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RAKESH KUMAR JOSHI versus NARENDRA KUAMR GUPTA & OTHERS

High Court of Judicature at Allahabad

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Rakesh Kumar Joshi v. Narendra Kuamr Gupta & Others - WRIT - A No. 27141 of 2003 [2006] RD-AH 20340 (30 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

Court no. 7

Civil Misc. Writ No. 27141  of 2003

Rakesh Kumar Joshi ... Petitioner

                 Vs.

Narendra Kumar Gupta and others                 ...       Respondent

Hon'ble Rakesh Tiwari, J

Heard counsel for the parties and perused the record.

This is tenant's petition challenging the validity and correctness of judgment dated 8.5.2003 (Annexure 6 to the writ petition) passed by the Additional District and Sessions Judge/Special Judge, Ghaziabad in Rent Appeal no. 90 of 2000.

Briefly stated, the facts of the case are that the petitioner is tenant of a shop on a monthly rent of Rs.450/- for the last about 30 years situate in Krishna Sadan, near Raj talkies, Modinagar, district Ghaziabad. Smt. Krishna Devi widow of late Sri Ganga Saran and mother of the respondents was the owner and landlord of the shop, in dispute.

Smt. Krishna Devi, mother of the respondents filed release application under Section 21(1)(a) of the U.P. Urban Buildings (Regulatio of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as ''the Act no. XIII of 1972') for release of the shop, in dispute in her favour on the ground that the same was genuinely and bona fidely needed  by her son for establishing her grandson- Sri Sheel Kumar son of Sri Narendra Kumar Gupta- respondent no. 1 in business of general merchandise. The release application was registered as P.A. Case no. 18 of 1972.  It was averred in the release application that her eldest son, respondent no. 1 was in service with M/s. Modi Silk; her second son- respondent no. 2 was in service with M.s. Modi Rubber Industries; third son- respondent no. 3 was in service with M/s. Modi Industrial Ltd. and the fourth son- respondent no. 4 was carrying on business from one of her shops situate adjacent to the shop, in dispute. Her grandson- Shri Sheel Kumar was unemployed and the shop, in dispute was needed for establishing him in business.

The case was contested by the petitioner-tenant denying the plaint allegations on the ground that the need of the landlady was not genuine as her grandson, for whom the shop, in dispute was sought to be released was already engaged in business in the name and style of M/s. Balaji Welding Centre, Ghaziabad.

During the pendency of the release application,t he landlady died on 15.8.1983 and she was substituted by her soons- the respondents in the instant writ petition.

The release application of the landlady was ultimately dismissed vide judgment and order dated 24.7.2000 by the Second Civil Judge (Senior Division) Ghaziabad holding that the need of Sri Sheel Kumar for the shop in dispute was not genuine and bona fide.

Aggrieved by the judgment and order dated 24.7.2000 passed by the Second Civil Judge (Senior Division) Ghaziabad, the respondents preferred Rent Control Appeal No. 90 of 2000 under Section 22 of the Act no. XIII of 1972. The appellate Court vide judgment and order dated 8.5.2003 allowed the release application.

Aggrieved, the petitioner has invoked the writ jurisdiction by means of the present writ petition.

Counsel for the petitioner contended that the Court below has not recorded a specific finding regarding bona fide need of Sri Sheel Kumar, as such, the release application ought to have been dismissed.  He vehemently urged that the Prescribed Authority has recorded a categorical finding tht need of Sri Sheel Kumar was sham and fictitious, as such, it was incumbent on the part of the appellate Court to have recorded specific finding to that effect and in its absence, the impugned judgment is manifestly erronrous in the eye of law.

Counsel for the respondents claimed that the petitioner had defaulted in payment of rent and in this regard S.C.C Suit no. 50 of 2002 is still pending before the Judge, Small Causes Court, Ghaziabad.  He submitted that the business of M/s. Balaji Welding Centre, Ghaziabad allegedly run by Sri Sheel Kumar actually belongs to Smt. Sunita Bansal wife of Sri Anil Kumar Bansal (married daughter of Sri Narendra Kumar- respondent no. 1). He brought to the noti8ce of the Court that respondent no. 1 has also been removed from service and sitting idle at present.  He canvassed that the shop, in dispute, is being used by the petitioner as a ''Godown' and a specific finding to this effect has been recorded by the Appellate Court.  Moreover, the petitioner has got another shop on the main road in the name of ''Joshi Electrical Appliances'.  Apart from it, he has also a ''Fast Food Restaurant' on the main G.T. Road in double storeyed commercial building in the name and style of ''Joshi Palace.  He is also owner of business in the name and style of ''M/s. Rohit Electronics'. He urged that since the petitioner has got alternate accommodations, his need cannot be held to be genuine than that of the landlords.

On query by the Court, counsel for the petitioner candidly admitted possession of aforesaid alternate accommodation by the petitioner.  

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.

The object of the U.P. Act No. XIII of 1972 is to provide an accommodation to a needy person(s)  by allotment on reasonable market rent till he is able to get an accommodation of his own. Hence even if a landlord has other properties, vacant or otherwise occupied, he has a legal right to put those properties to use in the manner he likes.

There may be circumstances which may have compelled the owner/landlord of a building to give whole of it or part thereof on rent, but with passage of time, he may require the same for his needs which might have changed  with passage of time.  A few of such ontingencies are enumerated below :-

1. When landlord let out the accommodation as he has no need due to small famly or children being minor(s) and subsequently, the family grows and children become major, separate accommodation is required, such as living room, study room, drawing room etc.

2. When sons and daughters of the landlord attain marriageable age and couple require separate accommodation with other amenities.

3. When bickering arises due to different nature and behaviour of daughter-in-laws and joint family concept disappears.

4. When landlord lives in village having tenanted accommodation in the cirty and his sons require the tenanted accommodation for study purpose.

5. When landlord lives in first floor but owing to heart-ailement cannot go up by stairs and needs the ground floor.

6. When landlord, with the passage of time, attains high social status and requires additional accommodation for  drawing room guest room etc.

7. When the landlord having tenanted house in city himself resides in the village but due to unhealthy atmoshere in the village requires the tenanted accommodation in the city.

8. When landlord/landlady requires additional accommodation for his./her male/maid servant(s).

9. When daughter of the landlord is wodowed/divorced or judicially separated, she requires tenanted accommodation.

10. If there is no garage and landlord owns a car, for garage purpose, the tenant accommodation is required.

11. If the tenanted accommodation fetches meagre rent and is in a dilapidated condition, it is required by the landlord for reconstruction and giving on higher rent.

12. If the additional or part of the accommodation in possession of the landlord falls down and he is not in a position to repair it, his need for tenanted accommodation is bona fide.

13. If the landlord lives in his ancestral house belongint to several co-sharers and in the family partition he get no accommodation or very small portion, his need for tenanted accommodation will be genuine and bona fide.

14. If the tenant does not live in the tenanted portion and keeps it locked; condition of the house detoriates day by day for want of maintenance, need of the landlord for maintenance of the house willo be genuine and bona fide.

15. If the landlord carries on his business near the house in the possession of the tenant and he want to shift to the said house for convenience/safety, his need will be genuine and bona fide.

16. If the son of the landlord is away from home for higher study and returns back with his family members; wants to live separately, need of the landlord to accommodate him in the tenanted portion will be genuie and bona fide.

17. If the joint family system in the family of the landlord is converted into individualism and each unit needs separate accommodation, need of the tenanted accommodation by the landlord will be genuine and bona fide.

18. If the landlord lives in a narrow lane or in a congested locality in the cirty which is very difficult for movement of vehicles, need of the tenanted accommodation by the landlord will be genuine and bona fide.

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 fails and is dismissed.  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


Copyright

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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