Allahabad High Court
Rajendra Kumar Agarwal vs Vi Addl. & Sessions Judge, Lucknow And ... on 2 December, 2013
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Judgment reserved on 22.11.2013. Date of delivery of judgment 02.12.2013. Court No. - 21 Case :- RENT CONTROL No. - 122 of 1995 Petitioner :- Rajendra Kumar Agarwal Respondent :- Vi Addl. & Sessions Judge, Lucknow And Others Counsel for Petitioner :- S.P. Shukla,Ram Karan Agarwal Counsel for Respondent :- C.S.C.,Uttam Kumar Srivastaa Hon'ble Sibghat Ullah Khan,J.
Heard Shri R.K. Agrawal, learned counsel for the petitioner landlord and Shri Uttam Kumar Srivastava learned counsel for the tenant respondent no. 3.
This writ petition arises out of eviction/ release proceedings initiated by the original petitioner land lord Rajendra Kumar Agarwal since deceased and survived by legal representative against the tenant respondent no. 3 Shri Prakash Kumar Maithi on the ground of bonafide need U/s 21 of U.P. Act No. 13 of 1972 in the form of P.A. Case No. 24 of 1985 Rajendra Kumar Agrawal Vs. Prakash Kumar Maithi. The property in dispute is commercial in nature dimensions of which are 18x20 Feet. It is situate on main road. According to the land lord the accommodation in dispute is in the form of three shops. Prescribed authority/ IInd Additional Civil Judge, Lucknow allowed the release application in part through judgment and order dated 12.02.1990 and released one of the shops bearing no. 4 in favour of the landlord. Against the said order both the parties filed appeals being Rent appeal no. 39 and 52 both of 1990. 6th A.D.J., Lucknow holding that the accommodation in dispute was only one shop, having three doors allowed the appeal of the tenant and dismissed the appeal of the landlord on 31.05.1995. The result of the judgment of the appeal is that landlord's release application stands dismissed. This writ petition is directed against the order of the appellate court.
Rate of rent is Rs. 35/- per month. Tenancy is continuing since 1931 i.e. for 82 years.
The need set up in the release application was for Vipin Kumar Agarwal one of the sons of the landlord. Vipin Kumar Agarwal is now petitioner no. ½. Landlord pleaded that on the first floor he was residing alongwith his family and on the ground floor shop (s) in dispute were situate and apart from that some residential portion room was also there. It was also stated that Vipin Kumar Agarwal was getting technical education and was not employed anywhere. Lower Appellate Court held that at the back portion of the accommodation in dispute Vipin Kumar Agrawal was running the business of photostat coping and he was also teaching typing from there. This fact was admitted by the learned counsel for the landlord petitioner as is mentioned in the order dated 22.11.2013 passed on the order sheet which is quoted below :
"Heard Sri R.K. Agarwal, learned counsel for petitioner landlord and Uttam Kumar Srivastava, learned counsel for tenant respondent.
Judgment reserved.
The dimensions of the accommodation in dispute are 20 feet by 18 feet. One of the disputes is that whether it is one shop as stated by the tenant or these are three shops as stated by the landlord. Learned counsel for both the parties state that on the back side of the accommodation in dispute, the son of the landlord for whose need release application was filed is running business of photostat and there typing is also taught.
On inquiry from court, learned counsel for tenant respondent states that in case matter is decided in favour of the tenant, tenant is ready to enhance the rent to a reasonable extent, which may be determined by the court."
In the shop in dispute tenant is carrying business of tailoring and selling medicines. The shop in dispute opens on the main road.
If due to non availability of proper accommodation the landlord or one of his sons starts business in a make shift, less suitable accommodation, it does not mean that the need stands fully satisfied. It has been held by the Supreme Court in Chandrika Prasad Vs. Umesh Kumar Verma A.I.R. 2002 Supreme Court 108 that the availability of less suitable accommodation is no ground to reject the release application for a more suitable accommodation. In the said case release was sought for establishing Clinic for a Doctor in a building situate on main road. The Supreme Court held that the availability of an accommodation away from the main road was no ground for rejecting the release application. In this regard reference may also be made to G.C. Kapoor Vs. N.K. Bhasin and others A.I.R. 2002, Supreme Court 200 where landlord's son who wanted to start computer business was holding license on the date of application which was cancelled during the pendency of the litigation. Still the Supreme Court reversing the orders of all three courts below, allowed the release application and held the need to be bonafide. Under Rule 16 (2) (d) of the Rules framed under U.P. Act no. 13 of 1972 having technical education is an additional ground for release. In this regard reference may also be made to Shushila Vs. A.D.J. reported in A.I.R. 2003, Supreme Court, 780. In Sarla Ahuja Vs. United India Insurance Company Limited, AIR 1999 S.C. 100 it has been held that landlord is best judge to decide the suitability of the accommodation for him .
Accordingly the view of the appellate Court that there was not need of the land lord is patently erroneous in law.
As far as comparative hardship is concerned, tenant did not show that he made any efforts to search alternative accommodation after filing of the release application. In view of the Supreme Court authority reported in B.C.Bhutada Vs. G.R. Mundada, A.I.R. 2003, Supreme Court 2713, this dealts the balances of hardship against the tenant. Tenancy is continuing for more than 80 years. Rent is negligible. Tenant is carrying on two business from the sop in dispute. Accordingly he must be in a position either to purchase or atleast to take on rent another accommodation.
Accordingly the finding of the Lower Appellate Court on the question of comparative hardship is also erroneous in law.
The writ petition is therefore, allowed. Both the impugned orders are set aside. Release application of the landlord is allowed in toto.
Tenant-respondent is granted six months' time to vacate provided that:-
1. Within one month from today tenant files an undertaking before the P.A. to the effect that on or before the expiry of aforesaid period of six months' he will willingly vacate and handover possession of the property in dispute to the landlord-petitioner.
2. For this period of six months', which has been granted to the tenant-petitioner to vacate, he is required to pay Rs.6000/-( at the rate of Rs.1000/- per month) as rent/damages for use and occupation. This amount shall also be deposited within one month before the P.A. and shall immediately be paid to the landlord-petitioner.
In case of default in compliance of any of these conditions tenant-respondent shall be evicted through process of Court after one month. It is further directed that in case undertaking is not filed or Rs.6000/- are not deposited within one month then tenant-petitioner shall be liable to pay damages at the rate of Rs.2000/- per month since after one month till the date of actual vacation.
Similarly, if after filing the aforesaid undertaking and depositing Rs.6000/- the house in dispute is not vacated on the expiry of six months' then damages for use and occupation shall be payable at the rate of Rs.2000/- per month since after six months' till actual vacation. It is needless to add that this direction is in addition to the right of the landlord to file contempt petition for violation of undertaking and initiate execution proceedings u/s 23 of the Act.
Order Date :- 02 .12.2013 Deepak