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RAGHUVEER SINGH SAINI versus BRIJ MOHAN GUPTA

High Court of Judicature at Allahabad

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Raghuveer Singh Saini v. Brij Mohan Gupta - WRIT - A No. 21361 of 2002 [2006] RD-AH 20236 (29 November 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Hon'ble Rakesh Tiwari, J

Heard counsel for the parties and perused the record.

This writ petition has been filed challenging the validity and correctness of judgment dated 24.4.2002 (Annexure 9 to the writ petition) passed by the Additional District Judge, Court no. 12, Meerut in Misc. Appeal no.103 90 of 2001.

The facts giving rise to the instant writ petition are that respondent no. 2 is the owner and landlord of shop no. 2 (old no. 5) situate near Baghpat Gate, Meerut which was given on a monthly rent of Rs.150/- to the petitioner sometime in 1972.  In 1996, the rent of the shop, in dispute, was enhanced to Rs.225/- per month.

In January, 2000, respondent-landlord filed a release application under Section under Section 21(1)(a) of the U.P Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as ''the Act no. XIII of 1972') for the release of the shop, in dispute in his favour on the ground that the same was genuinely and bona fidely needed  for establishing his elder son- Sri Nitin Bansal in business.

The release application was filed on the grounds, inter alia, that his elder son Sri Nitin Bansal was unemployed; that the younger son was studying in B.Com IInd year; that the tenant owns his own house built in about 200 square meters area having three shops.  One of the shops was occupied by Sri Raja Lal, which was vacated by order of the Prescribed Authority and that the shop in dispute was required for establishing both hos him unemployed sons in business. It was also averred in the release application that the tenant had occupied the shop, in dispute, with a mala fide intention to compel the landlord to part with extraneous consideration for vacating the shop by the tenant and that for want of suitable shop for carrying on business by his elder son, he could not be married.  

The case was contested by the petitioner-tenant denying the plaint allegations on the ground that the need of the landlord was not genuine and the release application had been filed with an ulterior motive of enhancement of the rent.  He further alleged that he is an Ayurvedic doctor and has been carrying on his practice from the shop, in dispute, for the last about 30 years.  He has earned goodwill and reputation in the locality and in case he is evicted from the shop, in dispute, he will suffer irreparable loss and injury. He averred that the landlord had neither given the dimensions of the shop, in dispute nor had filed any map, as such, the release application was liable to be rejected.

The tenant claimed inter alia, that the shop, in dispute, is 8 ft wide and 15 ft. in depth; that the applicant himself is engaged in business of manufacturing and selling of Atta Chakkis, Masala Chakkis and other machineries on a very large scale  with his son Sri Nitin Bansan for whose need the release application was filed. He admitted that he has a single floor residential accommodation on Sharda Road, Meerut, which is constructed on about 200 sq. metres area. The front portion is nearly 18 ft. wide and the portion is very deep which is not in a square position. He has a very big family comprising of himself, wife, two sons, daughters-in-law and grand children. The tenant also admitted in his written statement that there are two shops in his residential accommodation.  In one of the shops, his son Sri Hanskumar is carrying on his business of repair and sale of televisions and recording and sale of audio visual cassettes.

The release appliation moved by the respondent-landlord was dismissed vide judgment and order dated 6.2.2000 passed by the Prescribed Authority holding that there were two shops at the ground floor of house no. 59 (new no. 64), Kishanpuri, Meerut- one in the tenancy of Sri Rakesh Kumar and the other in the tenancy of Sri Ashok Kumar; that there is epecific allegation that respective tenants have vacated both the shops; that the landlord by removing the intervening wall has converted the two shps into one shop. An application was moved before the Trade Tax Officer that the aforesaid shops have been converted into ''Godown', which shows that the intention in moving the release application was mala fide and that the landlord did not offer alternate accommodation to the tenant at 59 Krishnapuri, Meerut.

Aggrieved, the respondent-landlord preferred Rent Control Appeal no. 103 of 2001, which has been allowed by the appellate Court vide the impugned judgment and order dated 24.4.2002.

Counsel for the petitioner assailed the impugned judgment and order dated 24.4.2002 passed by the appellate Court on the following grounds :-

1. that the release application was based on artificial scarcity; his requirement is not bona fide and genuine and comparative hardship is likely to be caused to the petitioner than the landlord in case the shop, in dispute, is released in favour of the landlord;

2. that it is clearly established by the second Supplementary Affidavit filed by the petitioner that Sri Sachin Bansal, younger son of the landlord is employed in Bangalor on a monthly salary of Rs.40,000/-.

3. that size of the shop, in diapute, is only 8'x15', which is not sufficient to cater the need of the landlord;

4. that the appellate Court has not taken into consideration the affidavits (paper nos. 15-C and 27-C) of the tenant-petitioner;

5. that the tenant-petitioner specifically asserted that he does not have any alternate shop and the landlord has not offered him shop available in house no. 59 Smith Ganj, Meerut, which had been vacated by Sri Rakesh Kumar and Sri Ashok Kumar;

6. that the landlord has got 4 rooms vacated by S/Sri Padam Prakash and Kailash Chand in which he is doing manufacturing business after having 5 kilowatt electricity connection;

7. that the landlord has got a shop at the first floor of the disputed shop, which was vacated from a tailor;

8. that the landlord has also got 22'x20' area of vacant land in the shape of tinshed which can be used for his business;

9. that the landlord is big industrialist and has no bona fide need of the shop, in dispute;

10. that the appellate Court has erroneously directed the tenant to pay two years' rent to the landlord, which is against the provisions of law and

11. that the tenant-petitioner is Ayurvedic doctor and carrying on his practice from the shop in dispute ever since 1972, as such, is entitled to the benefit of Rule 16(2) of the Rules framed under the Act No. XIII of 1972 provided that greater the period since when the tenant has been carrying on business, the less justification for allowing the application for release.

Per contra, counsel for the respondents vehemently urged that the marriage of the elder son of the landlord could not be solemnized for want of suitable shop for business and the landlord is in dire need of the shop, in dispute. He urged that the petitioner-tenant is having alternate accommodation, in vacant state and there is no justified cause to retain in the shop, in dispute. He submitted that the appellate Court has dealt with all these aspects and only thereafter has rightly held that the need of the landlord is genuine and bona fide.

As regards ''goodwill', counsel for the respondents urged that the petitioner is doctor by profession and if has earned goodwill, his patients will certainly and authomatically contact him at any place in the city of Meerut.  

On a query by the Court, the counsel for the petitioner frankly conceded availability of alternative accommodation available to him in his own house but contended that since the petitioner has earned goodwill, therefore, comparative hardship tilts in his favour.  

All the aforesaid grounds, on which, counsel for the petitioner has assailed the impugned order, fall to the ground for the simple reason that law is well settled that if the tenant or any member of his family builds or otherwise acquires, in a vacant state or gets vacated a residential building in the same city, municipality, notified area or town area, in which the building under tenancy is situate, the tenant shall be deemed to have ceased to occupy the building under his tenancy.

The legislature in its wisdom, has, therefore provided under Act No. XIII of 1972 and the Rules framed thereunder, wherever required, that where tenancy or any member of his family has acquired a building in a vacant state he shall be deemed to have ceased to occupy the building under the tenancy.  The petitioner, in the instant case, having built his own house, he shall be deemed to have ceased according to spirit of the Act No. XIII of 1972 and the Rules framed thereunder under Sections 12(3), 16, proviso (1) to (4) of explanation (i) of Section 21 of U.P.Act No. XIII of 1972 conjointly read with Section 16 of the Rules framed thereunder. The petitioner-tenant having acquired alternate accommodations, he has no legal right to continue in possession of the disputed accommodation.

This Court in  Banshidhar V. IIIrd ADJ Aligarh- 200(2) ARC -808, and  Dwarika Nath Soni V. Bhagwan Das Gupta- 2005(2) ARC page 739  has  held that every adult member of the family has a right to settle down in independent business. Such need cannot be rejected on the ground that the same is not bona fide.

For the reasons stated above, the writ petition succeeds and is allowed.  The petitioner-tenant will vacate the disputed accommodation and hand-over its peaceful possession to the respondent-landlords within a month from today and make payment of arrears of rent, if any, within the same period.  In case, he fails to comply with this direction, he will be liable to be evicted by coercive process, in accordance with law, with the aid of local Police and the arrears of rent shall be recoverable as arrears of land revenue.  No order as to costs.

Dated 30.11.2006

kkb


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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