Smt. Shanti Devi vs Mohammad Ikram

Shishir Kumar, J.—Heard learned Counsel for petitioner and learned Counsel for respondents.

This writ petition has been filed by landlord against an order by which appeal filed by respondent was allowed by judgment and order dated 16th July, 2005.

It appears that petitioner being landlord filed an application u/s 21(1)(a) of the Act No. 13 of 1972 for release of shop in question which was in possession of respondent-tenant, who is doing business of selling shoes and chappals. Prescribed Authority has found that need of landlord is genuine and bonafide for the purposes of establishing her son and was pleased to allow the application vide its judgment and order dated 16.7.2004. Tenant-respondent filed an appeal. Appeal was allowed vide its judgment and order dated 16th July, 2005 holding therein that landlord is having two other shops in possession, therefore, she can establish her business there. Petitioner aggrieved by aforesaid order has filed the present writ petition.

It has been argued by learned Counsel for petitioner that it is the choice of petitioner-landlord to get vacation of the shops which are in possession of tenants. He has placed reliance upon a judgment reported in 2009(2) ARC 24 Chhedi Lal v. Kedar Nath. Placing reliance upon aforesaid judgment, learned Counsel for petitioner submits that it is the choice of landlord to choose a particular house or shop to get it vacated on the basis of application filed. The tenant cannot dictate that landlord can manage his business or residential accommodation elsewhere and cannot dictate the terms. Further reliance has been placed upon a judgment reported in 2009(2) ARC 205 Kanahaiya Lal Agarwal v. District Judge, Ballia and Ors. and has placed reliance upon para 20 and 21 of the said judgment. The same is being quoted below:

Findings on the bonafide need and comparative hardship have been recorded in favour of the landlord by both the Courts below. I do not find any error in the said findings. There was no assertion on behalf of tenant that the son of the landlord, for whose need release application was filed, was having any independent business. Mere fact that son was assisting his father in business is no ground to reject the release application vide Akhileshwar Kumar and Others Vs. Mustaqim and Others, Akhileshwar Kumar v. Mustaqim; Sushila Vs. IInd Addl. District Judge, Banda and Others, and 2007 AIR SCW 3250 : 2007 (1) ARC 577 Ram Kumar Barnwal v. Ram Lakhan.

Accordingly, writ petition is allowed. Judgment and order of appellate Court is set aside. Judgment and order passed by the trial Court/prescribed authority allowing the release application is restored.

Further reliance has been placed upon a judgment reported in 2004 (55) ALR 69 Sri Niwas and Anr. v. Vth Additional District Judge, Moradabad and Ors. and has placed reliance upon para 3 of the judgment. The same is being quoted below:

The original tenant Sri Dhillo Ram died during the pendency of the appeal and was substituted by his widow Smt. Govindi Bai and sons Rijhu Mal and Ganga Das. In appeal Mool Chand grandson of original tenant Dhillo Ram stated that he had separated from his father and was carrying on business in the shop in dispute. The Appellate Court held that after the death of the tenant his widow could carry on business in the shop through her grandson Mool Chand. The release application was filed by the landlord for establishing his sixth son Ramendra Kumar. Appellate Court held that other sons of the landlord were carrying on business and Ramendra Kumar could also share in any one of the businesses. This view of the Appellate Court was quite erroneous in law. Every adult members of the family of landlord has got right to start independent business. Mere fact that some of the sons of landlord are established in business does not warrant dismissal of the release application filed for establishing other son of the landlord in business. The two sons of the original tenant i.e. respondents No. 4 and 5 did not set up the case that they would be requiring the shop in dispute for doing any business. Regarding comparative hardship nothing was brought on record by the tenant to show that he made any efforts to search alternative accommodation after filing of the release application.

Further reliance has been placed upon a judgment reported in 2004(40) ALR 79 Smt. Asha Sahu and Ors. v. XIIth Additional District Judge, Allahabad and Anr. and has placed reliance upon para 13 and 17 of the judgment. The same are being quoted below:

In the facts and circumstances of case, finding recorded by the appellate authority, reversing finding of the Prescribed Authority in favour of the petitioners on the question of comparative hardship also cannot be sustained. It is a matter of common knowledge that business of electronic goods and its repair cannot be carried on raod-side patri. Considerations for carrying cycle repairing business are entirely different. For example it may be advantageous to do cycle repairing on raod-side patri in as much as it will be visible and attact the passers-by needing this service. It will certainly not conducive as far as business of selling and/ or repairing electronic gadgets is concerned.

In view of above, the impugned judgment and order dated 2.8.97 is quashed. the judgment and order dated 21.4.93 passed by the Prescribed Authority in PA case No. 15 of 1991 (Annexure 5 to the Writ petition) is hereby affirmed. The writ petition is allowed. There will be no order as to costs.

Placing reliance upon aforesaid judgment, learned Counsel for petitioner submits that as landlord required the shop to settle his unemployed son, therefore, need of landlord is genuine and bonafide and prescribed authority taking into consideration all these facts has recorded a finding that need of petitioner is genuine and bonafide to establish his son. The Appellate Court has committed an illegality apparent on the face of record by reversing the finding without any cogent reason.

On the other hand, learned Counsel appearing for respondents submits that a finding of fact has been recorded by Appellate Court that petitioner is having two vacant shops in her possession and she can establish her son in the said shop. Further a finding has been recorded that she is involved in hotel business and son of landlord is assisting her. Further finding has been recorded that from 1964, tenant-respondent is doing business and has earned goodwill and from the facts and circumstances as the availability of the shop to the landlord, it will not be appropriate to get the shop vacated.

I have considered the submissions made on behalf of parties and have perused the record.

The prescribed authority on the ground that need of landlord is more genuine and bonafide has passed an order of releasing of accommodation in favour of petitioner. On an appeal filed by tenant-respondent it has been considered that two shops are in a vacant stage, are in possession of petitioner is available for the purposes of establishing her son in the business. In such circumstances, court below has considered that need of tenant is more genuine and bonafide and, in case, shop in question has got vacated or released, tenant will suffer more hardship than petitioner in the facts and circumstances that there are availability of two shops in a vacant stage in possession of petitioner. The cases cited by learned Counsel for petitioner is not applicable in the present case because it is well settled that tenant cannot dictate the terms to landlord and to say that landlord should make an application for releasing of a particular shop. It is always the choice of landlord to get the shop or accommodation released in his favour but in the present case, a finding has been recorded by Appellate Authority that two shops are available for the purposes of establishing the son of petitioner. In that circumstances, it has been held that need of tenant is more genuine. In my opinion, finding recorded by the court below is a finding of fact, needs no interference by this Court.

The writ petition is devoid of merits and is hereby dismissed, however, without imposing any cost.