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Priya Darshan Dhawan v. XI ADJ - WRIT - A No. 39767 of 1996  RD-AH 8 (1 April 2000)
Civil Misc. Writ Petition No. 39767 of 1996
Priya Darshan Dhawan. .... Petitioner
XI Additional District Judge, Kanpur Nagar and others
Hon'ble Yatindra Singh, J.
This is tenant's writ petition against the order dated 22.4.19941 passed by the Prescribed Authority Kanpur Nagar (Respondent no. 2) and the order dated 1.11.19962 passed by XI Additional District Judge, Kanpur Nagar (Respondent no. 1) in the proceedings under section 21(1)(a) of the U.P.Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (the Act for short) in respect of a shop situate at ground floor of premises no. 39/16, Meston Road, Kanpur. Both the Courts below have allowed the application and released the shop in favour of land-lord.
Sri K.N. Nigam was the owner and of the premises No. 39/16,Meston road Kanpur. It is a triple storied building. In the ground floor there are two shops in the front. One shop is about 14'x7' and the other shop is approximately 14' x 14'. There is also one more room, a court- yard and a kitchen in the ground floor. The room in the ground floor is behind these two shops. Sri Priya Darshan Dhawan (petitioner) is the tenant of one of the shops which is approximately 14' x 14'. The dispute relates to this shop. It is referred to as the shop. The another shop (14' x 7') is with the land-lord. It is referred to as the other shop. The rest of premises at present is residential; in possession of the land-lord.
Sri K.N. Nigam filed an application on 25.2.1989 for release of the shop under section 21(1)(a) of the Act. The need set up by him was his personal need and the need for the chamber of his daughter Ms. Manju Nigam an Advocate at that time. Sri K.N. Nigam died some time in September 1989. An application to substitute the heirs alongwith their need was filed. The need now set up was for the use of Smt. Shakuntala Nigam widow of SriK.N. Nigam; for the chamber of Ms. Manju Nigam and to settle Shailendra Nigam who is the grand son of SriK.N. Nigam. This application was allowed. The heir was substituted as well as facts relating to the present need were incorporated in the release application. It appears that the tenant has not filed the written statement even after expiry of 4 years 8 months of filing of the release application. His defence was also struck off by order dated 13.9.1993. The tenant-petitioner filed a writ petition against this order. This court by its order dated 8.10.19933 upheld the order incorporating the facts relating to personal need of the land-lord. In view of his statement that the tenant will file a written statement before the Prescribed Authority within six weeks the order of the Prescribed Authority striking off the defence was set aside.
The need set up by the landlord before the Prescribed Authority had included the need of Ms. Manju Nigam also. She was selected in Higher Judicial Service but has not joined the same when the arguments were advanced before the Prescribed Authority. He repelled the contention that the need of Ms. Manju Nigam cannot be considered as she was yet to join the Higher Judicial Service and she was still an Advocate. He held that the need of the landlord on all the three counts; namely for Smt. Shankuntala Devi; Ms. Manju Nigam and Shailendra Nigam are bonafide. He compared the hardship also and held that greater hardship will occasion to landlord in case the application of landlord is rejected. He allowed the application of the land-lord.
The petitioner-tenant filed an appeal against this order. The appellate court did not consider the need of Manju Nigam and Smt. Shakuntala Devi. He only considered the need of Sri Shailendra Nigam and held that need of Shailendra Nigam is bonafide. He also compared the hardship and had held that greater hardship will occasion to the landlord in case released application is
rejected. He dismissed the appeal. Hence the present writ petition.
POINTS FOR DETERMINATION
I have heard Counsel for the parties.4 The following points arise for determination in this case:
The land-lords have set up three different needs. Is the need of Shailendra Nigam in the circumstances legal? Can it be considered, as it was never originally set up?
Has land-lords alternative accommodation? Can the need of Shailendr Nigam satisfied by doing business there?
Whether the need of Shailendra Nigam would be met by releasing part of the shop? Should the shop partitioned? Should there by spot inspection?
Was the hardship properly compared by the courts below? Have the courts considered the goodwill?
IS THE NEED OF SHAILENDRA NIGAM LEGAL? CAN IT BE CONSIDERED?
It is true that initially the need of Shailendra Nigam was not mentioned in the release application. It is also true that on the earlier occasion the need of SriK.N. Nigam and need of Ms. Manju Nigam was mentioned. But incorporating the facts relating to need of Shailendra Nigam application has been allowed. The order was upheld by the High Court. The land-lord could have withdrawn their application and filed fresh one incorporating the need. This cannot be challenged at this stage. There is no illegality in mentioning more than one need. The Respondent no.2 had held the need of all the three persons to be bonafide but the Respondent no. 1 has confined his case to the need of Shilendra Nigam only. The validity of this order is to be seen. The fact that need of more than one person is alleged, is not relevant. The judgement cannot be faulted on this score otherwise there is no illegality in the order of Respondent no. 1. The need of the Shilendra Nigam can neither be faulted nor the need of the Shailendra Nigam can be
held to be malafide merely for the fact that the land-lord have mentioned need of other persons in the application.
The tenant-petitioner challenged the findings of the bonafide need on the ground that the land-lord had other accommodations available to him. Sri Shnailendra Nigam could start his ''General Departmental Store' in one of the accommodations his need could have been satisfied by that. These accommodations are:
(i)House no. 38/24, Gillis Bazar, Kanpur.
(ii)House no. 306 Meerpur Cantt., Kanpur.
(iii)Accommodation tenanted by P.D Agrawal, which has been released in their favour, and
(iv)Shop adjacent to the shop in dispute, which claimed to be run and managed by Smt. Bandana Nigam.
(v)The room behind the shop.
Let's see any of these accommodations were available to Sri Shailendra Nigam or not.
House No. 38/24 Gillis Bazar, Kanpur
Sri K.N. Nigam has got two sons. Dr.O.P. Nigam is one of them. Shailendra Nigam is his son. Sri Ravi Prakash Nigam is his other son. Sri K.N. Nigam also has two daughters; Smt. Sheela Nigam and Ms. Manju Nigam. Smt. Sheela Nigam is married at Delhi. Sri K.N. Nigam alongwith his children and grand children used to live at 39/16 Meston Road Kanpur, where in whose ground floor the shop is situate. There was paucity of residential accommodation. Dr.O.P. Nigam alongwith his family (including Shilendra Nigam) shifted to house No. 38/24 Gillis Bazar, Kanpur. It is a tenanted premises and is for residential purpose. No shop can be opened in this. In case it is so done then Dr.O.P. Nigam and his family members will be liable for ejectment on the ground of change of user. The courts below have rightly held that it is not available for opening of shop. There is no illegality.
House No. 306 Meerpur
Dr. O.P. Nigam was a doctor. He was running his clinic in the house no. 306 Meerpur. This was also a tenanted premises. Shailendra Nigam can neither open a clinic for he is not a doctor nor a general merchandise shop. If he does that it would be change of user. The possession of the shop has been taken by the land-lord of that premises. It is no longer in possession of Shailendra Nigam. This is a finding given by the courts below. It is not available to Shailendra Nigam. He cannot do business there.
Accommodation Tenanted by Sri P.D. Agrawal.
Sri P.D. Agrawal was a Chartered Accountant. He had one room office in the first floor of 39/16, Meston Road. It was above the shop in question. The land-lord has got it released from the Rent Control Authorities. The order has been upheld by the High Court. It is a reported decision.5 There is no discussion about this accommodation in the impugned Orders.There is allegation in the writ petition that the facts related to accommodation tenanted by Srid P.D. Agrawal were placed before the Courts below and they have failed to consider the same. This Point is being raised for the first time here at the stage of arguments. It cannot be permitted. The reading of the reported decision indicates that this was the accommodation which the land-lord got it released for residential purpose. It is on the first floor. It cannot be utilised for non-residential purpose; namely as a shop.
Shop Adjacent To The Shop In Dispute The Other Shop.
The shop in dispute is about 14' x 14'. There is another shop adjacent to it which is about 14' x 7' (the other shop). Sri K.N. Nigam was doing business in this shop. Sri K.N. Nigam has written a will on 22.11.19886. The validity of this will is not questioned. The will states that Sri K.N. Nigam is the owner of the house during his life time and after his death his wife, if alive, will have the same right as Sri K.N. Nigam and after their death the will envisages partition amongst the family members. This family arrangement is not relevant except for the fact that out of the two front shops the shop in dispute alongwith land behind the shop in dispute has been given to Dr.Om Prakash Nigam and the other shop is given to Ravi Prakash.
Initially Sri K.N. Nigam was doing business in the other shop in the name and style of M/s Prakash opician. After his death his wife started doing business therein alongwith help of Sri H.K. Paul. The tenant-petitioner alleged that this other shop has been let out to Sri H.K.Paul. It is for this reason that he has filed an affidavit7 that he is not the tenant of Shop in question. He is merely an employee and is getting salary of Rs. 600/- per month. The shop in question was being run in the name and style of Prakash Optician. This was being run initially by Sri K.N. Nigam and for sometime Smt. Shakuntla Nigam. At present Smt. Vandana Nigam wife of Ravi Prakash Nigam is looking after this business and she has become sole proprietor of M/s Prakash Optician.8 The Courts below have held that this shop is not vacant. Smt. Vandana Nigam, wife of Sri Ravi Prakash Nigam is doing business. It is not available for Shailendra Nigam. The Prescribed Authority has also referred the will and in this connection. Counsel for the petitioner says that this shop has not yet come in the share of Ravi Prakash Nigam. He has placed emphasis on clause 2 of the will. According to him this will happen after the deah of Smt. Shakuntla Nigam. This is true. But the Prescribed Authority has referred the will to emphasise that the shop will ultimately go to Ravi Prakash Nigam and at present his wife is doing business there. It would not be proper for Shailendra Nigam to start business there. This would lead to tension. There is no illegality in this finding.
The Room Behind The Shop.
There is a room behind the shop. It has an opening from the side street and not from the front road. According to the tenant Shailendra Kumar could do business there. The landlord says this shop is not at all suitable for business. There is no frontage. The landlord offered this room as an alternative accommodation to the tenant. He has refused it. When the tenant himself has refused the room as unsuitable then he can not ask shailendra Nigam to start his business there. The finding regarding bonafide need can not be questioned on this account.
None of the accommodations mentioned by the counsel for the petitioner are available to Shailndra Nigam for doing business. The finding regarding bonafide need of Shailendra Nigam can not be set aside on this ground.
WHETHER NEED COULD HAVE MET BY PARTITIONING THE SHOP.
The counsel for the petitioner argued that the need of the tenant could have been easily met by partitioning the shop into two portions and one portion could have been released in favour of Shailendra Nigam. This point was not pleaded. The courts below have not decided it. It is for the first time that it is raised here. The counsel of the petitioner points out to the rule 16(1) (d) says that it is the duty of the court and this point can be raised for the first time in the writ petition. Rule 16(1)(d)9 contemplates partition of the building where the landlord need would be served by releasing part of the building. The courts have taken the view that the rule 16(1)(d) casts duty on the court. The court ought to have applied its mind, even it is not raised in the written statement or argued it. This can be raised for the first time in the writ petition. But Rule 16(1)(d) applies only as far as residential accommodation is concerned. There is no such rule as far as non-residential premises are concerned. The Shop is a non-residential accommodation. It is not a residential accommodation. The tenant never set up this case that need of the landlord can be satisfied by releasing part of building. Neither any evidence was led nor the courts below have considered it. It is being taken for the first time in the writ
petition. This can not be permitted. It is not a residential
building, but is a non-residential accommodation. Rule 16(1)(d)does not apply to it10. Apart from this the shop in question is merely 14' x 14'. Shailendra Nigam wants to set up a general merchant store in the shop. This kind of business can not be set up in case the shop is partitioned.
The counsel for the tenant-petitioner says that the tenant had filed application for spot inspection. It has been wrongly rejected. The copy of this application is not on the record of this writ petition, but the order dated 22.3.96 rejecting the application is on the record.11 A reading of this order shows that the application was moved for spot inspection of the portion behind the shop. The Court rejected this on the ground that accommodation behind the shop was admitted, there was no necessity of spot inspection. The application for spot inspection was not filed to see whether the shop can be partitioned or not for meeting the need of the landlord. The application was rightly rejected.
Was Hardship Properly Compared.
The counsel for the petitioner says that there is no proper comparison of the hardship of the parties. Neither the goodwill has been considered nor the fact has been seen that the landlord could easily do his business in the room behind the shop. This is not correct.
The Courts below have considered the goodwill12. The finding of
the comparative hardship has been given after considering the goodwill. It is finding of fact. It cannot be set aside on this score.
The room behind this shop has been refused by the tenant when it was offered as alternative accommodation. I have already
discussed it under the heading ''The Room Behind The Shop'. The Courts below after considering the relevant considerations that the tenant has not searched for alternative accommodation and has refused the alternative accommodation offered by the landlord, have held that greater hardship will occasion to the landlord in case his application is dismissed.
The finding of the fact recorded by the Courts below on the question of bonafide need and comparison of hardship are not so unreasonable that no reasonable man could have come to the conclusion. They are neither perverse nor arbitrary. These findings can not be interfered under Article 226 of the Constitution.
The petition has no merit and is dismissed with costs. However, the petitioner tenant is granted six months time to vacate the premises in dispute provided he files an undertaking in the form of an affidavit within one month from today before the Prescribed Authority concerned that he will hand-Aover the peaceful possession of the premises in dispute to the landlord after six months and pay the entire rent for the period of his occupation.
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