Shyam Mohan Singh vs Vishram Rathore and Another

Dilip Gupta, J.—The tenant has filed this petition for quashing the order dated 17th July, 2006 passed by the Prescribed Authority by which the application filed by the landlord u/s 21(1)(a) of the U.P. Urban Buildings (Regulation of Letting, Rent & Eviction) Act, 1972 (hereinafter referred to as the ''Act'') for release of the shop was allowed. The petitioner has also sought the quashing of the judgment and order dated 24th November, 2011 by which the appeal filed by the petitioner for setting aside the aforesaid order of the Prescribed Authority was dismissed.

The landlords-Vishram Rathore and Mukhram Rathore had filed the application u/s 21(1)(a) of the Act with the allegations that they were the owners and landlords of Premises No. 80/4, Block No. 8, Govind Nagar, Kanpur which they had purchased by the registered sale deed dated 5th February, 1999; that the opposite party was a tenant of Shop No. 3 on the ground floor; that initially respondent No. 2-Mukhram Rathore was a tenant of Shop No. 4 in Premises No. 80/4, Block No. 8, Govind Nagar, Kanpur and was carrying the business of sale and repair of electronics goods from the said shop; that after purchase of the premises in February, 1999, the landlords had filed Case No. 45 of 1999 against Ram Swaroop, who was the tenant of Shop No. 5 in the building for release of the shop and pursuant to the order passed by the Prescribed Authority, Ram Swaroop vacated the shop; that respondent No. 2-Mukhram Rathore extended his business of sale and repair of electronics goods to shop No. 5; that respondent No. 1-Vishram Rathore who was in government service retired on 30th September, 2000; that the eldest son of Vishram Rathore Sanjay Kumar is assisting respondent No. 2-Mukhram Rathore in his business from Shop Nos. 4 and 5; that there is not much income and so Vishram Rathore and his remaining two sons Rajesh Kumar and Satish Kumar desire to set up independent business to augment their income so as to be able to meet the needs of the family; that Shop No. 3, therefore, is bona fide required for satisfying the need of Vishram Rathore and his son Rajesh Kumar who would be establishing General Store in the said shop and that the need to establish the third son Satish Kumar will still not be satisfied.

The petitioner filed a reply to the aforesaid application filed by the landlord inter alia stating that the tenant had a family consisting of 13 members who were fully dependent for their livelihood from the earnings from Shop No. 3 and that the tenant did not have another shop for business; that the need of the landlord was not bona fide and in any case, Shop No. 6 in Vidhyarthi Colony, Bangali Market, Govind Nagar, Kanpur was available with them for doing business and the need of tenant the tenant was far greater and pressing than that of the landlords.

The Prescribed Authority allowed the application by the order dated 17th July, 2006 against which the tenant filed an appeal which was dismissed by the judgment and order dated 21st November, 2011.

Sri M.K. Gupta, learned counsel appearing for the petitioner submitted that the landlords-respondents have three shops in their possession namely, Shop Nos. 4 and 5 situated in the ground floor in House No. 80/4, Block No. 8, Govind Nagar, Kanpur and Shop No. 6 in Bangali Market, which is kept vacant and, therefore, the need of the landlords can be satisfied from the shop which had been kept vacant. In this connection, he has placed reliance upon the report dated 28th September, 2004 submitted by Vakil Commissioner that only waste material has been kept in the shop situated in Bangali Market. With respect to comparative hardship, it is his submission that the respondent No. 2-Mukhram Rathore is issueless and his brother Vishram Rathore is receiving pension after retirement from Government Service and his eldest son Sanjay Kumar is already doing business with his uncle in Shop Nos. 4 and 5 situated on the ground floor of House No. 80/4, Block No. 8, Govind Nagar, Kanpur but the tenant does not have any other shop for doing business.

Sri H.N. Singh, learned counsel appearing for the respondents has, however, submitted that the Prescribed Authority as well as the Appellate Authority, on a consideration of the materials available on record, have held that the need of landlord Vishram Rathore and his second son Rajesh Kumar for doing business from the tenanted shop was bona fide and that greater hardship was likely to be faced by the landlords. It is his submission that the findings recorded by the Prescribed Authority and the Appellate Authority did not call for any interference by the Court under Article 226 of the Constitution.

I have considered the submissions advanced by learned counsel for the parties.

The applicants, Vishram Rathore and Mukhram Rathore are real brothers. While Vishram Rathore is married and has a family consisting of his wife, one daughter and three sons Sanjay Kumar, Rajesh Kumar and Satish Kumar, Mukhram Rathore is issueless. Sanjay Kumar, the eldest son of Vishram Rathore is married and has two sons. House No. 80/4, Block No. 8, Govind Nagar, Kanpur in which Shop Nos. 3, 4 and 5 are situated is in the joint ownership of the applicants and they are the landlords. Mukhram Rathore is doing business in Shop Nos. 4 and 5 and Sanjay Kumar, the eldest son of Vishram Rathore, is assisting him in his business. In shop No. 4 repair work of T.V. is carried out and in Shop No. 5, electronic goods are sold. Shop No. 3, which is in the tenancy of the petitioner, was required by Vishram Rathore and his second son Rajesh Kumar for opening a General Store to maintain themselves. It has also been asserted by the landlords that in fact one more shop was required for establishing business for the third son Satish Kumar.

The tenant had come out with a case that one shop No.6 was available in Bangali Market from where Vishram Rathore and his son Rajesh Kumar could do their business. It is seen seen that Shop No. 6 in Bangali Market was purchased by Mukhram Rathore alone and the report submitted by the Vakil Commissioner mentions that some waste material is kept in this shop.

It is the contention of Sri M.K. Gupta, learned counsel for the petitioner that when the applicants Vishram Rathore and Mukhram Rathore are co-landlords, then the shop No. 6 in Bangali Market, of which Mukhram Rathore is the owner, can be utilized by Vishram Rathore and his second son Rajesh Kumar.

It is not possible to accept this contention of learned counsel for the petitioner. The need of Vishram Rathore and his son Rajesh Kumar for doing business has been accepted by both the Prescribed Authority and the Appellate Authority and it cannot be said that they do not require the shop for doing business. Shop No. 6 in Bangali Market is in the name of Mukhram Rathore. The need which has been set up in the release application is for Vishram Rathore and his second son Rajesh Kumar. The tenant cannot insist that Mukhram Rathore should make available Shop No. 6 in the Bangali Market to Vishram Rathore and his son Rajesh Kumar for doing their business.

The Prescribed Authority and Appellate Authority have also found as a fact that the landlords would suffer greater hardship then the tenant in case the shop was not released in favour of the landlords. In such circumstances, there is no good reason to interfere with the impugned orders and the writ petition deserves 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.

Learned counsel for the landlord has stated that the landlord has no objection to some reasonable time being granted.

The tenant is, accordingly, granted four months time upto 18th May, 2012 to handover the peaceful possession of the shop to the landlords 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 18th May, 2012.

That the tenant shall pay damages at the rate of Rs. 500/- 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 order enforced.

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