Allahabad High Court
Hotel Vilas And Anr. vs Anil Roy And Ors. on 9 March, 2007
Equivalent citations: 2007(78)AWC2301
JUDGMENT S.U. Khan, J.
1. Heard learned Counsel for the parties.
2. This writ petition has been filed by the second lessees or transferees of lessor's right during continuance of tenancy of the original tenant Sampat Roy whose heirs are respondents in this writ petition. Petitioners may be described as transferees or assignees of the reversion which was reserved to the owner landlord after he executed the lease in favour of tenant Sampat Roy. Such an assignee is in the position of landlord as far as recovery of rent and ejectment is concerned in respect of the tenant who was earlier inducted by the original owner landlord. In this regard reference may be made to an authority of this Court in Munshi Lal Niyarta v. Lala Kedar Nath 1970 AWR 803. I have also considered this question in Ved Prakash Arya v. A.D.M., 2003 (2) ARC 797. In the said authority, I placed reliance upon several authorities including the authority of this Court in 1978 ALJ 759. A contrary view has been taken by the Calcutta High Court in Shambhoo Nath Misra v. Khaitan Consultant Limited . With great respect, I do not agree with the view of the Calcutta High Court. Moreover, an authority of this very court has got binding force in preference to the view taken by another High Court.
3. It is also important to note that this question has been decided in favour of the petitioners landlords by the lower appellate court however in the counter-affidavit filed in this writ petition correctness of the said view has not been assailed. Only oral arguments were raised in respect of the said point.
4. This writ petition arises out of release proceedings initiated by landlords/second lessees against tenant Sampat Roy since deceased and survived by respondents on the ground of bona fide need under Section 21 of U.P. Urban Buildings (Regulation of Letting Rent and Eviction) Act, 1972 (hereinafter referred to as "Act"). Release application was registered as P.A. case No. 13 of 1998 and was allowed by the prescribed authority under the Act/II Additional Civil Judge (S.D.), Allahabad on 8.8.2000. Against the said judgment and order original tenant Sampat Roy filed R.C. Appeal No. 151 of 2000. During pendency of appeal Sampat Roy died and was substituted by the legal representatives who are respondents in this writ petition. Additional District Judge court No. 3 Allahabad/appellate court through judgment and order dated 23.3.2005. allowed the appeal and set-aside the eviction order passed by the prescribed authority. This writ petition is directed against the said appellate order.
5. The lease of reversion was executed by the original owner landlord Sri Gyan Prakash in favour of M/s. Hotel Vilas a partnership firm at that time in which sons or daughters in-law of Sri Gyan Prakash were partners. Sri Gyan Prakash left behind three sons, Yasharth, Purusharth and Parmarth. When release application was filed wives of. Purusharth and Yasharth, i.e., Smt. Ranjana and Smt. Nutan alongwith Parmarth the third son of late Sri Gyan Prakash were partners of the firm M/s. Hotel Vilas. They sued in the capacity of landlords/second lessees/ assignees of the right of reversion of the owner landlord. During pendency of appeal partition took place among the partners and partnership was annulled and entire assets of the partnership firm were given to Smt. Nutan wife of Sri Yasharth who is petitioner No. 2 in this writ petition. M/s. Hotel Vilas is now a trade name and its proprietor is Smt. Nutan. This arrangement has been accepted by the heirs of the original owner landlord. late Sri Gyan Prakash (incidentally the major heirs of late Gyan Prakash are his three sons). Rent was also paid by the tenants to Hotel Vilas. The appellate court decided the said question in favour of the landlord and held that M/s. Hotel Vilas a proprietorship of Smt. Nutan and Smt. Nutan became the landlord of the tenants after family partition in 2001 (24.7.2001 and 8.9.2001). As stated earlier, in the counter-affidavit absolutely nothing has been said against the said finding. Even otherwise in my opinion such an arrangement among different persons belonging to the set of second lessees is quite permissible. The heirs of the owner have got no objection hence tenants cannot say anything against that.
6. The property in dispute is a big shop consisting of three shops privately numbered as 3, 4 and 5. Map is on page 97 of the writ petition dimensional correctness of which is substantially admitted to the tenants also. There is no partition wall in between the three shops hence it is actually one big shop dimensions of which are about 33 feet frontage and 23 feet depth. The case of the landlords was that just adjacent to the shop in dispute they have got their Hotel by the name of Hotel Vilas which contains about 30 rooms and they proposed to extend the hotel by adding certain facilities and by providing better and bigger lobby cum reception. They specifically stated that they required the shop in dispute for opening a fast food restaurant in its 2/3 portion towards south and they required 1/3 portion of the shop in dispute towards north for establishing/extending lobby cum reception alongwith adjoining accommodation, which was in their possession. The landlords further stated that towards south of the shop in dispute there were two shops total frontage of which was about 22 feet and tenant of the said shops Sri N. N. Sharma had promised to vacate the same and in the said two shops landlords intended to open/build a kitchen for fast food restaurant. All these things are mentioned in the map on page 97. The prescribed authority found the need of the landlord to be quite genuine and bona fide. However appellate court held that the need was not bona fide. This question was discussed by the appellate court under issue / point No. 2. The appellate court mainly held that other accommodation available to the landlords could satisfy their need. Appellate court further found that in 1995 a portion was given to one Smt. Gita Agarwal for opening Bridges restaurant. (In fact the restaurant was opened by Smt. Shivani wife of Parmarth and Smt. Gita Agarwal, para 17 of counter-affidavit filed by respondents 1 to 5). Appellate court also held that some other adjoining shops had also been vacated by their tenants. Entire accommodation has been shown in the map on page 97. The portion which was occupied by Bridges restaurant has been shown as dining hall and it is on the back side of hotel. The shops No. 9.10 and 11 are being used as health centre of the hotel. Incidentally one of the tenants is also member of this health centre. Shop No. 8 has been shown to be Accounts office.
7. The need for opening fast food restaurant and for having a good attractive reception cum lobby cannot be said to be not bona fide. Hotel business is expanding rapidly particularly in fast growing cities like Allahabad. Naturally there is competition also. Hotel which provides better facilities is expected to attract more and better customers (paying capacity wise). Fast food is great craze among the younger people now a days. (Even though older people may dump that as junk food). In this regard Allahabad is also catching up with other big cities. Other accommodations available. with the landlords are being used by them for other purposes connected with hotel business and the said use cannot be said to be redundant, superfluous or mere pretension to evict the tenants respondents. The Supreme Court in S. Purushotham and Co. Limited v. V.P. Lal and Ors. , has held that even the need to extend business in other cities is also bona fide. In my opinion therefore the need is fully bona fide. Lower appellate court committed an error of law in holding otherwise. No other accommodation is in fact available to the landlord for extension of lobby or establishing fast food restaurant. In fact appellate court undertook an exercise to ascertain as to how else landlord could satisfy his need. This is not permissible under law as held by the Supreme Court in Sarla Ahuja v. United Insurance Co. .
8. In respect of comparative hardship, it is admitted to the tenants that at a very short distance from the shop in dispute they have got a good commercial accommodation which also faces a road (Elgin Road). The shop in dispute is situate on Sardar Patel Marg which runs through main Civil Lines market. In respect of other shop available to the tenants they stated that it was being used as workshop by them. The tenants vehemently argued before the courts below as well as this Court that the shop in dispute was situate in the centre of civil lines market hence no alternative accommodation could be as good as shop in dispute. In the back drop of this argument the rent payable by the tenant, i.e., about Rs. 800 per month appears to be utterly negligible. Apart from it, landlord also offered alternative accommodation to the tenant at Kanpur Road at about 200 metres from the shop in dispute whose number is 58A, Kanpur road. However tenant did not accept that appellate court also considered the fact that after filing release application no effort was made by the tenants to search alternative accommodation. The Supreme Court in Saitnagjee Purshottam and Co. Ltd. v. Vimalabai Prabhulal and Ors. , has held that even the need to extend business in other cities is also bona fide. Supreme Court in B. C. Bhutada v. G.R. Mundada , has also held that such effort should be made by the tenant otherwise balance of hardship may be decided against the tenant.
9. Appellate court decided the question of comparative hardship in favour of the landlord and categorically held that if building in dispute is not released then landlord would suffer greater hardship while tenants will not face greater hardship in case release application was allowed, However, as lower appellate court under issue/point No. 2 had decided that landlord had no bona fide need hence it allowed the appeal and set-aside the judgment and order of the prescribed authority.
10. Learned Counsel for the tenants has vehemently argued that even the finding of comparative hardship recorded by the appellate court as well as prescribed authority are erroneous in law. I do not agree with this assertion of the tenants. These findings are perfectly in accordance with law. The tenants have got alternative accommodation at a distance of about 150 metres from the shop in dispute which is also situate on a road. Landlord offered alternative accommodation to the tenant and tenant did not make any effort to purchase or to take on rent another commercial accommodation. Tenant had asserted that the shop in dispute is situate in one of the best commercial areas of the city. They are paying negligible rent hence they must have saved lot of money. Money saved is money earned. They could have utilised this money for purchasing or taking on good rent another commercial accommodation which they did not do. It has also come on record that the business of the tenants has diminished and earlier they were having agency of Godrej which is no more with them.
11. In the earlier part of this judgment I have held that the need of the landlord is quite bona fide. Writ petition as well as release application therefore deserve to be allowed. However it is the duty of the Court to see as to whether it is possible to satisfy the landlord's need by releasing part of the accommodation in dispute. Neither before the prescribed authority nor before the appellate court nor before this Court any of the parties raised this question. It appears that both landlords as well as tenants were afraid to raise this point lest it might be accepted. However, even if it is not raised by any of the parties still if the tenanted accommodation is quite big then court itself may consider the question of partial release. Supreme Court in R.C. Kesarvani v. Dwarika Prasad 2002 (2) ARC 298, has held that High Court itself can decide the question of partial release in order to adjust the equities in between the landlord and tenant as remand for the said purpose would entail delay. In the said authority also property in dispute was shop. In this regard reference may also be made to Smt. R.R. Mehrotra v. A.D.J., 1980 ARC 311 (SC).
12. In the map annexed on page 97, it is shown that towards south of the shop in dispute kitchen for fast food restaurant would be established. The area of the proposed kitchen is same as the area for proposed fast food restaurant. The kitchen is bound to be smaller than the dining room or restaurant where food is served after cooking in the said kitchen. It is very unusual to have kitchen of the same size as that of dining room or restaurant.
13. Accordingly release application is allowed in part. Shop Nos. 3 and 5 are released so that shop No. 5 may be used as part of the reception cum lobby and shop No. 3 alongwith some area of shop Nos. 1 and 2 where kitchen is proposed may be used as fast food restaurant and the remaining portion of shop Nos. 1 and 2 may be used as Kitchen for the fast food restaurant. Tenants have themselves pleaded that the shop in dispute is situate in the heart of one of the most important markets of the city. In view of this assertion rent of shop No. 4 left in the tenancy of the tenants, dimensions of which are 23 feet by 10 feet 6 inch shall not be less than several thousands rupees per month by today's standard.
14. I have held in Khursheeda v. A.D.J. 2004 (2) ARC 64 : 2004 (1) AWC 851 and H.M. Kitchlu v. A.D.J., 2004 (2) ARC 652, that while granting relief against eviction to the tenant in respect of building covered by Rent Control Act or while maintaining the said relief already granted by the court below writ court is empowered to enhance the rent to a reasonable extent.
15. Accordingly it is directed that with effect from April 2007 onwards tenant shall pay rent of the shop No. 4 to the landlord petitioner @ Rs. 2,000 per month inclusive of water tax etc. No further amount shall be payable by the tenant.
16. Tenants are granted four months time to vacate the shops No. 3 and 5. Walls must be constructed by the landlord to separate shop No. 4 from shop Nos. 3 and 5 at the time of vacation of shop Nos. 3 and 5 by the tenant width of the walls shall be in the released portion so that shop left in the tenancy of the respondents has complete width of 10' and 6". For this period of four months tenants shall pay Rs. 16,000 rent/damages for use and occupation @ Rs. 4,000 per month only for shop Nos. 3 and 5 (excluding the rent of Rs. 2,000 required to be paid by the tenant in respect of shop No. 4 with effect from April, 2007). The rent of four months amounting to Rs. 16,000 shall be deposited either before the prescribed authority for immediate payment to the landlord within one month or paid to the landlord through cheque or draft or against receipt. Within one month tenants shall also file undertaking before the prescribed authority to the effect that they would vacate shop Nos. 3 and 5 within four months from today.
17. In case of default in compliance of any of these conditions tenants-respondents shall be evicted through process of court after one month.
18. It is further directed that in case undertaking is not filed or Rs. 16.000 is not deposited within one month then tenants-respondents shall be liable to pay damages at the rate of Rs. 8,000 per month since after one month till the date of actual vacation for shop Nos. 3 and 5.
19. Similarly, if after filing the aforesaid undertaking and depositing Rs 16,000, shop Nos. 3 and 5 is not vacated on the expiry of four months then damages for use and occupation shall be payable at the rate of Rs. 8,000 per month since after four months till actual vacation for shop Nos. 3 and 5.
20. Writ petition is accordingly disposed of and order of the appellate court is modified accordingly.