Allahabad High Court
Manoj Rastogi vs Manoj Kumar on 16 August, 2018
Equivalent citations: AIRONLINE 2018 ALL 3562
Author: Vivek Kumar Birla
Bench: Vivek Kumar Birla
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR RESERVED Civil Misc. Writ Petition No.14542 of 2018 Manoj Rastogi Vs. Manoj Kumar ***** Hon.Vivek Kumar Birla, J.
Heard Sri Rahul Sahai, learned counsel for the petitioner and Sri Kshitij Shailendra, learned appearing for the respondent.
Counter and rejoinder affidavits have been exchanged between the parties and with the consent of the learned counsel for the parties the case is being disposed of finally at this stage.
The present writ petition has been filed for quashing the impugned judgment and order dated 10.5.2018, passed by the Additional District Judge/Special Judge (E.C.Act), Budaun in Rent Appeal No.10 of 2015, Manoj Kumar vs. Manoj Rastogi.
The release application filed by the landlord-respondent on the ground of his personal need as well as on the need of his son was rejected by the learned prescribed authority vide judgment and order dated 28.2.2015 holding that the need of the landlord is not bonafide and the comparative hardship is also not in favour of the landlord.
The appeal filed by the landlord-respondent herein was allowed by the lower appellate court by the impugned judgment dated 10.5.2018 by upholding bonafide need of the landlord-respondent and his son and the comparative hardship was also found in favour of the landlord.
Relevant factual background of this case is that the landlord-respondent filed a release application seeking release of shop No.12, Baburam Market, Budaun on the ground of his personal need and the need of for his son, who is handicapped. It was asserted that the tenant was inducted in the shop about 18-19 years back when the landlord was running a P.C.O. and was not in need of the shop and at that time he had no child. The landlord earlier had 5 shops under the tenancy since the time of his father and the landlord has no vacant shop in Babu Ram Market, Budaun. It has been specifically stated that he is running his business on a tenanted shop in Mandi Chowk, Budaun. He filed release application in the year 2003 against Jitendra Kumar and S.C.C. Suit against Abdul Shakoor in 2006. However, he could not persue the litigation for financial reasons. In the year 2003 the residential house of the petitioner collapsed due to excessive rain and therefore, he was compelled to sell off the shop to Jitendra Kumar. The other suit for rent and eviction filed against Abdul Shakoor was also could not be concluded in his favour and therefore, since he has no financial resources, has no option but to sell off the shop to Abdul Shakoor. It was further asserted that since in the last few years due to mobile phones his P.C.O. business has come to halt and, therefore, he has started the business of electric goods in the rented shop, which was not running well as the tenanted shop is 5.5 feet x 8 feet only and is not centrally located. It was further stated that tenant and his father both are tenant in two adjoining shops belonging to the landlord and, therefore, if the shop in possession of the tenant is released he will have no hardship as he can easily shift to the other adjoining shop which is in his father possession.
The trial court found that since the landlord-respondent herein had sold his two shops to Jitendra Kumar and Mohd. Shakoor and he also has a space above the shop of Amar Nath wherein only walls have been raised, therefore, his need is not bonafide. The comparative hardship was also decided in favour of the tenant on the ground that the landlord has a rented shop in his possession and he has also has a space available above the shop of Amar Nath.
The appeal was allowed after going through the entire evidence in detail. A perusal of the lower appellate court order indicates that large number of documentary evidence apart from the oral evidence were placed before the lower appellate court.
Three issues, on bonafide need; comparative hardship, and relief, if any, were framed by the lower appellate court.
While deciding issue no.1, it was found by the lower appellate court that son of the landlord Gaurav is 50% disabled person. His date of birth is 16.1.1993 and at the time of filing of the release application in the year 2012, he had attained the age of majority. It was also found that Gaurav was only Inter pass and is unemployed handicapped. It was further found that the landlord himself is doing business on a rented shop and has no shop of his own for running the business. The size of his rented shop was about 5.6 Ft. x 8 Ft. which is very small and the same is located near the whole sale medicine shops, a place which is not fit for business of electrical goods. It was also found that Gaurav is not capable of doing any business independently could not be established by the tenant-respondent. It was further found that release application No.92/2000 was filed against Jitendra Kumar on personal need and at that point of time Gaurav was aged about only 7 years. Ultimately this case was compromised vide compromise deed dated 23.2.2004 and the shop was ultimately sold to Jitendra Kumar for the specific reason that the residential house of the landlord has collapsed and therefore, money is needed for construction of the same.
In so far as the litigation with Abdul Shakoor is concerned and sale of the shop to him is concerned, it was found that S.C.C. No.08 of 2006 was filed by the landlord Manoj Kumar against Abdul Shakoor and since the landlord could not get the vacant possession of the same, therefore, ultimately the same was sold off to Abdul Shakoor itself in the year 2010. It was noticed that even in the year 2010 Gaurav was aged bout 17 years and was not major. In so far as the S.C.C. Suit No.22 of 1990, filed against Amar Nath is concerned, it was found that the property in dispute was a residential accommodation and the tenant Amar Nath who had appeared as PW-1 had himself stated that the disputed property which consist of one room, one verandah, one small courtyard (sahan), latrine and bathroom and therefore, it was a residential accommodation and cannot be considered to be a space available for commercial activity. Under such circumstances, it was found that the need of the landlord and his son is bonafide. On comparative hardship, it was found by the lower appellate court that father of the tenant-petitioner is admittedly a tenant in the adjoining shop which too belongs to the present landlord and therefore, he can shift to that shop only. It was admitted by the tenant that in between these two shops there is a door and therefore, it was found that the tenant-petitioner herein can shift to the shop of his father. It was further found that the petitioner had also acquired two shops in Gandhi Netra Chikitsalaya belonging to District Eye Relief Society and a documentary evidence to this effect was placed on record, therefore, it was also found that the tenant has never made any effort to search out any alternative accommodation and, therefore, it was found that the comparative hardship is against the tenant. Consequently, the appeal was allowed and the release application was also allowed.
Submission of the learned counsel for the petitioner is that the prescribed authority had found that the need of the landlord was not bonafide and the comparative hardship is also not in favour of the landlord. As already noticed, he pointed out that the landlord had sold off one shop to Jitendra Kumar and another shop to Abdul Shakoor and, therefore, it cannot be said that the need is bonaifide as had the need been bonafide there was no occasion for him to sell off the two shops. Submission, therefore, is that the finding of the lower court below is unwarranted and is liable to be set aside.
It was further submitted that above the shop of Amar Nath the petitioner has a space available where only walls have been raised and, therefore, this space is available to the landlord where after building the same, he can establish a business for his own son. Submission is that, lower appellate court has casually set aside the finding of the prescribed authority and this is nothing but an effort to simply dispossess the tenant from the shop in dispute as the landlord is in a habit of getting the shop vacated and subsequently he sell off the accommodation as he had done previously. He submits that his son is a disabled person and he is not in a position to do business and, therefore, the need set up on his part is artificially created by the landlord. Submission, therefore, is that once the issue of bonafide need is decided against the landlord, the issue of comparative hardship fades away and looses its all efficacy.
Per contra, submission of the learned counsel appearing for the respondents pointed out that in the year 2000 when the litigation was initiated against Jitendra Kumar, his son was only aged about 7 years. Even in the year 2010 he was not major. Apart from that it is mentioned in the sale deed executed in favour of Jintendra Kumar that because of urgent need of the money for reconstruction of the house which had fallen down in rains, the shop is being sold. He further submitted that in the year 2010 the shop was sold to Abdul Shakoor only because of the reason that inspite of the long litigation the landlord was not able to get vacant possession of the shop. The learned counsel also highlighted the fact that it could not be imagined in the year 2002 or even while the proceedings were initiated against Abdul Shakoor in the year 2010 that subsequently after a gap of more than 6 year, he would file any release application. He further submits that even when this shop was sold to Abdul Shakoor he was in extreme financial difficulty of money, which was required for treatment of his son Gaurav. In this regard documentary evidence has been placed on record to indicate that his son Gaurav was constantly under treatment and had undergone corrective surgery, which needed huge amount of money. Submission, therefore, is that the sale of two shops on earlier occasion was because of the compelling circumstances and had taken place long back and the same cannot be considered for rejecting the release application and, therefore, the lower appellate court had rightly allowed the release application. He further pointed out that the tenant cannot guide the landlord to raise construction above the house of the landlord for setting up business. Submission, therefore, is that at the time of filing of the release application admittedly there is no shop available to the landlord in vacant position and it is also not in dispute that the landlord is carrying on his business in a rented shop which is not suitably located. He further submitted that although his son is disabled and he suffers from Polio, he has every right to have his own business and on this ground his son cannot be non-suited for release of the shop. It was further pointed out that admittedly the tenant-petitioner herein is in possession of 4 shops, out of which 2 shops belongs to the present landlord, out of which in one adjoining shop his father is doing business and two other shops are admittedly existing in Gandhi Netra Chikitsalaya. Submission, therefore, is that more than sufficient accommodation available to the landlord and the release application has been rightly allowed.
Learned counsel for the respondents, has placed reliance upon the judgment of this Court in Mohd. Islam vs. Additional District Judge,Jhansi and others AIR 2012 (30) LCD 1746 contending that in case the shops are sold to meet the house hold expenses in the medical treatment of landlord's wife, it could not be said that the sale of the shop is not genuine.
I have considered the rival submission and perused the record.
From the perusal of the judgment of the appellate court and the submission made by the learned counsel for the parties, the admitted position on facts needs to be noted. This Court is of the opinion that the lower appellate court was right in holding that the sale of the two shops in favour of Jitendra Kumar and Abdul Shakoor against whom legal proceedings were initiated in the year 2000 and 2006 and these two shops were sold under the compelling circumstances are based on documentary evidence on record and this Court finds that this finding is based on cogent reasons and there is no perversity and illegality in the finding so as to interference of this Court.
In so far as the accommodation with the tenant-petitioner is concerned, admittedly one adjoining shop belonging to the landlord is in possession of the father of the tenant-petitioner herein and is thus, available to the tenant-petitioner where he can easily shift. Apart from that it is also not in dispute that two other shops are also in possession of the tenant in Gandhi Netra Chkitsalaya. This Court has also noticed that the tenant has purchased a small piece of land, which he ultimately sold off during the pendency of the litigation, was of such a size which indicates that it was purchased for commercial purposes. Therefore, I find that the finding recorded by the lower appellate court while holding the comparative hardship in favour of the landlord are perfectly just and legal and are supported by admitted position and documentary evidence on record and warrants no interference.
However, before parting with the case, this Court would also like to discuss one of the arguments of learned counsel for the petitioner in detail that the son of the landlord is a disabled person and his need cannot be said to be bonafide as he is not in a position to run his business.
In reply to the aforesaid contention it was pointed out by the learned counsel for the respondent that son of the landlord is 50% disabled and suffers from Polio. Several corrective surgeries have been done with huge expenses and is now in a position to establish his own business, may be with some aid or help.
I find that the argument that a disabled person should be held as 100% incapable of doing any business, if accepted, would not be in the interest of the society. It appears that learned counsel for the petitioner was influenced by the term "disability" as taken in the workmen compensation case where even a particular kind of disability leaves a person 100 % incapable of doing a particular job. Even if we consider the disability it has different meaning and may have different implications in different cases and it is for this purpose an Act, namely, "The Persons With Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 has been enacted by the Parliament so that the person physically handicapped person can be established or rehabilitated in society and integration of such person into the social mainstream. Relevant extract of the aforesaid Act No.1 of 1996 is quoted as under:
" STATEMENT OF OBJECTS AND REASONS The meeting to launch the Asian and Pacific Decade of the Disabled Persons 1993-2002 convened by the Economic and Social Commission for Asian and Pacific Region, held at Beijing on 1st to 5th December, 1992, adopted the Proclamation on the Full Participation and Equality of People with Disabilities in the Asian and the Pacific Region. India is signatory to the said Proclamation and it is necessary to enact a suitable legislation to provide for the following:-
(i) to spell out the responsibility of the State towards the prevention of disabilities, protection of rights, provision of medical care, education, training, employment and rehabilitation of persons with disabilities;
(ii) to create barrier-free environment for persons with disabilities;
(iii) to remove any discrimination against persons with disabilities in the sharing of development benefits, vis-a-vis, non-disabled persons;
(iv) to counteract any situation of the abuse and the exploitation of persons with disabilities;
(v) to lay down a strategy for comprehensive development of programmes and services and equalisation of opportunities for persons with disabilities; and
(vi) to make special provision for the integration of persons with disabilities into the social mainstream.
2. Accordingly, it is proposed to provide inter alia for the constitution of Co-ordination Committees and Executive Committees at the Central and State levels to carry out the various functions assigned to them. Within the limits of their encomium capacity and development the appropriate Governments and the local authorities will have to undertake various measures for the prevention and early detection of disabilities, creation of barrier-free environment, provision fro rehabilitation services, etc. The Bill also provides for education, employment and vocational training, reservation in identified posts, research and manpower development, establishment of homes for persons with severe disabilities, etc. For effective implementation of the provisions of the Bill, appointment of the Chief Commissioner for persons with disabilities at the Central level and Commissioners for persons with disabilities at the State level clothed with powers to monitor the funds disbursed by the Central and State Governments and also to take steps to safeguard the rights of the persons with disabilities is also envisaged.
"(m) "institution for persons with disabilities" means an institution for the reception, care, protection, education, training, rehabilitation or any other service of persons with disabilities;
........
(o) "locomotor disability" means disability of the bones, joints or muscles leading to substantial restriction of the movement of the limbs or any form of cerebral palsy;
.........
(t) "person with advisability" means a person suffering from not less than forty per cent of any disability as certified by a medical authority:
.......
(w) "rehabilitation: refers to a process aimed at enabling persons with disabilities to reach and maintain their optimal, physical, sensory, intellectual, psychiatric or social functional levels;"
In service law, even if during service somebody suffers from a disability, which renders him incapable of performing any particular job, the law is that he should be accommodated in some other job, which he can discharge. A reservation is being given to such physically handicapped person in service.
It may be true that in case small percentage of disability is suffered he may not be at all in a position to carry on his work or job, for example, an employee under the Workmen Compensation Act may be treated to be 100% incapable of doing such particular job which he was discharging at the time of mishappening and, therefore, even though percentage of disability may be different but the compensation awarded is different and is considered not only on the basis of the percentage of disability but also on the basis of loss of his earning capacity.
I am conscious of this fact that one may find that reference to above noted Act No.1 of 1996 or to any other law or several law, is out of context, however, the above quoted statement of objects and the reason and definition given in the Act No.1 of 1996 are a definite indication that there must be an effort to establish or rehabilitated such person in the mainstream of the society.
Coming to the present case, in so far as establishment of business is concerned, it cannot be said that a physically handicapped person or who is 50% disabled because of Polio cannot run the business. He can employ help to assist him in the business as now a days, when the society has come forward to support such persons, we can easily find such persons working or carrying on their own business successfully. It may be true that physically disabled person may perform a job with lesser perfection and time taken for performing such job may be greater but his need, particularly in such Rent Control matters, cannot be brush aside by saying that need of such a person is not a bonafide need. If this is held otherwise, I am afraid that it will not only be contrary to the intention of the law but also would not be in the interest of the society at large.
I am conscious of the fact that the findings recorded by the court below are non-concurrent in nature. However, I find that the lower appellate court, which is the final court of facts has correctly appreciated the facts of the case on the basis of documentary evidence available on record and there is no perversity, illegality or jurisdictional error so as to attract warrant of interference of this Court under Article 226 of the Constitution of India.
The petition lacs merit and is accordingly, dismissed.
Having considered the facts and circumstances of the case, subject to filing of an undertaking by the petitioner-tenant before the Court below, it is provided that:
(1) The tenants-petitioner shall handover the peaceful possession of the premises in question to the landlord- opposite party on or before 31.10.2018.
(2) The tenant-petitioner shall file the undertaking before the Court below to the said effect within two weeks from the date of receipt of certified copy of this order;
(3) The tenant-petitioner shall pay entire decretal amount within a period of two months from the date of receipt of certified copy of this order;
(4) The tenant-petitioner shall pay damages @ Rs.2000/- per month by 07th day of every succeeding month and continue to deposit the same in the Court below till 31.10.2018 or till the date he vacates the premises, whichever is earlier and the landlord is at liberty to withdraw the said amount;
(5) In the undertaking the tenant-petitioner shall also state that he will not create any interest in favour of the third party in the premises in dispute;
(6) Subject to filing of the said undertaking, the tenant-petitioner shall not be evicted from the premises in question till the aforesaid period;
(7) It is made clear that in case of default of any of the conditions mentioned herein-above, the protection granted by this Court shall stand vacated automatically.
(8) In case the premises is not vacated as per the undertaking given by the petitioner, he shall also be liable for contempt.
There shall be no order as to costs.
Order Date :- 16.8.2018 AKJ