Allahabad High Court
Aligarh Sarrafa Committee Sarrafa ... vs Smt. Prabha Rani And 2 Ors. on 4 November, 2022
HIGH COURT OF JUDICATURE AT ALLAHABAD RESERVED A.F.R. Court No. - 6 Case :- WRIT - A No. - 10347 of 2018 Petitioner :- Aligarh Sarrafa Committee Sarrafa Bazar And Another Respondent :- Smt. Prabha Rani And 2 Ors. Counsel for Petitioner :- Pankaj Agarwal Counsel for Respondent :- Akanksha Gaur,Kashi Naresh Mishra Hon'ble J.J. Munir,J.
1. This is a tenants' petition against an order of release passed under Section 21(1)(a) of The Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U.P. Act No. 13 of 1972) (for short, ''the Act') passed concurrently by the two Authorities below.
2. The two petitioners, who are effectively one, are tenants in a shop, situate at Sarrafa Bazar, Aligarh, admeasuring 15 square meters, of which Smt. Prabha Rani, respondent no.1 to this petition, is the landlady. The shop aforesaid is held by the petitioners at a monthly rent of Rs.50/-. The said shop shall hereinafter be called ''the demised shop'.
3. The facts giving rise to this petition are that Smt. Pratibha Rani, respondent no.1, who shall hereinafter be referred to as the landlady, instituted the present proceedings under Section 21(1)(a) of the Act with the case that she purchased two shops, admeasuring 15 square meters, situate at Sarrafa Bazar, Aligarh, through a registered sale deed dated 31.10.1995. Out of the two shops, the smaller one, which has a door of one meter, is in the occupation of the landlady's husband, Manohar Lal Gupta, who carries on the business of a jeweller therein. The other shop, that has a door of two meters wide, is in the tenancy occupation of the Aligarh Sarrafa Committee since the time of the previous owner and landlord, at the monthly rent, already mentioned hereinabove. It is the said shop, that has already been introduced hereinbefore as the demised shop. The Aligarh Sarrafa Committee, Sarrafa Bazar, Aligarh is a registered body, which has a triennial election and is represented by its Secretary. The Secretary of the aforesaid Sarrafa Committee is responsible for all actions of the Body and is competent to prosecute and defend legal proceedings on its behalf. The Aligarh Sarrafa Committee shall hereinafter be referred to as 'the tenant'. It is the landlady's case that the tenant has a weighbridge (dharamkanta) installed in the demised shop. For the present, the weighbridge is not in use. Every shop in the Sarrafa Bazar is now equipped with electronic weighing machines.
4. The tenant, apart from the demised shop, has another at Rafatganj, located at a short distance from the former. The tenant is the owner of the latter shop, where also a weighbridge is installed. The shop at Rafatganj also by and large remains closed. In addition, the tenant has still another shop, located at a distance of about 20 yards in the Surajbhan Market, Purani Kotwali, Aligarh, where too a weighbridge is installed. Whatever use the tenant has for a weighbridge is sufficiently met by the one that is housed in the shop that the tenant has at the Surajbhan Market. The Surajbhan Market is also part of the Sarrafa Bazar and, therefore, good for the requirements of the tenant. The tenant has one more shop, located near the Pyaun, that is situate opposite Kunji Lal's shop. The said shop is vacant and lying locked. The tenant is the owner of the said shop. Apart from all these three shops, barely 50 yards away from the demised shop, the tenant has a property known as 'Atithi Grih', situate at Purani Kotwali, Sarrafa Bazar. The said property is a mere 50 yards away from the demised shop. This property is a four storeyed building and apart from the occupancy on the ground floor, all floors of the building are lying vacant. The tenant can easily establish its weighbridge in any of these properties. It must be remarked here that the way the landlady has received assistance in the drafting of her application, it appears to be the result of inexperience or poor forensic talent. This Court says so because the first part of the application, in a case under Section 21(1)(a) of the Act, ought to carry pleadings about the landlord/landlady's bona fide need. The pleadings, that have just now been mentioned, seem to refer to the facts that are relevant about the issue of comparative hardship, which should come next after the pleadings related to the bona fide need. Nevertheless, despite the inartistic manner in which the pleadings have been drafted, do not detract from the merits of the landlady's case, because the relevant averments are there, may be in unhappy sequence.
5. It is then averred by the landlady that she applied for release of the demised shop earlier, setting up the bona fide need that her husband required it. The aforesaid case being U.P. U.B. Case No. 56 of 1998 was rejected by the Prescribed Authority vide judgment and order dated 08.12.2007. The judgment was affirmed in appeal on 18.01.2011. The landlady's case is that her son Prashant Gupta, who is a Doctor, has earned his Postgraduate Degree (MD) in Ophthalmology from the All India Institute of Medical Sciences, New Delhi and for the time being, employed temporarily at the Sanjay Gandhi Memorial Hospital, Mangolpuri, New Delhi as a Senior Resident. Prashant Gupta's wife, Smt. Savita Agrawal has earned her MD Degree in Pathology from the S.N. Medical College, Agra in the year 2008 and she too is temporarily working at New Delhi. Prashant Gupta is the only son of the landlady and wants to establish his clinic at Aligarh, utilizing the demised shop for the purpose. It is averred that there is no other doctor's clinic in the area. The clinic would offer stable employment to the landlady's son, where the husband and wife wife can practice together.
6. The landlady's case specifically urged is that she bona fide needs the demised shop for her son's clinic, particularly so as the landlady and her husband are moving towards old age and require their son's presence close at hand. In the event the demised shop is released, she would utilize it only for her son's clinic. She would not let out the shop again. It is averred at the tail-end of the application in a formal averment that comparative hardship lies in favour of the landlady and against the tenant.
7. The tenant filed its written statement, denying the landlady's case. It was, however, not denied that the landlady owns two shops, one of which is in her husband's occupation and further that her husband is engaged in business as a jeweller. It is also not disputed that the demised shop is held by the tenant on a monthly rent of Rs.50/-, where it has its weighbridge. It has been objected to by the tenant that the landlady has not filed any map along with her application. It is also pointed out by the tenant that Vijay Agrawal is the President of the Sarrafa Committee, Aligarh and Vinod Kumar is the Secretary. It is then pleaded on behalf of the tenant that the existence of the properties in Paragraph No. 3 is not admitted as pleaded, but this Court must remark that in Paragraph No. 4 of the written statement, the existence of the four properties, that the landlady has alleged in Paragraph No. 3 of the release application, has not been denied. What has been said is that those properties are not available to the tenant, because of non-vacancy. It is also asserted that it is incorrect to say that the weighbridge in the demised shop is non-functional.
8. It is also the tenant's case that the earlier release application, that the landlady had brought under Section 21(1)(a) of the Act on the grounds of her husband's requirement, has been rejected. The tenant has not denied the fact that the landlady has one son i.e. Prashant Gupta, but it is asserted that he is employed with the Sanjay Gandhi Memorial Hospital, Mangolpuri, New Delhi. It has further been said that the landlady is put to strict proof about her son's employment and that of his wife at New Delhi. It is the tenant's case that the landlady has not come to Court with clean hands. The landlady has not given out the details of her family members, their ages, status, business nor has she furnished the particulars of other properties owned by the members of her family at Aligarh or away from Aligarh. It is also pleaded that the dimensions of the shops purchased through the sale deed dated 31.10.1995 has not been given out.
9. It is the tenant's case that since the year 1994, the landlady has dragged the tenant to Court in baseless litigation. The landlady instituted Suit No. 457 of 1995, which was dismissed on 30.09.1999. Another S.C.C. Suit No. 28 of 1995 was instituted by the landlady, which was dismissed on 06.02.1998. The first release application being U.P. U.B. Case No. 56 of 1998 was dismissed on 09.02.2007 and the appeal therefrom being U.P. U.B. Appeal No. 1 of 2007 was dismissed on 18.01.2011.
10. It is the tenant's case that the landlady has no bona fide need. She has a son and four daughters, all of whom are doctors. All the children after earning their MBBS Degrees have also earned MD Degrees. They are well settled. The son is married and his wife is also a doctor, who is employed at Delhi for the past number of years. The landlady's son and his wife have no intentions of coming back to Aligarh, and settling down or establishing a clinic at Aligarh. The tenant has also asserted that the landlady and her husband live in a house which they own, situate at Gandhi Nagar at Aligarh. The landlady's husband is quite old. He is said to be above 60 years. It is pleaded that the landlady's husband, apart from his business as a jeweller, is also into money lending, besides working as a broker. The landlady wants to enhance the rent payable by the tenant.
11. It is asserted that the landlady's case that after release of the demised shop, she would not let it out, is not true, because once released, she would sell off the demised shop and the adjoining one too. In their old age, the landlady and her husband would move out of Aligarh to Delhi and live with their son and daughter-in-law. It is further pleaded by the tenant that the demised shop is not suitable either for Prashant Gupta or his wife and the two together cannot establish their clinic or nursing home or Pathology Laboratory in a shop that small. The tenant has also said that the landlady owns 30 bighas (kachcha) of agricultural land in Village Bhinauli and one big residential house at Gandhi Nagar, Aligarh. That apart, she has a property in Delhi. Her bona fide need does not exist. The tenant has no other property in a vacant state and, therefore, it is not possible to move the weighbridge installed in the demised shop to any other premises. Interestingly, the tenant has also pleaded in Paragraph No. 23 of the written statement that Dr. Asha Rathi, Dr. G.M. Rathi, Dr. M.C. Garg, Dr. Mahesh Garg and Dr. Dinesh Chandra have their clinics in the vicinity.
12. The landlady filed a replication, where her pleaded in the release application was reiterated and elucidated while traversing the tenant's objections.
13. The landlady filed in evidence, her own affidavit, Paper No. 17-Ga, the affidavit of her son Dr. Prashant Gupta, Paper No. 18-Ga, an affidavit of one Satya Prakash Sharma, Paper No. 19-Ga, an affidavit of Hari Mohan Verma, Paper No. 20-Ga and still another affidavit of Rajbabu Verma, Paper No. 34-Ga. In the rejoinder, the landlady filed her own affidavit, Paper No. 35-Ga, that of Raghuvar Dayal Gupta, Paper No. 36-Ga, the affidavit of Ravindra Kumar Verma, Paper No. 41-Ga, besides the affidavit of Prabha Rani together with two photographs. Along with the affidavit, Paper No. 6-Ga, a photostat copy of the sale deed dated 01.11.1995, a photostat copy of Prashant Gupta's MD Degree and a photostat copy of the certificate relating to Savita Agrawal issued by the Dr. B.R. Ambedkar Medical University, Agra, were brought on record. A further affidavit, Paper No. 43-Ga has been filed by the landlady, annexing with it a photostat copy of fellowship certificate from Shroff Eye Centre, New Delhi and an office order dated 14.11.2014 from the Uttar Pradesh Rural Institute of Medical Sciences and Research, Saifai, Etawah.
14. The tenant in its evidence has produced the affidavit bearing Paper No. 28-Ga from the Secretary, Sarrafa Committee, Vinod Kumar, another affidavit bearing Paper No. 29-Ga from Vinod Kumar, still another affidavit bearing Paper No. 30-Ga from Pradeep Agrawal and also an affidavit from the President, Sarrafa Committee, Vijay Agrawal (Paper No. 31-Ga), annexing with it the judgment dated 09.02.2007 in U.P. U.B. Case No. 56 of 1998, judgment dated 18.01.2011 in U.P. U.B. Appeal No. 1 of 2007, three rent receipts and two photographs. No documentary evidence, besides the above, was filed on behalf of the tenant.
15. The Courts below have found for the landlady on both counts of bona fide need and comparative hardship and granted the release application.
16. Aggrieved, the present writ petition has been instituted by the tenant.
17. Heard Mr. Pankaj Agarwal, learned Counsel for the tenant and Ms. Akanksha Gaur, learned Counsel for the landlady.
18. It is argued by Mr. Pankaj Agarwal, learned Counsel for the tenant that the landlady's son's need for establishing an Ophthalmology Clinic at Aligarh is without basis and flimsy. Her son Prashant Gupta along with his wife and children is a permanent resident of Delhi and working there. It is argued that there is nothing on record to show that the landlady's son has any intention to shift to Aligarh and set up his clinic, forsaking his roaring practice at Delhi. Learned Counsel for the tenant has drawn the Court's attention to the copy of the Voter ID Card and the other documents filed through the list bearing Paper No. 18-Ga, which show that the landlady's son is permanently residing at Delhi. It is argued that the Courts below ignoring all this evidence has allowed the release application on the ground alone that the landlord is the best judge of his requirement for the premises that he owns and the tenant cannot dictate terms to the landlord.
19. Ms. Akanksha Gaur, learned Counsel for the landlady, on the other hand, has refuted the submissions of Mr. Pankaj Agarwal. She has pointed out that the two Courts below have concurrently found the landlady's need to be bona fide and answered on the issue of comparative hardship also against the tenant, taking a plausible view of the matter, upon consideration of all evidence on record. It is not a case of non-consideration of material evidence. It is urged by the learned Counsel that there is no occasion for this Court to interfere with the concurrent findings of fact recorded by the two Courts below. It is particularly submitted that the tenant's case about the landlady's son being not minded to shift to Aligarh from Delhi, because he is well settled there, is without basis. Elucidating that submission of hers, learned Counsel points out that Prashant Gupta was first working with the Shroff Eye Centre, New Delhi. He then moved to the Sanjay Gandhi Memorial Hospital, Mangolpuri, New Delhi as a Senior Resident and thereafter to the Sitapur Eye Hospital. However, for the present, due to the difficulties faced by his aged parents, domiciled at Aligarh, the landlady's son has established a clinic at Aligarh. It is also emphasized that Dr. Prashant Gupta was in private employment, until he moved to Aligarh and was not employed in any government service. He has shifted to Aligarh in the year 2020, pending the writ petition and established his clinic in rented premises, admeasuring 2x5 square meters. The learned Counsel for the landlady points out that a copy of the rent agreement executed on 28.09.2020 between Dr. Prashant Gupta and his landlord, Jitendra Kumar son of Jauhari Mal Jain, is annexed as Annexure No. 1 to the counter affidavit.
20. It is also pointed out that Dr. Prashant Gupta is differently abled with a 52% permanent disability, known as Post Polio Residual Paralysis of the left lower limb, according to the said certificate, issued in this behalf by the Chief Medical Officer, Aligarh. It is for the said reason also that the landlady wants her son to be close by, besides her own difficulties of old age and that of her aging husband. It must be mentioned here that these documents were not on record before the Courts below.
21. The handicap certificate is of the year 2004 and may not be looked into by this Court for the reason that it was not filed before the Courts below. However, so far as the rent agreement is concerned, it is evidence of a supervening event that happened pending this petition. Possibly, the said agreement could never have been filed before the Courts below, as it never existed then. The document is related to the changing circumstances of parties and the cause of action in an application for release under Section 21(1)(a) of the Act, is to a large extent dynamic. The bona fide need of the landlady may vary with decisive events and so also the tenant's case about the parties' comparative hardship. This Court is of opinion, therefore, that the fact that the landlady asserts that pending this petition, the landlady's son has moved to Aligarh and established a clinic in a rented premises, a photostat copy of the rent agreement whereof he has annexed to the counter affidavit, must receive some consideration by this Court. This is not to say that the event in the case is to turn on the said fact alone, or even decisively, for the most of it is to be judged by the validity of the findings recorded by the two Courts below, on the twin issues of bona fide need and comparative hardship.
22. The Prescribed Authority has broadly opined that the landlady's need for the demised shop, in order to house her son's clinic there, is well established by the fact that the evidence on record shows that her son is not in any government employment. The principle, according to the Prescribed Authority, is that the landlord has a right to ensure that every adult member of the family is established in independent business/ profession. In all fairness to the tenant, the findings of the Prescribed Authority on the question of bona fide need are not very impressive. The opinion of the Prescribed Authority on comparative hardship is also not very well considered either. Perhaps, it is for this reason that the Appellate Court while writing a judgment of affirmation had to script a rather lengthy opinion, much beyond what would normally be the length of the expression.
23. The Appellate Court has wholesomely reviewed the parties' case and evidence on record, and after looking into the affidavits and other documents, has remarked that the tenant has said in its counter affidavit, Paper No. 56-Ga that the landlady's son earns with the Shroff Eye Centre a minimum of Rs. 1 lakh per month, and, therefore, the need set up by the landlady is mala fide. It has also been recorded by the Appellate Court that in the same affidavit it has been asserted that the landlady's son is not entirely unemployed and his clinical education has been completed in the year 2009. It has been observed by the Appellate Court that in the affidavit, it has been said by the tenant that the landlady has a two storeyed house at Gandhi Nagar, Aligarh, lying vacant, where her son can establish his clinic. The Appellate Court has recorded a finding to the effect that it cannot be denied that the landlady's son Prashant Gupta is a doctor, who has passed his MD in Ophthalmology from the AIIMS in the year 2009 and he is an Ophthalmologist. At the time when the release application was filed, the landlady's son was employed with the Sanjay Gandhi Memorial Hospital, Mangolpuri, New Delhi as a Senior Resident. The Appellate Court has remarked that work as a Senior Resident is part of the Postgraduate Training, which a doctor after earning the PG Degree has to undertake in a Government or non-Government Hospital for the purpose of achieving proficiency. The maximum period of this training is three years. The Appellate Court has concluded that residentship is, therefore, in its nature a temporary employment and not permanent. The Appellate Court has remarked that most doctors, after earning their Postgraduate qualifications, establish their own clinics and before they do so, endeavour to gain maximum professional experience by working as Residents in different hospitals. It is on the basis of the aforesaid position about the status of residentship, which this Court thinks has been correctly appreciated by the Appellate Court that the submission of the tenant that the landlady's son is permanently employed at Delhi was rejected. We are in agreement with the aforesaid conclusion recorded by the Appellate Court.
24. The Appellate Court has also taken note of the assertion in the landlady's affidavit, Paper No. 34-Ga that her son, Dr. Prashant Gupta has completed his fellowship with the Shroff Eye Centre on 6th October, 2015 and that on account of the demised shop not being released, forced to continue in employment with the Shroff Eye Centre. Note has also been taken of another affidavit, bearing Paper No. 46-Ga, where the landlady has stated that after 06.10.2015, upon completion of fellowship, her son is continuing with the Shroff Eye Centre on contract employment. On the foot of all these affidavits, the Appellate Court has remarked that it cannot be denied that Dr. Prashant Gupta was doing his Senior Residentship as part of his training or fellowship at the Shroff Eye Centre and after its completion, he is continuing there on contract. The Appellate Court has remarked that service on contract is temporary in nature and upon the contract coming to an end, the employer can always remove an employee. The Shroff Eye Centre is a private hospital. The management of this hospital can determine the services the landlady's son by notice. Thus, the services that Dr. Prashant Gupta is rendering with the Shroff Eye Centre are temporary in nature. It has, therefore, been concluded that Dr. Prashan Gupta is not in permanent employment. The Appellate Court has also rejected the tenant's submission that since the landlady's son has a Voter ID Card and Aadhaar Card, showing his domicile to be that of Delhi, he is a permanent resident of Delhi. This submission has been rejected on the foot of the reasoning that once the landlady's son is serving on contract basis in Delhi, it is but logical that his Voter ID Card and address would be that of Delhi. The Appellate Court has remarked that the mere fact that the landlady's son has an address of Delhi and a Voter ID Card, showing domicile Delhi, does not mean that he is permanently established in Delhi. It has been observed that no evidence has been offered by the tenant to show that Dr. Prashant Gupta is indeed permanently settled in Delhi.
25. The Appellate Court has held that the above circumstances show that the landlady's son is not permanently established in employment or practice at Delhi. Therefore, if he wants to move to Aligarh and set up an Ophthalmologist Clinic, in order to permanently settle himself in practice, in the Appellate Court's opinion, it is not a case of mere shifting to the demised shop. The landlady's need has, therefore, been held bona fide on these findings.
26. So far as the comparative hardship is concerned, the Appellate Court has held that burden lies on the tenant to establish it in its favour. On the basis of various affidavits on record, the Appellate Court has noticed the different properties owned by the tenant close by to the demised shop, reference whereof has already been made by this Court in the earlier part of the judgment. It has particularly been opined on the basis of affidavits, Paper Nos. 29-Ga, 30-Ga and 31-Ga that the fact that the tenant has a shop, opposite Kunji Lal's and a vacant status has not been denied. The Appellate Court has held that the said shop, opposite the Pyaun and Kunji Lal, is available to the tenant in a vacant state. It has also been opined that two of the tenant's shops already house functional weighbridges. In addition, in the Surajbhan Market, he has a three storeyed building, which is being used as a guest house. The first and second floors of the building are lying vacant. These can be utilized for shifting the weighbridge, currently housed in the demised shop. Likewise, it could be moved to the vacant shop, opposite Kunji Lal and the Pyaun. On the basis of existence of so much of alternative accommodation, comparative hardship has been answered against the tenant and for the landlady.
27. It is on the basis of all these conclusions that the order of release passed by the Prescribed Authority has been affirmed by the Appellate Court. There is nothing on record to show that the landlady's son is so well established in Delhi, either in some kind of service at a Government Hospital or his private practice, that he would possibly not ever think of moving to Aligarh and establishing his clinic there. The Appellate Court is quite right about its conclusions on the said fact, where it is noted that the landlady's son has an employment of sorts as doctor on contract with a private hospital, which can hardly be characterized as stable employment.
28. Quite apart, a doctor like a lawyer is the master of his profession, which he can always practice independently. In fact, very often the doctors, like lawyers, are more inclined to independently practice, rather than function under the yoke and harness of employment. Even if the landlady's son were employed in government service, in a hospital outside Aligarh, his desire to establish his own practice and its facilitation by the landlady, could not have been regarded as something, which did not constitute bona fide need within the meaning of Section 21(1)(a) of the Act. There is little doubt that Dr. Prashant Gupta is a member of the landlady's family. His wife is not. The fact that Dr. Prashant Gupta's wife has secured some employment as an Assistant Professor with the AIIMS at Saifai is hardly relevant to judge the question of bona fide need, which has rightly been confined by the Courts below to that of Dr. Prashant Gupta. There is authority in multitude and preponderant that lay down for rule that if the landlord requires some accommodation for establishing himself or an adult member of his family in business, which a fortiori would include a profession, it does not lie in the tenant's mouth to say that the landlord can secure that objective by establishing his business or profession elsewhere. The same is true of the landlord's adult family members. In this connection, reference may be made to the decision of this Court in Smt. Kanta and others v. Additional District Judge, Lucknow and 5 others, 2015 (1) ARC 459 (LB). In Smt. Kanta (supra), it has been held:
"10. ........... A tenant cannot dictate the terms to his landlord as to the choice of accommodation. He has relied upon a case reported in 2013 (1) ARC 217, Magan Lal Vs. Kalim Ullah, in which it has been held that need of the landlord to set up his son in a business, is a bonafide need. Reliance has also been placed upon the judgment reported in 2006 (1) ARC 282 Vishnu Kant Goswami Vs. IInd A.D.J., Allahaad and another; in which it has been held that every landlord and every adult member of his family is entitled to have a separate independent business and no landlord or any of his family member can be compelled to participate in the family business or joint business. Thus even if it is found that the landlord-opposite party no.3 is carrying on his business with his family members, it cannot be said that he cannot set up his adult son in an independent business."
29. Another important authority on the point is that of this Court in Bhagwat Prasad Agrawal v. Radha Raman Agrawal, 2015 (2) ARC 370. In Bhagwat Prasad Agrawal (supra), it has been held:
"The Prescribed Authority rejected the plea for the reason that the tenant cannot dictate as to which premises would suit the need of the landlord. The tenant cannot dictate terms or advise to the landlord that what he should do or what he should not. It is the privilege of the landlord to choose the nature and place of business. Therefore, it was not open for the petitioner to contend that the shop at the first floor would be most suitable to the landlord in carrying on the business in that premises. The plea that the respondent is a permanent resident of Delhi and, therefore, the premises is not needed, was not acceptable by the authorities for the reason that merely because the landlord was residing at Delhi would not mean that he would not come to Kosi, Mathura, his parental home, rather there is all the more reason for the landlord to reside or to open a office for Tax Consultancy, accordingly, the authorities found the need set up by the landlord to be bonafide. While considering the comparative hardship, it was duly proved by the landlord that the petitioner has other shops in the city, accordingly, relying upon Rule 16(2)(b) of the Rules of 1972 which provides that if the tenant is having alternative accommodation in his possession, there shall be greater justification for allowing the release application."
30. The landlord or a member of his family has absolute freedom to forsake his business or employment in another town or city and shift to the place, where his/ her property is situate and establish his/ her business there, gainfully utilizing the property. The tenant cannot be heard to say that the landlord or for that matter a member of his family should continue in employment at another place, where for the time being the landlord or the member of his family, for whose need release is sought, might be in employment or business.
31. The learned Counsel for the tenant has sought to draw a distinction between a positive decision by the landlord to shift according to his choice to the place, where he owns property, that he seeks release of, and the likelihood of the landlord indeed shift from his gainful and affluent employment in another city. Invariably, the landlady's choice to shift giving up employment or business in another place or town for the place where he/she owns property, cannot be questioned. For the sake of argument, however, if given the particular circumstances of a landlord or a member of his family, it can be shown by indubitable evidence that the landlord or the member of his family, for whose bona fide need release is sought, is so well established at another place that there is no likelihood of the landlord indeed shifting by any means and the application for release is nothing, but a sham, an arguable case might be made out. However, this Court does not wish to express any opinion on the point, because on the facts here, it does not really arise. The employment of the landlady's son here is a contractual engagement with a private hospital at Delhi and can, by no standard, be said to be such flourishing engagement that the landlady's son cannot be imagined to opt shifting to Aligarh and establish his clinic there.
32. So far as the issue of comparative hardship is concerned, both the Courts below have opined against the tenant and evidence is overwhelming on record with details of properties that shows that the tenant has property close by, even vacant and available, where it can shift. This Court is not inclined to interfere with the finding, therefore, on the issue of comparative hardship as well.
33. Before parting, this Court must remark that though the rent agreement that has been brought on record through the counter affidavit is not part of the record before the Authorities below and generally may not be looked into, but it is indeed a supervening event of much consequence. In the rejoinder affidavit filed on behalf of the tenant in Paragraph No. 21, there is a bald denial of the fact that the landlady's son has established his clinic at Aligarh in the year 2020, pending this petition in a rented premises. There is no evidence brought or attempted to be secured through the process of Court to demonstrate that in fact the rent agreement is a fake document and the landlady's son has not established his clinic in the rented premises, details whereof are given in the rent agreement with full disclosure of the landlord's name, parentage, address and that of the landlady's son, besides the terms of the lease. Instead, in answer, the tenant has asserted that the landlady's son has purchased a house admeasuring 284.98 square meters, part of House No. 3/73A, located at Plot No. 18, Vikram Colony, Koil, Aligarh, through a registered sale deed dated 13.11.2017, a copy whereof has been annexed, and that he can utilize the said property to establish his clinic. It is a well settled principle that the tenant cannot dictate to the landlord even if he has other property, the one he chooses to establish his business or profession. That apart, the property that has been purchased in the year 2017 appears to be residential property, which may not be suitable for a clinic or may be contrary to the local authorities' regulations as well, regarding residential and commercial user. The facts that have been noticed in the last part of our judgment have primarily been looked into for the purpose of considering whether this Court should exercise its extraordinary jurisdiction to interfere with the concurrent findings of the two Courts of fact below. The facts additionally noticed, leave no manner of doubt in this Court's mind that the tenant is not entitled to relief in the exercise of our equitable jurisdiction under Article 226 of the Constitution.
34. This petition fails and is dismissed.
35. The interim order dated 08.04.2022 is hereby vacated.
36. However, considering the facts and circumstances, the tenant-petitioners are allowed six months time to handover peaceful and vacant possession of the shop in dispute provided they execute an undertaking before the Prescribed Authority, Aligarh, embodying the following terms within one month of date:
(1) The tenants shall handover peaceful and vacant possession of the demised shop to the landlady-respondent no.1 on or before 03.05.2023.
(2) During the period of six months that they remain in occupation, they will not sublet the shop, damage or disfigure it in any manner whatsoever.
37. In the event, an undertaking, as above directed, is not filed before the Prescribed Authority by the tenant within the time allowed or undertaking is violated, the release order shall become executable forthwith.
Order Date :- 04.11.2022 Anoop