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RAJENDRA SINGHAL versus GULSHAN CHABAQ

High Court of Judicature at Allahabad

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Rajendra Singhal v. Gulshan Chabaq - WRIT - A No. 4446 of 2006 [2006] RD-AH 8623 (28 April 2006)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

"Reserved"

Civil Misc. Writ Petition No. 4446 of 2006.

Rajendra Singhal                                                               ..........Petitioner.

Versus

Gulshan Chabaq                                                                ....Respondents.

..............

Hon'ble Anjani Kumar, J.

By means of present writ petition under Article 226 of the Constitution of India, the petitioner, tenant of the accommodation in question, which is a shop, has challenged the order dated 24th December, 2005, passed by the appellate authority under the provisions of the U.P. Act No. XIII of 1972, here-in-after referred to as 'the Act', whereby the appellate authority has allowed the appeal filed by the respondent-landlord and set aside the order dated 19th August, 2004 by which the prescribed authority under 'the Act' has rejected the release application filed by the respondent-landlord.

The brief facts of the present case are that Gulshan Chabaq, who is owner and landlord of the accommodation in question to which the petitioner is tenant filed an application under Section 21 (1)(a) of 'the Act',  before the prescribed authority with the prayer that the accommodation in question, which is a shop, requires bona fide by the respondent-landlord for settling down his son in the business and further the daughter of the landlord being a practicing  Advocate requires accommodation for establishing her chamber.  It is further stated that since the petitioner-tenant has already an alternative accommodation when he has constructed a building at 142, Ganj Bazar, Meerut, which is a residential as well as commercial accommodation where the petitioner-tenant can shift his business from the accommodation in question.

The aforesaid allegations of the respondent-landlord were denied by the petitioner-tenant stating that the petitioner is the tenant of the accommodation in question, which is a shop.  It is submitted by the tenant that since the tenant is regularly paying the rent to Kusum Chabaq, therefore relationship of landlord and tenant is between the petitioner-tenant and Kusum Chabaq.  The present application for release of the accommodation in question by respondent-landlord Gulshan Chabaq therefore is not maintainable.

Both  the  parties  have  exchanged  their  pleadings  and  filed their

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respective evidence.  The prescribed authority vide order dated 19th August, 2004 rejected the release application on the ground that the need of the landlord is neither genuine, nor bona fide and it is mere desire.  On the question of maintainability of release application, the prescribe authority held that the application filed by co-owner is maintainable.  

Aggrieved by the order dated 19th August, 2004, passed by the prescribed authority, the respondent-landlord Gulshan Chabaq preferred an appeal under Section 22 of 'the Act' before the appellate authority.  Before the appellate authority the respondent Gulshan Chabaq filed an affidavit that his son Akash Chabaq has received a professional of B.E. Degree in computer course from IGNOU and also that he is a student of M.Sc. Vith Semester (final year).  To the aforesaid affidavit filed by son of Gulshan Chabaq, the petitioner-tenant filed a counter affidavit stating specifically that now Akash Chabaq (son of Gulshan Chabaq) is working as teacher in Institute of Management, situated at Delhi Road, Meerut and drawing handsome salary and the job of Akash Chabaq is permanent and he has no intention to carry out any business in the accommodation in question.  On the strength of this counter affidavit filed by the petitioner-tenant, it is argued before the appellate authority that since no reply (rejoinder affidavit) has filed by respondent Gulshan Chabaq, the averments made in the counter affidavit filed by the tenant shall be treated to be un-rebutted.  Before the appellate authority, the petitioner-tenant also raised the question on the maintainability of application under Section 21 (1)(a) of 'the Act' stating therein that there is no relationship of the landlord and tenant between Gulshan Chabaq and the petitioner, as the petitioner-tenant is paying the rent to Kusum Chabaq.  It has also been argued on behalf of petitioner-tenant that in fact as held by the prescribed authority that the so called need of the landlord is mere desire thus is not a bona fide need. On the question of comparative hardship, the respondent-landlord argued before the appellate authority that since the petitioner-tenant has an alternative accommodation as his own house situated at 142, Ganj Bazar, Meerut, the petitioner will have no hardship in shifting from the accommodation in question.  The appellate authority on the question of maintainability of application under Section 21 (1)(a) of 'the Act' filed by Gulshan Chabaq has relied upon a Full Bench decision reported in 1987 (1) A.R.C., 281, wherein the Full Bench of this Court has held   that  "the co-landlord  can  file  the  application   for  release  without

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impleading other co-landlord."  The aforesaid Full Bench decision which has been relied upon by the appellate Court further held that the objection raised by the petitioner to the effect that since he has not paid the rent to landlord Gulshan Chabaq, therefore the release application filed by Gulshan Chabaq is not maintainable.  The appellate authority while rejecting the aforesaid contention raised on behalf of the tenant has relied upon the fact that originally the petitioner was the tenant of the father of landlord and was paying rent to his father and after the death of the father, both brother and sister have inherited the accommodation in question, therefore merely because Kusum Chabaq is realizing the rent, it cannot be said that landlord Gulshan Chabaq ceased to be co-landlord/co-owner of the accommodation in question.  Thus, the appellate authority has held that the application filed by one of the co-owner without impleading the other co-owner is maintainable and rejected the objection raised on behalf of the tenant-petitioner and the order of the prescribed authority to this effect has been affirmed by the appellate authority.  On the question of bona fide need, the appellate authority has reversed the findings arrived at by the prescribed authority by giving cogent reasons that merely because Akash Chabaq (son of Gulshan Chabaq) is working somewhere will not a ground for rejecting the need of the landlord to the effect that he will settle down is son in the business and the findings to the contrary that Akash Chabaq is since working as a teacher, therefore the inference by the prescribed authority that since Akash Chabaq is in service, he has no intention of entering into business, is not correct.  The appellate authority relying upon the Full Bench decision of this Court has further held that every father has a right to settle down his son in the business during his life time.

On the question of need for daughter of Gulshan Chabaq, the appellate authority has found that since daughter has already been married, therefore the need of daughter cannot be considered.  However, the need was for settling down his son in the business cannot be rejected and the prescribed authority has committed an error in rejecting the bona fide need of son of the landlord Gulshan Chabaq only on the ground that he is employed.  Thus, the appellate authority found that the need of the landlord is bona fide.  On the question of comparative hardship, the appellate authority found that since the tenant has already owned an accommodation  at 142, Ganj Bazar, Meerut, which is a residential as well

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as commercial accommodation, therefore the tilt of the comparative hardship will be in favour of the landlord.  The appellate authority therefore allowed the appeal filed by the respondent-landlord and set aside the order passed by the prescribed authority and directed release of the accommodation in question in favour of the landlord.

Before this Court, learned counsel for the petitioner-tenant repeated the same arguments as were advanced before the appellate authority, which have been discussed above.  Learned counsel for the petitioner-tenant could not point out any error of law, much less error apparent on the face of record so as to warrant any interference by this Court in exercise of jurisdiction under Article 226 of the Constitution of India.  In my opinion, appellate authority has given cogent reasons for setting aside the findings arrived at by the prescribed authority with regard to bona fide requirement of the landlord.

In view of what has been stated above, this writ petition has no force and is accordingly dismissed.  The interim order, if any, stands vacated.

Dated:

Rks.


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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