Udhav Prasad vs Addl. District Judge and Others

Anil Kumar, J.—By means of present writ petition the petitioner has challenged the order dated 21.11.2009, passed by learned Additional District Judge, Court, No. 4, Lakhimpur Khiri thereby dismissing the petitioner''s rent appeal and also the order dated 13.10.2004, passed by the Prescribed Authority/A.C.J.M., Court No. 1, Lakhimpur Khiri by which the application u/s 21(1)(a) of the landlord/ respondent was allowed.

The facts in brief as submitted by the learned Counsel for the petitioner Sri ''Rohit Tripathi are that an application u/s 21(1)(a) of Uttar Pradesh Urban Buildings (Regulation of Letting Rent and Eviction) Act, 1972, hereinafter referred as Act 13 of 1972 was moved by the respondents on 7.4.2000, inter alia stating therein that the shop No. 6 which is situated at Station Road, district Lakhimpur Khiri and bounded as under:

East -- Shop No. 7 of Sri Dinesh Kumar.

West -- Shop No. 5 under the tenancy of the petitioner.

North -- Resident of landlord.

South -- Road/Station road.

In the release application it was stated that the shop Nos. 5 and 6 were given/let out by the father of the respondent Nos. 3 to 8 (late Sri Parmatma Swaroop Srivastava) to the petitioner at the monthly rent of Rs. 500 each now the rent of the said shop are Rs. 600 per month for each shop. However, the tenant had not given the rent w.e.f. September, 1999 after the death of their father the respondent Nos. 3 to 8 need the shop No. 6 in order to carry out their livelihood as such keeping in view the dire and bona fide need of the family release application was moved in respect to shop No. 6 for the purposes of starting the electric business by Km. Karuna Srivastava on the basis of said facts a Case No. 4/2000 was registered before the respondent No. 2, i.e., Prescribed Authority/A.C.J.M., Court No. 1, Lakhimpur Khiri.

In the said case the present petitioner, who was respondent had filed his written statement, wherein the relation between the landlord and tenant was not denied, however, it was submitted that the father of the respondent Nos. 3 to 9 had let out two shops No. 5 and 6 on rent to him. The petitioner from the said rented shop is running business of battery repair and recharge and looking into the nature of the said business the petitioner required to mutually separated shop out of which one is required for storage and repair of battery as the said shop cannot be used for human occupation because of the toxic gases and chemicals emitted by batteries, therefore, other shop is required for miscellaneous works. Accordingly, the petitioner needs two shops for doing his business, in the written statement it was further mentioned that the landlord have seven shops in the same vicinity out of which one shop (shop No. 3) was vacant for last four years but now the same was let out to some other tenant, as such the need of the landlord was neither genuine nor bona fide in comparison to need of the tenant.

After the exchange of the pleadings and other documentary evidence the prescribed authority in order to adjudicate and decide the dispute, which was pending before it had framed the following four issues:

Kya prasngat dukan No. 6 ki prathini sankhya-3 ke vyavsai ke liye sadbhavi awashyakta hai?

Dukan khali karaye Jane avam na khali karaye jane ki sthiti me pachhgan ki parasper kiski kathinai adhik hai?

Kya prathigan ke pas prathini sankhya-3 ke vyavsai ke liye koi anya dukan uplabdh hai?

Kya vivadit dukan No. 6 prathigan ke paksh me nirmukt kia jane yougya hai?

Thereafter, the prescribed authority on the basis of the pleadings and material documentary as well as oral evidence available before him, specially taking into consideration the statement of P.W. 1 Km. Karuna Srivastava, P.W. 3 Hamidulla and P.W. 4 Harish Kumar had held that as the landlords have got no other shop vacant in their possession in order to start business in question for the purpose of which the release application was moved so the needs of landlord is bona fide and more genuine in comparison to the need of the tenant and accordingly allowed the release application by order dated 13.10.2004 with a direction that the tenant shall give the vacant possession of the shop No. 6 to the landlord within six months from the date of passing of the said order and the tenant is entitled to get a sum of Rs. 10,000 towards compensation.

Aggrieved by the order dated 13.10.2004 the tenant filed an appeal before the respondent No. 1, i.e., Additional District Judge, Court No. 4, Lakhimpur Khiri (Rent Appeal No. 4 of 2004, Udhav Prasad v. Harish Kumar and Ors.) the appellate authority after taking into consideration the facts and circumstances of the case and placing reliance on the various authorities as stated by the parties before it had come to the conclusion that the need of the landlord for getting the shop No. 6 released for the purposes of starting the business for Km. Karuna Srivastava is genuine and bona fide and accordingly dismissed the appeal by order dated 21.11.2009 hence the present writ petition.

Learned Counsel for the petitioner while challenging the impugned orders has submitted that the prescribed authority while allowing the release application and the appellate court while dismissing appeal have arrived at a totally perverse finding with respect to the landlord''s bona fide need for the shop in question. As no evidence whatsoever had been lead by the landlord to establish their bona fide need, if the same was genuine, they would have certainly not permitted one of the shops remain vacant for four years just prior to filing of the application u/s 21(1)(a) of the Act.

It was further submitted that while deciding the issue of bona fide need, the lower courts have grossly overlooked the judgment of the Hon''ble Supreme Court in M.M. Quasim Vs. Manohar Lal Sharma and others, wherein the Hon''ble Supreme Court has deprecated the tendency of the landlords in being in constant endeavour to let out their premises at a premium ignoring the genuine need and hardship of the tenant. The Hon''ble Supreme Court has further held that the landlord does not have the unfettered right to get premises of his choice vacated. Moreover the said issue has been decided by the two Courts simply on the basis of pleadings of one side. The issue of bona fide need was considered, and decided, the courts below had the responsibility to decide the question of comparative hardship between the parties. While deciding the said issue, both the courts have grossly erred in ignoring the petitioner''s case because the petitioner has been carrying out the business of battery repair from two shops, which are genuinely required considering the nature of the business. The courts below, even while noting the submissions of the petitioner, have not recorded their finding while deciding the issue of comparative hardship in favour of the landlord so the impugned order under challenge are liable to be set aside and the present writ petition be allowed.

I have heard learned Counsel for the petitioner and perused the record.

In the present case, it is not disputed between the parties that respondent Nos. 3 and 8 are the owner/landlords of the shop No. 6 in question, which is under the tenancy of the petitioner/tenant and the release application had been moved for establishing electric business in shop No. 6, which is to be run and operated by Km. Karuna Srivastava keeping in view the dire and bona fide need of the family, which had arisen after the death of their father. The said release application was allowed by the prescribed authority by order dated 13.10.2004 and the appeal filed against the said order was also dismissed by the appellate authority by order dated 21.11.2009 holding therein that the need of the landlord for the release of the shop No. 6 is bona fide and genuine in comparison to the tenant.

I have gone through the judgments passed by the court below and given a careful consideration to the arguments advanced by the learned Counsel for the petitioner.

In the instant case, the courts below had given a concurrent finding of fact that the bona fide need of landlord is more genuine in comparison to the need of tenant.

The Apex Court in the case of Ranjeet Singh Vs. Ravi Prakash, has held that jurisdiction conferred under Article 226 of the Constitution of India is not an appellate jurisdiction and if the view taken by the court below is reasonable, the High Court should not interfere merely on the ground that another view is also plausible.

This Court in the case of Mohd. Gayas Vs. Prescribed Authority/Civil Judge (Sr. Div) and Another, had held that the findings on the ''bona fide need'' and ''comparative hardship'' are all findings of fact and it cannot be interfered in exercise of jurisdiction under Article 226 of the Constitution of India.

Thus, I am of the considered view that this Court in exercise of jurisdiction under Article 226 of the Constitution of India cannot enter into realm of reappraisal of evidence.

So far as the arguments advanced by the learned Counsel for the petitioner that the question of hardship of the tenant was not considered by the court below. I have gone through the judgment and I find that the courts below have very well assessed the evidence and tried to balance the comparative hardship and on the basis of the same had given the finding of fact that the need of the landlord is more genuine pressing in corhparison to the tenant.

Further the arguments advanced by the learned Counsel for the petitioner that the shop No. 4 was lying vacant with the landlord has also got no force as in this regard the court below after considering the material evidence on record had held that from the said shop No. 4 Sri Ajai Kumar is doing his own business of cycle repairing whereas in the present case the controversy relates is in respect to shop No. 6, which is required for doing the electric business by landlord.

In the case of Gaya Prasad Rastogi v. VIIIth Additional District Judge, Kanpur 1990 (2) ARC 313 : 1990 (2) AWC 1330, this Court has held that while recording on the question of ''bona fide need'' the court below has to assess on the basis of evidence that whether the intention of the landlord is mala fide or not? If the court below are of the view that there is no malice while instituting the release application and requirement pleaded by the landlord appears to be satisfactory and substantiated, it is sufficient to come to a conclusion that the need is bona fide. Similar view was also expressed in the case of Jagdish Singh v. VIIIth Additional District Judge, Kanpur 1986 (1) ARC 361.

Besides the above reasons no attempt has been made by the tenant to get alternative accommodation during these years. In the case of Badrinarayan Chunilal Bhutada Vs. Govindram Ramgopal Mundada, Hon''ble the Supreme Court has held that after filing of release application it is utmost essential for the tenant to make efforts either to purchase or take on rent other accommodation otherwise question of hardship may be decided against tenant. The said view was further reiterated in number of decisions, namely Kaushal Kumar Gupta v. Bishun Prasad and Ors. 2006 (1) ARC 73; Kulwant Singh (Sardar) v. VIth A.D.J., Saharanpur and Ors. 2007 (1) ARC; Om Prakash Gupta v. District Judge, Gorakhpur and Ors. 2009 (3) ARC 229 and Ashis Kumar and Anr. v. Prescribed Authority and Anr. 2009 (3) ARC 269.

In view of the aforesaid observations and conclusions, I do not find any valid ground to interfere in the orders passed by the courts below.

Accordingly, the present writ petition filed by the petitioner lacks merit and is dismissed.

No order as to cost.