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RAFI ULLAH versus DR. OM HARI

High Court of Judicature at Allahabad

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Rafi Ullah v. Dr. Om Hari - WRIT - A No. 70015 of 2005 [2006] RD-AH 16362 (19 September 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.

By means of the instant writ petition, the petitioner has challenged the validity and correctness of the impugned judgment and order dated 5.10.2001 passed by the Special Judge/Additional District Judge, Kannauj passed in Rent Control Appeal No.1/43 of 2002 as well as  judgment and decree dated 18.10.2002 passed by Prescribed Authority in P.A. Suit No. 1/98 filed by the respondent-landlord in a proceeding 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').

The factual matrix giving rise to the present writ petition are that landlord- respondent filed a release application under Section 21(1)(a) of the Act registered as P.A. Case no. 1 of 1998. The ground taken in the release application was bona fide and genuine need of the disputed shop of the landlord admeasuring 10 ft.X 21 ft., which was let out to the petitioner's father on rent for tailoring purposes.

It is alleged in the release application that with the passage of time, his private practice as doctor has flourished and it is too difficult for him to accommodate large number of patients in his clinic in the adjoining backside small shop admeasuring 9 ft.X10 f`t. He claimed one consultation room, one waiting room for patients, one room for examination of patients and one medicine distribution counter room.  The landlord alleged that the tenant-petitioner is already in possession of three vacant shops in the nearby Jama-Masjid adjoining his residential house, which is hardly at a distance of half kilometers whereas he, the landlord, does not have any alternate accommodation in the town.

The tenant-petitioner contested the release application by filing written statement and denying the averments contained therein. The tenant alleged that he is running his tailoring shop in the name and style of ''Fainshi Tailor' from the disputed accommodation since 1962; that initially the monthly rent of the disputed shop was 60/- which was subsequently enhanced from time to time and from March 1997, monthly rent was Rs.200/-; that he has earned goodwill and in case he is evicted from the disputed shop, he would face greater hardship than the landlord.  He also alleged that the disputed shop is situated at G.T. Road which is full of noise due to heavy traffic and is not suitable for running hospital/clinic and that the landlord has several other shops and few of them have been sold away to the sitting tenants.  

Apart from his own affidavit in support of his case, the landlord  filed affidavits of Sri Govind Murari Chaturvedi, Advocate and Dr. Subhash Chandra.  The tenant also filed his own affidavit and the affidavits of Sri Kallu son of Sri Chhadawan and Sri Sarfaraj son of Sri Rajjak Khan in support of his case.

After appraisal of evidence of both the parties, the Prescribed Authority vide judgment and decree dated 18.10.2002 allowed the release application of the landlord.

Aggrieved by judgment and decree dated 18.10.2002, the tenant-petitioner preferred Rent Control Appeal No. 1/43 of 2002 which has been dismissed vide impugned judgment and order dated 5.10.2005 passed by the Special Judge/ Additional District Judge, Kannauj.

The petitioner has now challenged the validity and correctness of the aforesaid two judgments and decree in this writ petition.

Contentions of Counsel for the petitioner

It has been contended by counsel for the petitioner that both the Courts below have not considered the mandatory provision contained in Rule 16(1)(d) of the Rules framed under the Act and have passed ejectment order. He urged that it is settled law that there is no distinction between a residential and commercial accommodation and thus the provisions of Rule 16(1)(d) apply in both the cases. In support of his contention, he placed reliance upon the decisions of this Court in Pratap Narain Tandon V. Abdul Mukhatadir- 2005(1) ARC-555; Swaraj Kumar V. Arvind Kumar- 2005 (II) ARC-243 and Prakash Babu and others V. IInd Additional District Judge, Aligharh and others -ARC-1988 Vol. II-357 wherein it has been held that even if the plea of Rule 16(1)(d) has not been raised before the Courts below, it is mandatory on the part of the Prescribed Authority as well as appellate Court/authority to consider the same and pass orders accordingly.  In all the aforesaid three cases, matter was pertaining to non-residential accommodation. He supported his contention by a decision of Hon'ble the Apex Court in Ramesh Chandra Kesarwani v. Dwarka Prasad and another-2002(2) ARC-298 wherein it has been held that the provisions of Rule 16(1)(d) is applicable to non-residential accommodation too as there is no such provision in Rule 16(2) but does not affect the power of authority vested under Section 21 to partial eviction.

He also urged that the finding of both the Courts below that the tenant has an alternate accommodation where he can shift his business is contrary to the mandatory provision of Rule 16(2)(b) where it is mandatory on the part of the Court to consider the fact whether the accommodation is suitable or not and whether shifting to that accommodation will result in substantial loss to the party. The counsel submits that failure to do so by the Courts below has vitiated their judgment.  In support of this contention, he placed reliance upon the decisions in Kashi Nath V. IInd A.D.J. Mirzapur- 1984(2) ARC-435 and Ved Prakash V. IInd A.D.J. Aligarh and others-1984(II) ARC-485, wherein it has been held that the Court has to record a categorical finding on the question of loss being suffered by the tenant in shifting to another shop and failure to do so vitiates the judgment.

Contentions of Counsel for the respondent

Per contra, it has been contended by counsel for the respondent-landlords that both the Courts below have recorded concurrent findings of fact that the father of the respondent had let out the disputed shop admeasuring 20'X10' in 1970 for tailoring shop when respondent was minor and studying.  It is submitted that the contesting respondent after passing M.B.B.S course in 1997 started his private medical practice in a small shop admeasuring 10'X9'. Since his practice flourished, he filed release application in 1988 on pressing need and genuine hardship as the disputed shop was badly needed for expansion of his clinic.

No other point has been argued by the counsels for the parties.

CONCLUSIONS:

Having heard arguments advanced by counsels for rival parties and having gone through the records, it is evident that both the Courts below, after appraisal of evidence of both the parties, have given a concurrent finding of fact that the need of the landlord is bona fide and greater than the tenant. It has also been held  that the tenant has not brought any evidence on record to show that he made any effort to get any alternate accommodation much less any bona fide effort.  It has also been held that the tenant is in possession of three shops in the nearby Jama Masjid market. The tenant has simply stated that these shops are incomplete and are in possession of his brothers.

From the perusal of record, it is evident that the tenant had only one brother who died in 2005. Prescribed Authority has dealt with the question of comparative hardship and has concluded thus :-

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In so far as contention of counsel for the petitioner regarding non consideration of Rules 16(1) and 16(2) of the Rules framed under the Act is concerned, a perusal of record shows that the tenant had himself stated in his two affidavits filed before the Courts below that the alleged requirement of landlord for expanding medical clinic cannot be fulfilled by the small disputed shop admeasuring only 20'X10' and he can set up his clinic somewhere else. Moreover, the tenant had not claimed part-release before either of the Courts below and is estopped from raising this issue, for the first time, in the writ petition. A bare perusal of Rule 16(1)(d) reveals that it is mandatory for the Prescribed Authority to decide part-release in respect of residential premises. There is no such provision in Rule 16(2) which is applicable for the building occupied for commercial purposes. Shital Prasad V. 1st Addl. District Judge, Moradabad and others - 2002(2) ARC-255 gives complete answer to the contention of counsel for the petitioner on this issue.  The relevant observation of the Court is as under:-

"     In view of the aforesaid fact, it is clear that there is a distinction made by the Legislature in framing the two sets of Rules : one residential premises governed by Rule 16(1) and the other is Rule 16(2), which is made applicable only to the non-residential premises. The present application is for the release of the non-residential accommodation, therefore, it is rule 16(2) which will be made applicable.  A perusal of Rule 16(2) will demonstrate that there is nothing like Sub-Rule (2) as is thereunder Sub rule (1) of Rule 16.  In this view of the matter, this argument is not available to the learned counsel for the petitioner and this Court refuses to entertain this argument on the ground that since this argument has not been raised either before the Prescribed Authority or before the Appellate Authority, the same cannot be raised.

The requirement of the landlord for expansion of clinic cannot be fulfilled by part release.

In Iqbal Ahmad (Dr) V. IInd A.D.J Ballia and others- 2004(2) ARC-505, it has been held that the tenant has got no business to dictate the landlord as to how he can squeeze his need in smaller portion. The words ''bona fide' need under Section 21 do not mean dire urgent or acute.  Tenant, in that case, did not bring on record any evidence to show that he made any efforts to purchase of take on rent any alternate accommodation after filing of release application.   In Ram Swaroop (dead) through LRs V. Mahesh Chandra Jain and others-2005(2) arc-326, need was set up by the landlord for better professional services.  It was held that it is certainly desirable for a medical practitioner to have adequate place for doing pathological and radiological tests.  In Beg Raj Sintgh V. the VIIth Additional District Judge, Muzaffarnagar and others - 2002(1) ARC-54, it has been held that it is settled law that High Court under Article 226 will not interfere with the findings unless they are perverse or suffer from manifest error of law. Same view was expressed by this Court in Razia Khatoon (Smt.) and others V. Vth Additional District Judge, Kanpur Nagar and others -2002(1) ARC-44 and Qamar Jahan (Smt.) and others Vs. Xth A.D.J. Kanpur and another -2004(2) ARC-305 and recently in E.Parshuraman (deceased by L.Rs) Vs.V. Doraiswamy (deceased by LRs- AIR 2006 SC-376 it has been held that concurrent findings of facts recorded by the subordinate Courts should not be interfered in writ jurisdiction.

No illegality or infirmity in the impugned judgments and decree could be pointed out by counsel for the petitioner in the impugned orders for interference by this Court in findings of facts recorded by Courts below. The petitioner has his own shop in his own residential building. If the place where his shops are situated is not conducive of business he would not have invested huge amount in construction of those shops. Moreover, it appears from record that the petitioner is doing good business  in his shops.

It is not bona fide and in good taste by the tenant to ask the landlord to shift his livelihood elsewhere even though he has three shops of his own in his possession.

For the reasons stated above, the writ petition fails and is dismissed. Tenant-petitioner will handover peaceful possession of the disputed shop to the respondent-landlord within a month from today and make payment of arrears of rent, if any, within two months from today.  In case the disputed shop is not vacated and payment of arrears of rent is not made within the aforesaid stipulated period, he will be evicted by Police force and arrears of rent will be recovered as arrears of land revenue.  No order as to costs.

Dated 19.9.2006

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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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