Vijai Kumar and Others vs Ashok Kumar and Others

Mrs. Poonam Srivastava, J.—Heard learned counsel for the parties.

The instant writ petition is directed against the judgment and order dated 21.8.2003 passed by the Additional District Judge, Ambedkar Nagar, in Appeal No.49 of 2000 under Section 22 of U.P. Act No.13 of 1972 (hereinafter referred to as ''the Act'') rejecting the petitioner''s application under Section 21(1)(a) of the Act.

The petitioners are landlords of the disputed shops. Late Chhangu Lal predecessor in interest of the petitioners was original owner of the shops in question, which was let out to late Mewa Lal predecessor in interest (tenants) of the shop in question at the rate of Rs.50/ per month. Release application under Section 21(1)(a) of the Act was preferred before the Prescribed Authority for setting up his two sons in the independent business on 5.2.1981. The application was supported by an affidavit of the landlord himself. It was specifically stated that the shops in question were bonafidely required for his own use and the two sons, who have now become major, they are to be set up in some business and also he had no vacant shop in his possession and, therefore, the necessity arose to institute the proceedings for release.

The landlords stated in paragraph No.4 of the release application that the tenant/respondents are also constructing new building having a number of shops where they can shift their own business. This fact was not disputed and subsequently the Prescribed Authority allowed the release application after being satisfied that the tenants have constructed their own shop. Reliance was placed on the report submitted by the Advocate Commissioner along with map. Besides, it was also found that the sons of original tenant Mewa Lal had divided the shops in question into two parts and sub let to two different persons namely Ashok Kumar, opposite party No.1 and Narendra Kumar, opposite party No.3 and Triloki, opposite party No.10. This sub letting was behind the back of the landlords and in absence of any allotment order in violation of specific provision of the Act.

This fact of sub letting was brought on record by amending the release application. The Prescribed authority initially rejected the release application vide order dated 28.9.1984, which was set aside in appeal vide order dated 13.1.1993. The case was remanded for afresh decision and subsequently the Prescribed Authority allowed the release application directing the tenants to hand over vacant possession within thirty days. The Prescribed Authority recorded specific findings on the basis of evidence and assertions made by the landlords that sons of Mewa Lal, original tenant, had made alteration and divded the shops in two parts and sub let to the opposite party Nos.5 to 7 without there being any allotment order, intimation of vacancy or consent of the landlords. It was further held that two sons of Chhangu Lal are without any job and they are to be engaged in some business. Witnesses have also filed their affidavits in support of contention of the landlords. While allowing the release application, the Prescribed Authority had specifically placed reliance on the statement of Ashok Kumar, respondent No.1, where he has stated that the landlords have no vacant shop in their possession. The other shops of which they are owners, have already been let out much before the intiation of the release proceedings whereas the contesting opposite parties have got vacant possession of their own shops; which they constructed during continuation of the case. The tenant Ashok Kumar preferred an appeal under Section 22 of the Act, which was allowed vide judgment dated 21.8.2003, which is impugned in the instant writ petition.

Submission on behalf of the petitioner is that judgment of the appellate Court is vitiated in law for the reason that the appellate Court did not reverse findings of the Prescribed Authority. The trial Court specifically recorded findings that sons of Mewa Lal, original tenant constructed their own shop and now disputed shop has been vacated and sub let to the opposite parties in violation of Section 25 of the Act. In fact the contesting respondents are unauthorized occupants and they have no right to oppose the release application. Besides, the landlord has no vacant shop and two sons for whom the shop is required, are sitting idle and, therefore, they bonafidely require the disputed shop to set up two sons in business.

Reliance has been placed on decisions of Heera Lal Agarwal and another v. IInd Additional District Judge, Farrukhabad and Others, 2000(2) ARC 703, Moeed Khan @ Guddu v. IIIrd Additional District Judge, Bareilly and Others, 2001 (1) ARC 314, Murari Lal Sah v. 4th Additional District Judge, Nainital and Others, 2005 (23) LCD 366, Uttaranchal High Court.

The Prescribed Authority has also specifically held that balance of convenience and comparative hardship tilt in favour of the landlords. In fact the respondent No.1 is nothing but house grabber and they do not have any locus standi to oppose the release application, it is also submitted that though the respondents are not entitled for consideration of their comparative hardship even then taking into account the entire facts and circumstances, the Prescribed Authority came to a conclusion that sons of landlord are without any earning and, therefore, on the basis of settled principles of law by the Apex Court in the case of Badrinarayan Chunilal Bhutada v. Govindram Ramgopal Mundada, AIR 2003 SC 2713, the landlords cannot be denied their right to settle their sons in business and, therefore, the release application was bound to be allowed.

In another decision of this Court; Kaushal Kumar Gupta v. Bishun Prasad and Others, 2006(1) ARC 73, it has been held that Courts have statutory obligation to weigh and assess the comparative hardship properly. It was burden of the tenants to prove that they will suffer in the event accommodation, which admittedly belongs to the landlord, is given back to them for their personal need in the event it is vacated and the tenants are required to shift the business, they would suffer greater hardship.

In the instant case, it is consistent plea of the landlords that the shop has been sub let and the tenants have vacated and shifted their own business, therefore, the appellate Court committed a grave error in refusing to release shop in favour of the landlords while reversing the findings of the Prescribed Authority. The Prescribed Authority recorded a clear and categorical finding on the question of bonafide need and comparative hardship in favour of the petitioners, which has not been reversed specifically in accordance with law by the appellate Court. In the circumstances, judgment of the appellate Court impugned in the instant writ petition stands vitiated in law.

Counsel for the respondents has tried to contradict arguments advanced on behalf of the petitioners and has placed reliance on decisions of this Court; Pramod Kumar Verma v. 6th Additional District Judge, Bijnor and Others, 2000(18) LCD 417, in support of the argument that concept of bonafide need means genuine and sincere i.e. in good faith and objective test should be applied, mere desire without necessity cannot be treated to be bonafide. Another decision cited on behalf of the contesting respondent; Ashok Kumar v. 7th Additional District Judge, Muzaffarnagar and Others, 1998 (16) LCD 1149, Krishna Murari Agarwal v. Prescribed Authority/ACJM, Mainpuri and Others, 1998 (16) LCD 1154, M/s. Bata India Ltd. Calcutta v. 3rd Additional District Judge, Muzaffarnagar and Others, 2001 (19) LCD 330. On the basis of the aforesaid decisions, counsel for the respondents has emphatically argued that since findings of bonafide need and comparative hardship are finding of fact and therefore, are not liable to be interfered by this Court.

As already pointed out in the previous paragraph, taking into consideration various citations, I am of the considered view that the appellate Court has, without critically examining the judgment and order passed by the Prescribed Authority, without meeting reasons given by the said authority and without reversing findings recorded by it, substituted its own findings on the question of bonafide need and comparative hardship, thus the appellate Court acted as if it was the Court of original jurisdiction, while recording contrary finding, it was the duty of the appellate Court to have assigned specific and cogent reason for disagreeing with the findings of the trial Court. Judgment of the appellate authority is judgment of reversal and, therefore, adequate and satisfactory reasoning are to be recorded. It is well settled law that the judgment of reversal must contain definite findings on the question involved. On a reading of Section 22 of the Act, no doubt the appellate Authority has got power of varying, disagreeing or rescinding the order in appeal but only after recording cogent and valid reasons on the basis of the evidence on record. But in the instant case, bare reading of the impugned judgment and order, it makes apparent that the appellate authority failed to follow settled principle of law laid down by the Highest Court of the country, followed by the various High Courts. The appellate authority failed to record reasons and, therefore, must be quashed.

The landlord has valid and legal right to settle every adult member of his family and start his independent business and no landlord can be compelled by the tenant to select place of business on the dictate of a third person. It was held in the case of Mohammad Yaqoob v. IV Additional District & Sessions Judge, 1984 (2) ARC 401, that mere fact, landlord has let out several other shops is not enough to hold that need of the landlord is anything but bonafide unless it is established that the shops were let out after need of the landlord arose or during continuation of the release proceedings.

In view of the aforesaid submissions and law laid down by the various Courts, the impugned judgment and order 21.8.2003 passed by the lower appellate Court is quashed. Besides, unauthorized occupants are not entitled to oppose the release application. The matter is remanded to the lower appellate Court to decide afresh in the light of observation made in this judgment. The writ petition is allowed.

(Petition allowed)