddle the tenant/petitioner with costs.

The writ petition is dismissed. Petitioner is directed to pay rupees five thousand as costs to the landlord and vacate the shop and handover peaceful possession to landlord within a month from today.

(Petition dismissed)