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Raj Kumar Tyagi v. Xvi Addl. Distt. Judge, Meerut & Others - WRIT - A No. 6217 of 1995  RD-AH 18981 (9 November 2006)
Civil Misc. Writ Petition No. 6217 of 1995
Raj Kumar Tyagi
XVI Addl.District Judge, Meerut others
Hon. Sanjay Misra, J.
The petitioner retired in 1990 while working as an Assistant Metallurgist in the Durgapur Steel Plant. He has his wife, two daughters and two sons in his family. He is also owner of about 15 shops and five flats at P.L.Sharma Road, Meerut which are under the occupation of various tenants. The petitioner was living at Ghaziabad in a tenanted accommodation at Rs.1500/- per month since his younger son was an engineering student at Delhi. Two years after his retirement i.e. in the year 1992 the petitioner decided to use his experience as a Metallurgist and start a business of consultancy and order supplier in the steel business. One of his shops namely 1423/8 P.L.Sharma Road, Meerut was in the tenancy of the respondent no.3 and 4 at a monthly rent of Rs.175/-. According to the petitioner the tenants were initially doing the business of paper agency but recently the shop was found locked and it appeared that the tenants were not using the shop any more. The petitioner alleges that his second son was not very bright in studies hence he made up his mind to involve him in his own business. Therefore, he filed an application under section 21 of U.P.Act No.13 of 1972 seeking release of the shop in question for his personal need. It was registered as P.A. case no.168 of 1992.
The respondent nos.3 and 4 contested the application on the question of bonafide need as also on the comparative hardship between the parties. Evidence was led by both the parties in support
of their pleadings. The prescribed authority framed two issues. On the issue of bonafide need of the petitioner it found that the petitioner was a person of sufficient means and had a good income from interest and rent. It found that the son of the petitioner was an engineering student and was likely to get a good employment after his studies. It therefore concluded that the need set up by the petitioner was not genuine nor bonafide. On the issue of comparative hardship the prescribed authority recorded that the tenant had only the shop in question for earning his livelihood. On the other hand it found that the petitioner was a wealthy man having sufficient means therefore the hardship would be more to the tenant if the shop was released in favour of the landlord. While recording the aforesaid findings the prescribed authority disbelieved the case of the tenants that the petitioner had obtained possession of five shops and had put them on rent again after his retirement.
Feeling aggrieved against the order dated 18.5.1994 of the prescribed authority the petitioner preferred an Appeal No.170 of 1994. The appellate court found that the need set up by the petitioner for his son was neither pressing nor urgent since he was still a student of the first year in engineering and it appeared unlikely that the petitioner would shift to Meerut for starting the business. The court was of the opinion that the petitioner could start his business from the house in his occupation at Ghaziabad since the proposed business did not require a godown nor it was required to be based at a market place. The court recorded that the petitioner was owner of 15 shops and 5 flats and he had let out certain shops even just before and after his retirement therefore also his need was not bonafide. The court found that the petitioner had not been able to establish that the tenants had stopped carrying on their business from the shop in question and
it was for the petitioner to have got a commission issued to prove the fact that the shop remained closed. The court held that the tenant did not have any other alternative shop in the vicinity and the petitioner could peacefully start his business from his tenanted residence at Ghaziabad. Therefore, the comparative hardship was more to the tenant in case the shop was released. The appellate court found the findings of fact recorded by the prescribed authority to be correct and therefore rejected the appeal by its judgment and order dated 15.11.1994. The petitioner has challenged the aforesaid orders of the prescribed authority and the appellate court by means of this writ petition.
Heard Sri Sankatha Rai, learned senior Advocate on behalf of the petitioner and Sri P.K.Jain on behalf of the respondents and perused the record.
The prescribed authority found that the tenants had not been able to prove the plea that the petitioner had obtained possession of five shops just before and after his retirement and had again put them up on rent. It had disbelieved the case of the tenants on the ground that apart from making such averment the tenants had not led any evidence whatsoever on the said plea. The appellate court has held that the petitioner had re-let five shops of which he obtained possession just before and after his retirement and therefore found the need of the petitioner not to be bonafide. The appellate court has not referred to any evidence while recording a finding contrary to that recorded by the prescribed authority. When the prescribed found no evidence whatsoever on the issue then the appellate court while reversing the said finding of fact could only do so if there was any evidence before it. It has not referred to any such evidence and therefore the said finding contrary to that of the prescribed authority is
clearly illegal. The conclusion of the appellate court based on such illegal finding is therefore perverse and not supported by any evidence.
Both the courts below have rejected the plea of bonafide need on the grounds that the petitioner was a wealthy person of sufficient means and that the need of the son as set up was neither pressing nor urgent since he was a student of first year in engineering. They have found that the petitioner was not likely to leave Ghaziabad and go to Meerut to start his business. The aforesaid reasoning given by the courts below, although concurrently, does not appear tobe correct. The Act provides the facility to the landlord to evict the tenant on certain grounds. The need of the landlord is one such ground available. When the petitioner had come forward with a plea of his need for augmenting his income and setting his son in the business in the premises belonging to them it was not just a desire or wish. It was not permissible for the courts below to consider the status of the petitioner and hold that he was a person of sufficient means and wealthy and therefore, his need was not genuine and bonafide. The petitioner was a retired employee and wanted to start a business of consultancy and order supplier in the steel market by taking advantage of his experience as a Metallurgist. The said circumstance indicated the genuineness of the petitioners need and it could not have been found ingenuine for the reasons given by the courts below. The ground for refusing the release was that the petitioner can start his business at Ghaziabad from his tenanted house is also not proper. The landlord cannot be compelled to start his business in a tenanted accommodation only to accommodate a tenant. The petitioner has stated in his affidavit that the respondent no.3 and 4 never tried to even search for any alternative accommodation nor they brought any evidence on record to show that inspite of best efforts no alternate
accommodation was available. The record indicates that the appellate court has observed that no other shop was available to the tenants in the vicinity. This observation does not appear to be based on any evidence to the effect that the tenants made efforts to search for any alternative shop but inspite of the efforts no such alternative shop was available. The said plea was not even canvassed by the tenants before the prescribed authority. This was an important point which ought to have been considered while deciding the comparative hardship between the parties.
For the reasons as discussed above the findings recorded by the courts below are clearly perverse and not in accordance with law. Normally this court refrains from interfering in findings of fact and where such findings are perverse and illogical the same are set aside and the case is remanded to the courts below for re-deciding the issues in accordance with law. Learned Senior counsel submits that these proceedings were started in the year 1992 and now more than 14 years have elapsed. He states that the dispute be decided by this court to avoid further delay. The bonafide need of the petitioner is clearly made out and no fruitful purpose could be served in remanding the matter at this belated stage. Learned counsel has relied upon a decision of the Hon'ble Supreme Court in the case of R.C.Kesharwani Vs.Dwarika Prasad reported in 2002(2) ARC 298 and has argued that when the matter is quite old then remand must be avoided. In the present case this court having found the need of the petitioner to be genuine and bonafide the interest of justice requires and in order to bring the litigation to an end remand would only prolong the agony of a landlord found entitled to the relief.
The writ petition is therefore liable to be allowed. The release application of the petitioner landlord is allowed. The respondent nos.
3 and 4 are granted four months time to vacate the premises and had over peaceful possession of the shop in question to the petitioner and to deposit the rent for the said period which the petitioner shall be entitled to withdraw from the court below. The petitioner shall also be entitled to the arrears of rent, if any, at the agreed rate from the date of filing of the release application upto date, if already not paid or deposited by the tenants.
The writ petition is allowed. No order is passed as to costs.
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