Rohit Dixit vs Gyanendra Kumar Jain and Others

Dilip Gupta, J.—The tenant has filed this petition for setting aside the judgment and order dated 15th December, 2011 by which the Appeal filed by the landlord u/s 22 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the ''Act'') for setting aside the order dated 18th August, 2008 passed by the Prescribed Authority rejecting the application filed by the landlord u/s 21(1)(a) of the Act for release of the tenanted shop has been allowed.

In the application filed by the landlord u/s 21(1)(a) of the Act, it was stated that the tenant was occupying one shop situate on the ground floor in premises no. 76/579, Coolie Bazar, Kanpur Nagar of which the applicant was the landlord. It was stated that the first, second and third floor of the premises in question were residential where the applicant''s family and brothers with their family were residing. The tenant was occupying a shop on the ground floor. The applicant was doing business of selling/purchasing of properties and his son was doing business of hardware on the road by putting a wooden Takhat and the second son had left studies and wanted to start his own business. It was, therefore, stated that the landlord bona fide required the shop in question for doing his own business as well as for establishing his two sons in business. It was also stated that the landlord was likely to suffer greater hardship than the tenant.

The tenant put in appearance on 8th February, 2006 but did not file any reply and the Prescribed Authority directed the matter to proceed ex-parte on 11th March, 2007. The Prescribed Authority framed three points for determination namely, whether relationship between the landlord and tenant existed; whether the landlord bona fide required the shop in dispute and whether the landlord was likely to suffer greater hardship than the tenant.

With respect to the first point, the Prescribed Authority held that the relationship between the landlord and tenant existed. However, with regard to the second point, the Prescribed Authority found that the landlord did not bona fide require the shop in dispute since he had not indicated the space available with him and nor had he filed any document in connection with his business or the business of his son Amit Jain. The third point was not considered necessary to be decided since it had been found that the landlord did not bona fide require the tenanted shop.

Feeling aggrieved, the landlord filed an Appeal against the aforesaid order which was allowed by the judgment and order dated 15th December, 2011. The Appellate Court has found as a fact that the finding recorded by the Prescribed Authority that the landlord had not indicated what space was already available with him is incorrect because the landlord had clearly come out with a case in the application filed u/s 21(1)(a) of the Act that there was no shop available with him for doing his business or for establishing his two sons in the business and nor the tenant had been able to point out any such shop. The Appellate Court has also found as a fact that the need of the landlord to do business from the shop in dispute and to establish his two sons in business is a bona fide need. The Appellate Court then considered the hardship factor and found as a fact that the landlord was likely to suffer greater hardship than the tenant. The order of the Prescribed Authority was, accordingly, set aside and the application filed by the landlord u/s 21(1)(a) of the Act was allowed.

Learned counsel for the petitioner has submitted that from the perusal of the application filed by the landlord, it is clear that there is some space available in the ground floor from where the landlord can do his business. It is also his contention that the inference drawn by the Appellate Court about the Challan having been issued by the Police authorities against Amit Jain for doing business from the footpath is not correct since the name of the father of Amit Jain was not correctly recorded.

It is not possible to accept the submission of the learned counsel for the petitioner. The landlord had come out with a specific case that there was no space for him to do his business or to establish his sons in business and in fact his son was doing a business from the footpath for which he had been challaned by the Police. The tenant did not produce any evidence to show that there was any shop available with the landlord on the ground floor of the building. Merely because the Police authorities wrongly recorded the name of the father of Amit Jain in the Challan will not necessarily mean that the Challan was not issued to Amit Jain particularly when the tenant has also not otherwise been able to show that the son was doing business from any other shop.

Such being the position, the findings recorded by the Appellate Court does not call for any interference by the Court under Article 226 of the Constitution.

The writ petition is, therefore, liable to be dismissed.

At this stage, learned counsel for the petitioner submitted that some time may be given to the tenant to vacate the premises in dispute.

The tenant is, accordingly, granted time upto 15th April, 2012 to handover the peaceful possession of the shop to the landlord subject to the tenant giving an undertaking within two weeks from today before the Prescribed Authority to the following effect :-

That the tenant shall handover peaceful possession of the shop to the landlord on or before the 15th April, 2012.

That the tenant shall pay damages at the rate of Rs. 750/- per month up to the date he hands-over the possession of the shop to the landlord.

That the tenant shall not induct any other person in the shop.

It is made clear that in the event the tenant fails to give the undertaking within the aforesaid period or fails to comply with any of the terms of the undertaking, it will be open to the landlord to get the decree executed.

The writ petition is, accordingly, dismissed with the aforesaid observations.