Allahabad High Court
Raj Kumar Sharma vs Additional District Judge-Iii And Ors. on 22 May, 2007
Author: Prakash Krishna
Bench: Prakash Krishna
JUDGMENT Prakash Krishna, J.
1. The petitioner is a tenant of a shop situate at ground floor of house No. 32/119, Mani Ram Bagia of which Gokul Chand Tikka, the respondent No. 2 herein (since deceased) was the owner and landlord. The said shop was allotted to the petitioner in pursuance of allotment order passed by the Rent Control and Eviction Officer and the petitioner came in possession thereof w.e.f. 1st of April, 1996.
2. An application for release of the said shop was filed by the landlord on the ground that the shop is bona fidely required for his unemployed son Sanjai. The landlord has got two sons namely Sanjai and Ajai. It was pleaded in the release application that Sanjai is in a private service and his salary is not sufficient to discharge his financial obligation towards the family. The landlord who was serving in a State Bank of India also pleaded that he is going to retire from the service shortly and as such the shop is required for his need also. Another shop which was in possession of the landlord, therein his younger son Ajai is carrying on the business of general store. The said shop is 2-1/2' x 8' which is insufficient. It was also pleaded that the tenant is not carrying on any business in the disputed shop and does not require it. The tenant being a rich man can get any other shop.
3. The release application was contested on the grounds that the need of the landlord is not bona fide and genuine. Reference to earlier litigation between the parties was also made. It was submitted that the shop was allotted to the tenant on a monthly rent of Rs. 20 but the landlord demanded a premium of Rs. 35,000 which was paid by the petitioner but when he demanded the receipt for the said payment a dispute arose between the parties which led to the filing of the present release application. It was also pleaded by the tenant that the landlord has let out several shops to different tenants from time to time without obtaining allotment order and as such the need of the landlord is neither bona fide nor genuine.
4. The parties filed their respective affidavits in support of their cases. The prescribed authority rejected the release application on the finding that at the time of filing of the release application the landlord was still in service of State Bank of India. The elder son Sanjai was in the private service and the other son Ajai is already carrying on his business. On this premise the release application was rejected by the prescribed authority. The said order was challenged in appeal by the landlord filed under Section 22 of the Act, being Rent Appeal No. 1 of 2001 which has been allowed by the appellate court by the impugned order dated 4th of May, 2002. Hence, the present writ petition.
5. Shri K.L. Grover, the learned senior counsel for the petitioner submits that the appellate court has committed illegality in allowing the appeal, without setting aside the well considered findings recorded by the prescribed authority. He submits that the appellate authority has ignored the fact that the landlord has let out one shop to Satish and another shop to Manoj Kumar and as such the finding on the question of bona fide need is vitiated. Elaborating the argument, he pointed out that an application for appointment of Commissioner was filed to bring on record that Ajai has opened a shop in the name and style of M/s. Laxmi General Store but the said application was wrongly rejected. Lastly, he submits that during the pendency of the present writ petition, the landlord Gokul Chand Tikka has expired leaving behind two sons and a daughter. The sons are claiming the disputed property left by their father on the basis of Will. The sister Sujata Sharma wife of Mukesh Sharma is disputing the Will and has come forward with a case that there had been a family partition during the lifetime of late Gokul Chand Tikka and the disputed shop his fell in her share. Through Shri B.C. Naik, advocate, the sister has filed a counter-affidavit to the substitution application filed by the petitioner. On the basis of the said counter-affidavit filed by the sister namely Smt. Sujata Sharma. Shri Grover, senior advocate, submits that the present proceeding should be stayed till the question of title amongst the heirs of the deceased landlord, is settled.
6. In response, Shri K.K. Arora, the learned Counsel for the respondent-landlord supports the impugned order and submits that due to happening of subsequent events during the pendency of the appeal before the appellate court, the appellate court has rightly passed the release order in favour of the landlord. He pointed out that indisputably the landlord took voluntary retirement (V.R.S.) from the service. The another important factor which has taken place is that the service of Sanjai Kumar has been terminated by his employer on a 6th of June, 2001, resultahtly Sanjai is presently unemployed and unengaged person and therefore, his need for the disputed shop is bona fide and genuine. He also submits that the filing of counter-affidavit by the daughter of the deceased landlord supporting the case of the petitioner is of little consequence and has no bearing on the merits of the case inasmuch as indisputably the petitioner all through fought the litigation on existence of relationship of landlord and tenant between the parties. The claim, if any, of daughter of the deceased landlord is a claim at the most for a share in the estate left by the deceased landlord and it will not in any manner effect the relationship of landlord and tenant in between the petitioner and the sons of the deceased landlord.
7. I have given careful consideration to the respective submissions of the learned Counsel for the parties. Before proceeding further, a reference was made by Shri K.L. Grover, the learned senior counsel that earlier S.C.C. Suit No. 283 of 1998 was filed by the landlord be noted. The said suit was dismissed against which he informed that a revision is pending before the appropriate court. He submits that the filing of the release application is wholly mala fide inasmuch as the petitioner tenant demanded the receipt of payment of premium from the landlord which infuriated him and out of that the present release application was filed. It is difficult to accept the said submission. There is nothing on the record to show that a sum of Rs. 35,000 as claimed by the petitioner was paid to the landlord as premium. On the contrary, what I find from two Judgments is that the parties are related to each other. The case of the landlord is that he consented for allotment of disputed shop as the petitioner happens to be one of his relatives and at that time the shop in dispute was not so badly needed by him. According to the landlord the rent of shop is Rs. 200 per month but subsequently, the petitioner became dishonest and set-up the case that the shop was allotted on a monthly rent of Rs. 20. However, none of the courts below has recorded any finding on the rate of rent of the disputed shop nor the allotment order has been placed or referred before this Court. In absence of any material on record, the said submission of the petitioner's counsel is devoid of any substance. The shop in question is situate in city Kanpur, a metropolitan city, and it is difficult to believe that in such city rather in any city in Uttar Pradesh a shop will fetch Rs. 20 per month in the year 1996, when it was allotted.
8. The main plank of the argument of the petitioner is that the landlord has let out five shops during the period 1990-98 and. as such the finding of bona fide need is vitiated. The learned Counsel for the petitioner could refer Annexure-6 to the writ petition which is a rejoinder-affidavit of the petitioner in support thereof. Pointedly, a query was put to the learned Counsel to show the relevant paragraph or averment in the said affidavit from which it can be inferred that it was pleaded by the tenant-petitioner that the landlord has let out any shop in the recent past before filing the release application. The learned senior counsel could refer only paragraph 11 thereof. The said paragraph contains general allegation that had the need of the landlord been bona fide, the landlord would not have let out the shops to other tenants without obtaining the allotment order and letting them out on premium. It further states that in the disputed house one shop was let out to Satish Dixit by the landlord and the rent receipt is dated 30th of April, 2000 (Annexure-1 to that affidavit) and another shop was let out to one Vimal Kumar, the rent receipt in whose favour is dated 31st of May, 2000. The averments made in the paragraph 11 of the said rejoinder-affidavit are short of the allegation that the shops were let out to Satish Dixit and Vimal Kumar in the recent past.
9. An attempt was made to develop argument that since the receipts issued to these tenants were of the year 2000, therefore, it may be presumed that lettings took place in the year 2000. No such conclusion or inference can be drawn from the rent receipts of the year 2000 by any stretch of imagination. These rent receipts only show this much that the persons in whose favour these receipts stand were tenants for the period the rent receipts stand. Argument of the learned Counsel for the petitioner is that letting took place in the year 2000 itself is devoid of any substance.
10. Shri Arora rightly pointed out that during the pendency of the appeal certain developments took place. The service of Sanjai who was working in the Firm Goldee Massala was terminated on 6th of June, 2001. The other development which took place is that Gokul Chand. Tikka retired from service on 31st of March, 2001. In view of these subsequent developments which happened during the pendency of the appeal, need of the landlord for the disputed shop is fully established and it was rightly held so by the appellate court. When the release application was filed, the petitioner was an employee of the bank but he ceased to be so on account of the fact that he took voluntary retirement on 31st of March, 2001 and his son Sanjai who was earlier in service of Goldee Massala has become unemployed. The very basis of the order of the prescribed authority that the landlord was in the service of the State Bank of India and that Sanjai was in service of firm Goldee Massala to negative landlords plea for bona fide need ceases to exist on account of new development which took place during the pendency of the appeal.
11. The case of the respondent-landlord was that the petitioner is not carrying on business himself but has sub-let it to his relative (brother-in-law) namely Santosh Kumar. The sons of brought-in-law namely Vikas alias Dabbu is running the business in disputed shop under name and style of New Seema Agency.
12. In this connection, a reference can be made to the following cases of the Apex Court:
(1) Shiv Sarup Gupta v. Dr. Mahesh Chandra Gupta and (2) M.L. Prabhakar v. Rajiv Singhal 2001 (1) ARC 382 (SC), wherein it has been held that suitability of alternative accommodation have to be seen from the convenience of the landlord and his family members and on the basis of totality of the circumstances including their profession, vocation, style of living, habit and background. These observations made by the Apex Court are relevant for the purpose of the present case inasmuch as indisputably the other godown which is in occupation of the landlord is being utilised and is not lying vacant for his other son. It has also come on record that all the sons of landlord are income-tax payee and the tenant-respondent No. 2 in reply to the release application has buttressed this fact by taking a plea that the landlord has increased his business manifold. Thus, the requirement of kitchen and latrine for the family of Nawal Kishore, by any stretch of imagination, cannot be said to be fanciful or imaginary. These requirements are basic requirement of a human being, specially for such persons who are well placed in life and paying Income-tax.
13. Ragavendra Kumar v. Firm Prem Machinery and Company , is an authority for the proposition that the landlord is the best Judge of his own requirement for residential or commercial purpose and has complete freedom in the matter. In this authority the Apex Court has relied upon its earlier judgment in Prativa Devi v. T.V. Krishnan .
14. In Joginder Pal v. Naval Kishore Behal , the Apex Court with a reference to the provisions of East Punjab Urban Restriction Act, on the question of bona fide need, after surveying its earlier pronouncements, has held that the requirement of a major son and a coparcener in a joint Hindu family intending to start a business is the requirement of the landlord himself as was held in B. Balaiah v. Chandoor Lachaiah . The words "for his own use" must receive a wide, liberal and useful meaning rather than a strict or narrow construction. It has been further held that while casting its judicial verdict, the Court shall adopt a practical and meaningful approach guided by the realities of life.
In view of the above discussion, the finding recorded by appellate court on the question of bona fide need calls for no interference. It is based on relevant consideration and material on record.
15. Much emphasis was laid on the fact that an application for issuance of commission was filed before the appellate court but the appellate court has refused to issue the commission. A copy of the said application and affidavit have been annexed as Annexure-8 to the writ petition. A perusal of the said application shows this much that issuance of commission was prayed for on the plea that in shop No. 32/119, Maniram Bagiya, Kanpur, Ajai Tikka son of landlord has opened a shop in the name of Laxmi General Store. It was rightly pointed out by learned Counsel for the respondent that release in the present case was not sought for Ajal Tikka. The specific case of landlord, on the other hand, is that Ajai Tikka is carrying on general provisions business in a shop. The need set up was with regard to himself and his another son Sanjai who is unemployed and unengaged. No new accommodation came in possession of the respondent landlord during the pendency of the appeal nor any new business was opened by the unemployed son whose need was set up, i.e., with regard to Sanjai. The application for issuance of commission was filed apparently with an oblique motive to linger on the case and was rightly rejected.
16. The question of comparative hardship was not pressed by the learned Counsel for the petitioner. However, the appellate court has found that the petitioner tenant has not made any effort to findout an alternative accommodation. Therefore, it can be presumed that the tenant will not suffer greater hardship if the release application filed by the landlord is allowed, in view of the judgment of the Apex Court in the case of Bega Begum.
17. Shri K.L. Grover, the learned Counsel for the petitioner submits that since there is a dispute between the brothers and sisters on account of death of the original landlord, hearing of the present writ petition be stayed and this Court should await the decision of civil court in this regard. His submission is that in these proceedings question of heirship or succession of property cannot be decided. Reliance has been placed on a judgment of Apex Court in this regard in Vijai Lata Sharma v. Late Rajpal and Ors. 2004 (2) ARC 524. It is difficult to accept the said argument. The release application was contested by the petitioner on the footing that there was a relationship of landlord and tenant between the parties. It is not case of the petitioner that there was no relationship of landlord tenant in between the petitioner and Gokul Chand Tikka, respondent No. 2, the landlord. He died leaving behind him, widow, two sons, Sanjai Tikka and Ajai Tikka and one daughter Smt. Sujata Sharma. The two sons claimed disputed property on the basis of some Will in their favour by their father, to the exclusion of Smt. Sujata Sharma, their sister. The said fact has no bearing to the controversy involved in the present writ petition. The fact remains that estate left by Gokul Chand Tikka (deceased) is represented and the release order is for the benefit of the estate of deceased. In the present case, there is no dispute that Sanjai Tikka and Ajai Tikka are not heirs and legal representative of Gokul Chand Tikka (deceased).
The aforesaid contention is, therefore, meritless.
18. None of the parties pressed any other point.
19. In view of the above discussion, there is no merit in the writ petition. The writ petition is dismissed. Stay order is vacated. Time to vacate the disputed premises is granted upto 30th of August, 2007, subject to filing of an undertaking on affidavit before the prescribed authority by the petitioner that he will vacate the disputed shop on or before 30th of August, 2007. In case of failure to file the said undertaking on affidavit, the landlord shall be free to execute the release order.