Allahabad High Court
Awadesh Kumar And Others vs Rameshawar Dayal (Since Deceased) And ... on 17 November, 2022
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved Court No. - 6 A.F.R. Case :- WRIT - A No. - 11644 of 2018 Petitioner :- Awadesh Kumar and others Respondent :- Rameshawar Dayal (since deceased) and others Counsel for Petitioner :- Mr. B.N. Agarwal, Advocate Counsel for Respondent :- Mr. Atul Dayal, Senior Advocate assisted by Mr. Ayush Khanna, Advocate Hon'ble J.J. Munir,J.
This is a tenants' writ petition assailing an order of release 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. An application for the release of a shop, situate in Mohalla Lajpat Nagar, Bazar Manik Chowk, Konch, District Jalaun, was moved by Rameshwar Dayal son of Sri Munga Lal before the Prescribed Authority/ Civil Judge (Jr. Div.), Konch, District Jalaun against the three tenant-petitioners, Awadesh Kumar, Jitendra Kumar and Mukesh Kumar, all sons of the late Balram Soni. The boundaries of the shop aforesaid are detailed at the foot of the release application, instituted before the Prescribed Authority. This shop shall hereinafter be referred to as ''the demised shop'.
3. The application for release under Section 21(1)(a) of the Act was moved by Rameshwar Dayal against the three tenant-petitioners on the ground of his bona fide need, which shall hereinafter be detailed.
4. Pending proceedings before the Appellate Authority, Rameshwar Dayal died and was substituted by his heirs and LRs, who are landlord-respondents nos. 1/1, 1/2, 1/3, 1/4 and 1/5 to this petition. Rameshwar Dayal (since deceased) and represented by his heirs and LRs on record, shall hereinafter be referred to as ''the landlord', unless the context requires individual reference, in which case the landlord concerned will be referred to by his name. The application for release instituted by the landlord before the Prescribed Authority, Jalaun at Orai was registered as P.A. Case No. 4 of 2012. The case of the landlord was that the demised shop, the boundaries whereof are detailed in Paragraph No. 1 of the application (also at the foot thereof) was in the tenancy occupation of the tenant-petitioners' father, Balram son of Hariram Soni.
5. The landlord asserted that the tenant-petitioners' father held the demised shop as his tenant. The three tenant-petitioners, Awadesh Kumar, Jitendra Kumar and Mukesh Kumar, who shall hereinafter be referred to as ''the tenants' (unless the context requires individual reference, in which case the tenant-petitioner(s) concerned shall be mentioned by name) succeeded to the tenancy occupation of the demised shop upon their father's death on 16.04.2006. The tenants are in arrears of rent, which is payable at the rate of Rs.225/- per month, amounting to Rs.2700/-, due since before 01.04.2006. The tenants are defaulters.
6. According to the landlord, amongst the tenants, Awadesh Kumar was managing a tea shop in partnership with one Gopi Chand Saxena at Mohalla Naya Gandhi Nagar, Konch. Likewise, the other tenant, Jitendra Kumar has established his business under the name and style of Balaji Jewellers in a shop situate at Town Ait. The third tenant, Mukesh Kumar had migrated to Pune, Maharashtra, where he was employed as a worker in a factory and permanently domiciled there. The demised shop is lying locked. The tenants, therefore, have no use for the demised shop at all, which has lost all purpose and utility for them. The landlord requires the demised shop for his younger son, Mukesh Kumar, who is aged about 30 years, educated and unemployed still. Mukesh Kumar has married 8 years ago and is living separately. The landlord desires to settle his son aforesaid in the jewellers' business, utilizing the demised shop, which is suitable for the purpose.
7. The need of the landlord compared to the tenants is weightier. The tenants would not face any hardship in vacating the demised shop, because they do not need it, whereas the landlord would face extreme hardship in case release were refused. This is so as the landlord does not have any alternative shop for the purpose of establishing his son, Mukesh Kumar in business.
8. It was also averred in the application for release that on 20.09.2012, the landlord caused a notice to quit to be served upon the tenants, asking them to vacate the demised shop and handover vacant possession upon the expiry of 30 days from the date of receipt, but the tenants upon service got the same answered through their Counsel vide reply dated 15.10.2012, premised on incorrect facts and disclosing an untenable stand. The provisions of the Act are applicable to the demised shop. It is on the basis of the said case that the landlord sought release of the demised shop in his favour.
9. The tenants filed a written statement dated 10.04.2013, wherein they acknowledged their status as tenants and pleaded that their father was earlier the tenant in the demised shop. Now, the tenants held those rights. The assertion about one of the tenants being a partner with Gopi Chand Saxena in a shop at Gandhi Nagar, Konch was denied. It was asserted that Gopi Chand Saxena was a tenant of some kind of a structure situate to the west of the demised shop along with Awadesh Kumar, described in vernacular as a ''Dhala', which was rented to them by the Nagar Palika Parishad, Konch at the rate of Rs.120/- per year. Gopi Chand Saxena and Awadesh Kumar were partners in business managed in the Dhala aforesaid, which was distinct and different from the demised shop. The tenants pleaded that it was falsely claimed by the landlord that Gopi Chand Saxena was a partner along with Awadesh Kumar in the demised shop.
10. It was denied that the landlord's son, Mukesh Kumar was unemployed. The receipt of notice served by the landlord was also acknowledged, but not the contents thereof. It was also refuted that the provisions of the Act apply to the demised shop. About the inapplicability of the Act, the stand taken in Paragraph No.7 of the written statement was that the Act does not apply, because the owner and landlord of the demised shop is not Rameshwar Dayal, but the Nagar Palika Parishad, Konch.
11. In the additional pleas, it was asserted that the landlord had earlier instituted S.C.C. Suit No. 3 of 2012, Rameshwar Dayal vs. Awadesh Kumar and others on 16.01.2012 before the Judge, Small Cause Court, wherein they had impleaded the tenants' mother, Smt. Bhagwan Devi as a defendant, acknowledging her to be a tenant in the demised shop. It was asserted that she was not impleaded as a party to the present application, rendering it bad for non-joinder of a necessary party. The stand that was further taken in the written statement was that the landlord's case that they are owners and landlords of the demised shop is incorrect. The true owner and landlord of the demised shop is the Nagar Palika Parishad, Konch, in whom the ownership of the said shop vests. The landlord of the demised shop being the Nagar Palika Parishad, Konch, which is a local authority, the provisions of the Act were not applicable. In consequence, proceedings for release under Section 21(1)(a) of the Act were not maintainable.
12. There is then an assertion by the tenants to the effect that the Nagar Palika Parishad, Konch is established by the quinquennial tax assessment register for the years 1995-2000 to be the owner and landlord of the demised shop. The said record further shows that the landlord's father, Munga Lal son of Mukta Prasad was a lessee of the demised shop. On the foot of the said assertions, it is pleaded that the landlords have no locus standi to maintain proceedings for release, because it is the Municipal Board, Konch, which alone can initiate proceedings to evict the tenants.
13. The boundaries of the demised shop were also claimed to be incorrectly described by the landlord. The tenant has further asserted that the landlord has already instituted a suit for eviction against the tenants, wherein an application under Order XV Rule 5 CPC is pending disposal. The case of bona fide need of the landlord has been denied. It is pleaded that the landlord is an Advocate by profession as the notice dated 09.04.2010 served by him shows. His son, Mukesh Kumar does not require the demised shop at all, because he is not unemployed. The need set up by the landlord, therefore, is artificial, which cannot be the basis of granting an application under Section 21(1)(a) of the Act.
14. It is the tenants' case that in Mohalla Jai Prakash Nagar, the landlord owns two shops and a house, where one shop is lying vacant. In the same locality, the landlord has purchased a new shop in the name of his wife, Smt. Shakuntala, which is lying vacant. There is an averment that if at all ''the so called son' of the landlord requires a shop for purpose of business, he can utilize the vacant shop, newly purchased. The tenant has also asserted that the landlord has four other shops in Mohalla Patel Nagar, Town Konch, out of which two are in the occupation of his sons, Sanjay Soni and Mukesh Soni, who carry on the business of jewellers for the past many years therein. As such, the landlord's son, Mukesh Kumar cannot be said to be without livelihood. The tenants, on the other hand, have no other shop to earn their livelihood, except the demised shop. Amongst the tenants, Awadesh Kumar and Jitendra Kumar are married men, who have in their family their wives and four children. Mukesh Kumar, amongst the tenants, is unmarried. The tenants' mother is still alive. They are a family of ten souls, all of whom are dependent upon the demised shop for sustenance.
15. It is in the last asserted by the tenants that comparative hardship lies in their favour as they would suffer greater hardship in the event of release than that which the landlord would face in the event of refusal of the application.
16. The landlord by way of documentary evidence, filed a copy of the notice dated 20.09.2012, paper No. 9-Ga, the registered postal receipt and the acknowledgment, paper No. 10-Ga-1, a copy of the lease deed, paper No. 27-Ka-1, the Board Resolution, paper No. 28-Ga1, a copy of the plaint giving rise to O.S. No. 132/10, paper No. 29-Ga-1, a copy of the written statement filed in Suit No. 132/10, paper No. 30-Ga-1, a copy of the written statement filed in O.S. No. 39/12, paper No. 31-Ga-1, receipt bearing paper No. 55-Ga-1, acknowledgment, paper No. 56-Ga-1, reply notice, paper No. 57-Ga-1 and a copy of the order passed in Suit No. 439/12, paper No. 58-Ga-1. Apart from these documents, the landlord led oral evidence in form of affidavits of PW-1, Rameshwar Dayal, PW-2, Banke Bihari Soni and PW-3, Ashutosh Kumar Gupta. These witnesses were cross-examined with the permission of the Court.
17. The tenants produced in their documentary evidence through a list, paper No. 43-Ga-1, a copy of the plaint giving rise to S.C.C. Suit No. 03/2012, paper No. 44-Ga-1, copy of the written statement, paper No. 45-Ga-1, a copy of the sale deed dated 23.03.2013 executed by Laxmi Devi in favour of Mukesh Kumar, Paper No. 46-Ga-1, a copy of the sale deed executed by Shailesh Sonkar in favour of Shakuntala wife of Rameshwar and a sanctioned plan for Mukesh's house, paper No. 47-Ga-1. Through another list, paper No. 59-Ga-1, a copy of the sale deed executed by Mukesh Kumar in favour of Kamlesh Kumar, paper No. 60-Ga-1 and a copy of the sale deed executed by Mukesh Kumar in favour of Harcharan, paper No. 61-Ga-1 were filed. Apart from these documents, the tenants produced oral evidence on affidavit, comprising affidavits of DW-1, Awadesh Kumar, DW-2, Hanif and DW-3, Gopi Chand Saxena. The witnesses were cross-examined with permission of the Court.
18. The Prescribed Authority framed the following issues, in terms of which the parties' case was considered by it (translated into English from Hindi):
"(1) Whether in the present case, the provisions of Act No. 13 of 1972 do not apply?
(2) Whether the relationship of landlord and tenant exists between the applicant and the opposite party?
(3) Whether the applicant has bona fide need for the shop in dispute?
(4) Whether the applicant would face greater hardship in comparison to the opposite party?
(5) Whether the opposite party deserves to be evicted from the shop in dispute?"
19. The Prescribed Authority in substance held that the tenants had taken the demised shop on rent from the landlord and was paying rent to Rameshwar Dayal. As such, Rameshwar Dayal was the landlord, vis-a-vis the tenants. The Prescribed Authority held that the tenants' case that the land, on which the demised shop was constructed, was taken on lease from the Nagar Palika Parishad, Konch, would not make the Nagar Palika Parishad the landlord vis-a-vis the tenants. Thus, the provisions of the Act would apply to the demised shop and it would not be exempt from the operation of the Act by virtue of Section 2(1). The question of relationship of landlord and tenant was answered accordingly, bearing in mind the distinction between the well defined concepts of owner and landlord of an immovable property. The tenants having inherited the tenancy from their father upon his death, the Prescribed Authority also held that the failure to join the tenants' mother, was hardly of consequence. This was so, because the tenants, which may include their mother, were joint tenants, and proceedings against one were competent against all. The issue of bona fide need and comparative hardship were answered in favour of the landlord and against the tenants.
20. On the aforesaid findings, the Prescribed Authority allowed the release application and directed the tenants' eviction upon usual terms as to payment of two years' rent as compensation by the landlord vide judgment and order dated 01.04.2016. The aforesaid judgment was impugned in appeal before the District Judge, Jalaun at Orai. The appeal was registered before the learned District Judge as Rent Appeal No. 4 of 2016. It was heard and dismissed by the learned District Judge vide judgment and order dated 15.02.2018, affirming all the findings of the Prescribed Authority.
21. Aggrieved, the tenants have preferred the present writ petition.
22. Heard Mr. B.N. Agarwal, learned Counsel for the tenants and Mr. Atul Dayal, learned Senior Advocate assisted by Mr. Ayush Khanna, learned Counsel appearing for the landlords.
23. The learned Counsel for the tenants has much emphasized the point that the provisions of the Act are not applicable to the demised shop. He submits that the two Authorities below have written palpably erroneous findings on the said issue, which is jurisdictional and vitiates the release order. It is argued that the Act not being applicable, the application for release is not maintainable. Learned Counsel for the tenants has urged that the Act is not applicable to the demised shop, inasmuch it is the landlord's admission in the notice to quit dated 09.04.2010 and in the plaint giving rise to Suit No. 3 of 2012, instituted before the Judge, Small Cause Court that it does not apply. Learned Counsel for the tenants has drawn the attention of this Court to Paragraph No. 5 of the notice to quit, where there is an assertion that the Act does not apply. This Court has also been taken through the contents of the plaint, giving rise to Suit No. 3 of 2012. It must be remarked here that it was the tenant's case before the Authorities below as well that the Act does not apply, but the basis to claim that was very different from that urged by the learned Counsel for the tenants here.
24. Before the Authorities below, the case was that the Nagar Palika Parishad was the owner and landlord of the demised shop and a building, of which a Local Authority is the landlord, is exempt from operation of the Act. The Act is not applicable. Both the Authorities below, on the basis of evidence on record, came to the conclusion that the aforesaid stand of the tenants was far from tenable. It has been held concurrently by the two Authorities below that the land, whereon the demised shop stand was leased to the landlord's father by the Nagar Palika. The demised shop was constructed by the landlord's father, Munga Lal and let out to the tenants. The Authorities below have opined that the Nagar Palika may be the owner of the underlying land, on which the demised shop stands, but so far as the demised shop is concerned, the landlord is the owner thereof and the landlord as well.
25. It appears to us that there is hardly a cavil about the fact that the land, whereon the demised shop stands, was given on lease for 30 years by the Nagar Palika to the landlord's father, Munga Lal. A copy of the lease deed was filed on record before the Authorities below as Paper No. 27-Ga-1. The term of the lease was initially for a period of 30 years, reckoned from the year 1955. This lease deed has been twice renewed for the same period of time. There is enough evidence by way of admission and documents on record to show that the tenants, who do not renounce their character as such, were tenants, to whom the demised shop was let out by the landlord. There is no relationship of landlord and tenant between the Nagar Palika Parishad, Konch and the tenants. It cannot possibly be so on the given state of evidence, which the two Authorities below have correctly appreciated.
26. Before the Authorities below, the tenants went inconsistent to say that they were tenants, but held the demised premises on behalf of the Nagar Palika Parishad, Konch, who are the landlord. There is not the slightest evidence on record to show any contract of tenancy between the tenants and the Nagar Palika. There is no rent agreement or receipt to establish it. The tenants raised the aforesaid plea before the Authorities below to escape the jurisdiction of the Authorities under the Act by attempting to project the Nagar Palika as the owner and the landlord of the demised shop. In the opinion of this Court, the Authorities below rightly repelled the said case pleaded by the tenants, which is preposterous to its face. The Authorities below have also drawn a distinction between the ''owner' and ''landlord' to hold that the Nagar Palika might be the owner, but not the landlord. That is a far-fetched remark, because the Nagar Palika is certainly not the owner of the demised shop, which has been constructed by the landlord's father, from whom the landlord has inherited it. The tenancy originally stood in the name of the tenants' father, Balram Soni, from whom the tenants have inherited it. The fact that there is a relationship of landlord and tenant for the aforesaid reason between parties, cannot be denied, which too, the tenants have attempted to do, albeit unsuccessfully, before the Authorities below.
27. Before this Court, the tenants have urged it for the first time that the Act does not apply for a different reason. The reason is the admission in the notice to quit dated 09.04.2010 and the plaint in S.C.C. Suit No. 3 of 2012. A perusal of the notice does show that there is an assertion in Paragraph No. 5 that the Act does not apply, but this point was not raised before the two Authorities of fact below. In our opinion, therefore, it cannot be permitted to be raised for the first time before this Court in writ proceedings. Also, the averment in Paragraph No. 5 of the notice to quit dated 09.04.2010 apart, the plaint giving rise to S.C.C. Suit No. 3 of 2012, does not show at all that it was ever pleaded by the tenants that the Act does not apply. The pleadings in the plaint giving rise to S.C.C. Suit No. 3 of 2012 show that one shop was let out to the tenants on 14.09.1975, and, later on, an adjoining one on 13.02.1991, when it was vacated.
28. Upon the representation of the tenants that they would enhance rent, the landlord's father, Balram got the partition wall between the two shops removed and carried out major repairs, leading to the demised shop being a new one in the year 1991. It is perhaps from the said averment that the tenants have been inspired into urging before this Court that the landlords have pleaded in the plaint, giving rise to S.C.C. Suit No. 3 of 2012, that the Act does not apply. A careful reading of the plaint does not at all show it to be the landlord's case that the Act does not apply. The suit is clearly one based on a cause of action of default under the Act, upon a wholesome reading of the plaint. If at all the tenants had to seriously urge that the landlord had admitted in his pleadings or elsewhere like the notice to quit, that the Act did not apply, the point had to be raised before the Authorities below and the landlord confronted with the same. The necessity arising, he had to be cross-examined the way it was done with reference to the other issues raised by parties, regarding which witnesses were produced. Nothing of the kind was done, because the point was never raised. Therefore, before this Court, the tenants cannot be permitted to urge a new ground based on a case that was never taken before the two Authorities below. It is, therefore, held that the Authorities below have rightly opined that the Act does not apply and further that there is relationship of landlord and tenant between parties.
29. The next point that has been urged is that the original tenant was Balram Soni, who left behind him as his heirs and LRs not just the tenants, but their mother, Bhagwan Devi as well. It is urged that Bhagwan Devi was impleaded as a party-defendant to S.C.C. Suit No. 3 of 2012 instituted by Rameshwar Dayal against the tenants, but for some inexplicable reason that course was not adopted while bringing the present release proceedings. It is urged that in the case of a commercial accommodation, every heir of the original tenant inherits the tenancy under Section 3(a)(2) of the Act. It is by now well settled that in case of the death of the sitting tenant, in case of a non-residential building, all his heirs inherit the tenancy no doubt, but they do so as joint tenants; not as tenants in common. Therefore, the heirs of the deceased-tenant, vis-a-vis the landlord, inherit a single tenancy and not divisible rights. Notice to one or impleadment of one for the purpose of bringing an action to evict or release proceedings is good against all the joint tenants. It is not necessary to implead every heir of the deceased-tenant as a party to the proceedings. This position is beyond cavil after the decision of the Supreme Court in Harish Tandon v. Addl. District Magistrate, Allahabad, U.P. and others, (1995) 1 SCC 537. In Harish Tandon (supra), it has been held:
"22. The attention of the learned Judges constituting the Bench in the case of H.C. Pandey v. G.C. Paul [(1989) 3 SCC 77] was not drawn to the view expressed in the case of Mohd. Azeem v. Distt. Judge [(1985) 2 SCC 550 : (1985) 3 SCR 906] . There appears to be an apparent conflict between the two judgments. It was on that account that the present appeal was referred to a Bench of three Judges. According to us, it is difficult to hold that after the death of the original tenant his heirs become tenants-in-common and each one of the heirs shall be deemed to be an independent tenant in his own right. This can be examined with reference to Section 20(2) which contains the grounds on which a tenant can be evicted. Clause (a) of Section 20(2) says that if the tenant is in arrears of rent for not less than four months and has failed to pay the same to the landlord within one month from the date of service upon him of a notice of demand, then that shall be a ground on which the landlord can institute a suit for eviction............. We are of the view that if it is held that after the death of the original tenant, each of his heirs becomes independent tenant, then as a corollary it has also to be held that after the death of the original tenant, the otherwise single tenancy stands split up into several tenancies and the landlord can get possession of the building only if he establishes one or the other ground mentioned in sub-section (2) of Section 20 against each of the heirs of original tenant. One of the well-settled rules of interpretation of statute is that it should be interpreted in a manner which does not lead to an absurd situation.
23. It appears to us, in the case of H.C. Pandey v. G.C. Paul [(1989) 3 SCC 77] it was rightly said by this Court that after the death of the original tenant, subject to any provision to the contrary, the tenancy rights devolve on the heirs of the deceased tenants jointly. The incidence of the tenancy is the same as those enjoyed by the original tenant. It is a single tenancy which devolves on the heirs and there is no division of the premises or of the rent payable therefor and the heirs succeed to the tenancy as joint tenants."
30. In this view of the matter, this Court finds no infirmity in the holding of the two Authorities below.
31. This brings to the forefront the issue of bona fide need, which has again been concurrently answered in favour of the landlord by the two Authorities below. The learned Counsel for the tenants has been unsparing in his criticism of the findings that the Authorities below have recorded on the issue of bona fide need.
32. It is argued that the findings of the Authorities below, including the Appellate Authority, are vitiated on the issue of bona fide need for non-consideration of material evidence on record. The learned Counsel for the tenants has argued that the finding of the Appellate Authority, in particular, is vitiated, because he did not consider the report of the Civil Court Amin and the sanctioned map, which was directed to be kept on file vide order dated 25.08.2017, both relating to the demised shop and the constructions made above it by the landlord. It is urged that if the said document taken into consideration, the conclusions of the Appellate Authority would be different. It is next submitted that from the evidence on record, it is pellucid that the landlord's son has his business in the Sarrafa Bazar. He is not employed. Besides, there are a number of other vacant shops available with the landlord, where he can house his son's business, if he desires to establish an independent one.
33. The learned Counsel for the landlord has refuted above submissions and says that the landlord's son, Mukesh Kumar is unemployed. The two Authorities below, on the basis of evidence of record, have opined that the landlord's son, though educated, is unemployed. No doubt, the landlord has admitted in his cross-examination that he has shops in different localities, but most of these are occupied. He has two shops in Mohalla Jai Prakash Nagar, where he has his residential house. Both the shops are not vacant. The landlord has admitted that he has purchased a plot of land by the roadside, but there is no construction raised thereon. In Mohalla Patel Nagar, the landlord has acknowledged that he has four shops. Out of these, in two, his elder son carries on his jewellers business and the other two are occupied by tenants. It is the landlord's specific case, by which he has stood in his cross-examination, that his younger son, Mukesh does not work in the shop along with his elder brother, Sanjay. The landlord has further admitted that he had five shops in Mohalla Jawahar Nagar. One of the said shops has been sold out. This leaves a residue of four with the landlord. The Appellate Authority has opined that the bona fide need of the landlord's younger son is there, who is unemployed and has a family. It has been further opined that merely because the landlord has other premises or plots, his release application cannot be rejected.
34. This Court has carefully considered the matter and noticed the stand of the landlord in the cross-examination. The stand of the tenants too will be shortly noticed. The foremost question to be considered is whether the landlord's son is indeed unemployed. The landlord has said it on affidavit that Mukesh is unemployed and a married man, who is in need of a source of livelihood. His elder brother is settled in the jewellers' business and that is Mukesh's aspiration too. There is no reason to disbelieve the landlord's assertion that his son Mukesh is unemployed. There is no evidence brought on record to establish that Mukesh is engaged in some gainful occupation.
35. In his affidavit dated 17.08.2015, Awadesh Kumar has stated that Mukesh Kumar does not require the demised shop and he is not unemployed. Rather, he is gainfully employed. Mukesh Kumar has eight vacant shops in Mohalla Jawahar Nagar, newly constructed, that are situate close to the main market. Mukesh Kumar is free to establish his business in the said shops. It is also said in Paragraph No. 9 of his affidavit that the landlord has purchased a new shop in the name of his wife at Mohalla Jai Prakash Nagar and already has another two there, out of which one is vacant. In any of the said shops, Mukesh Kumar can conveniently establish his business. It is also said in the same paragraph of his affidavit by Awadesh Kumar that in Mohalla Patel Nagar, the landlord has four shops, where in two of these, his sons, Sanjay Soni and Mukesh Kumar are engaged in the jewellers' trade. In his cross-examination, this witness has said that Mukesh is married and he has two shops in Mohalla Patel Nagar. The landlord's elder son, Sanjay and Mukesh do business together. Both the brothers and their families live together.
36. Appreciating the aforesaid evidence, the Authorities below have opined that Mukesh Kumar is not gainfully employed. It is clear that the tenant has not been able to point out how Mukesh is gainfully employed. There is a distinction between the availability of accommodation with the landlord, where an adult member of his family can establish his business and the fact that the member of his family, for whose requirement the landlord seeks release of an accommodation, is actually in gainful employment. The inference of bona fide need is to be drawn from the latter fact and not the former. If the landlord is able to show that an adult member of his family is not in gainful employment, or even in stable gainful employment, that is independent, it is not for the tenant to show and say that another accommodation, that is available with the landlord, can be utilized for the purpose. Here, there is no positive evidence against the landlord's categorical assertion to the effect that Mukesh Kumar is in actual gainful and stable employment of his own.
37. The tenant, Awadesh has acknowledged in his cross-examination that the two brothers, Sanjay and Mukesh carry on business together in two shops that the landlord had in Mohalla Patel Nagar. The landlord, to the contrary, has stated that it is only Sanjay, who has his business there. Even if the tenant's assertions were to be accepted as correct, Mukesh and Sanjay are carrying on business in Patel Nagar together and not independently. Therefore, Mukesh has a right to establish an independent business at a place of his choice. For the said purpose, the landlord has a right to claim his bona fide and seek release of the demised shop.
38. The learned Counsel for the tenants has drawn the Court's attention to the sale deed of a plot, purchased by Mukesh Kumar in Mohalla Jawahar Nagar, to show that his occupation is indicated in the sale deed as 'dukandaari'. From the said document, the Authorities below have not drawn any inference and this Court does not think that even if the Authorities below considered it, they could hold Mukesh to be gainfully employed. Given Mukesh's station in life, it is but natural to describe his occupation as business on any legal document, that requires it to be spelt out. It cannot be read or understood as evidence of his gainful employment, which the tenant wants the Court to do.
39. It is true that there is evidence on record to show that the landlord has shops in two or three localities and some of them, the landlord has acknowledged with candor, to be vacant. These shops are located in Mohalla Jawahar Nagar. There is no evidence that the other shops are vacant and available. Given the fact that the landlord has four shops in Jawahar Nagar, a look at the tenant's cross-examination is startling. In answer to a question in the nature of an offer to him to take another shop from the landlord instead of demised shop, he has stated:
"यदि वादी मुझे कोई दुकान दे तब भी मैं दुकान खाली नहीं करुंगा।"
40. This part of the tenant's cross-examination has been taken note of the Appellate Authority on the issue of comparative hardship. This Court is of opinion that on the issue of bona fide need, the aforesaid stand of the tenant is very relevant. It is reflective of mala fides and obduracy. The tenants have no right to tell the landlord how and in what manner, he should go about satisfying his bona fide need. It is precisely in this context that the principle under reference has been laid down. The tenant says that the landlord has a number of shops available with him, where his son can set up independent business. That is precisely what the tenant cannot tell the landlord. Once the landlord's son is proven to be not gainfully employed in independent business, it is the landlord's right to seek release of any of the shops that he owns for his son's need. The landlord cannot be driven to ask his son to set up business in a vacant shop of his, which is not the landlord's choice. In this connection, reference may be made to the decision of the Supreme Court in Sarla Ahuja v. United India Insurance Company Ltd., (1998) 8 SCC 119, where in the statutory context of a similar provision in the Delhi Rent Control Act, it has been held:
"14. The crux of the ground envisaged in clause (e) of Section 14(1) of the Act is that the requirement of the landlord for occupation of the tenanted premises must be bona fide. When a landlord asserts that he requires his building for his own occupation, the Rent Controller shall not proceed on the presumption that the requirement is not bona fide. When other conditions of the clause are satisfied and when the landlord shows a prima facie case, it is open to the Rent Controller to draw a presumption that the requirement of the landlord is bona fide. It is often said by courts that it is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without getting possession of the tenanted premises. While deciding the question of bona fides of the requirement of the landlord, it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted himself."
41. Again, very pertinent remarks are to be found in the holding of this Court in Ram Kumar v. IVth Addl. District Judge, Kanpur and others 2004 SCC OnLine All 726. In Ram Kumar (supra), it is observed:
"9. The finding of the Appellate Court that since the landlord had several other plots and buildings, he could easily accommodate his son in any of these buildings and plots, is patently erroneous and cannot be a ground for denying the relief claimed by the petitioner. It is settled law that if there are several buildings owned by the landlord, it is always open to the landlord to chose any building which he likes or which he thinks to be best for the business. The tenant cannot object nor can raise such a plea that the landlord has other accommodation from which he can do the business. Similar view was expressed by the Supreme Court in M.M. Qasim v. Manohar Lal Sharma, [1981 (3) SCC 36.] as well in N.S. Datta v. VIIth Addditional District Judge, Allahabad. [ 1984 ARC 113.]"
42. To like effect is the holding of the Supreme Court in Mohd. Ayub and another v. Mukesh Chand, (2012) 2 SCC 155. The proposition on which the Authorities below have concurrently held against the landlord, is too well settled to brook doubt. The evidence on record, which the Authorities below have noticed, squarely attracts the principle, where the landlord, who has a bona fide need, cannot be instructed by the tenant to satisfy it elsewhere in a manner that the tenant suggests.
43. In this Court's opinion, the finding of the two Authorities below is based on a reasonable and plausible view of the matter, which does not call for interference.
44. So far as the issue of comparative hardship is concerned, the two Authorities below have taken note of the fact that the tenants have not made efforts to find alternative accommodation during all this period of time, which tilts the balance of comparative hardship against them. The Appellate Authority has taken particular note of the fact that the tenant in his cross-examination has said that even if the landlord were to offer him another shop, he would not vacate the demised shop. This stand of the tenants, the Appellate Authority has regarded as malicious.
45. In these circumstances, this Court is of opinion that the issue of comparative hardship has been rightly answered against the tenants by the Authorities below. Quite apart, this Court in a writ petition under Article 226 of the Constitution generally ought not to interfere with concurrent findings of fact recorded by the Authorities below, unless shown to be perverse or manifestly illegal. That is not the case here.
46. In the circumstances, this petition fails and is dismissed.
47. The interim order is hereby vacated.
48. However, considering the facts that the tenants have been in occupation of the demised shop for a considerable period of time, they 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, Jalaun, embodying the following terms within one month of the date of receipt of a certified copy of this order:
(1) The tenants shall handover peaceful and vacant possession of the demised shop to the landlord on or before 16.05.2023.
(2) During the period of six months that the tenants remain in occupation, they will not sublet the shop, damage or disfigure it in any manner whatsoever.
49. In the event, an undertaking, as above directed, is not filed before the Prescribed Authority by the tenants within the time allowed or undertaking is violated, the release order shall become executable forthwith.
Order Date :- 17.11.2022 Anoop