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Shambho Nath Vs. Radhey Shyam and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ No. 5934 of 1974
Judge
Reported inAIR1975All214
ActsUttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972 - Rule 16(2); Constitution of India - Article 226
AppellantShambho Nath
RespondentRadhey Shyam and ors.
Appellant AdvocateBrijesh Verma and ;B. Prasad, Advs.
Respondent AdvocateS.B. Chaudhary, Adv.
DispositionPetition dismissed
Excerpt:
..... - 2. the main contention raised by the learned counsel for the petitioner is that the additional district judge has not considered the comparative needs of the petitioner and the landlords and, as such, his order is bad in law. his view that loss of goodwill can be compensated under the act by payment of 2 years' rent may or may not be correct, but other facts found by him show very clearly that the petitioner would not suffer loss of goodwill, if he has any. it has also been found that the petitioner has another rented accommodation where he is residing as well as carrying on his business of 'gur ki sev' and 'ramdana ki laiya'.the learned judge has also found that the size of the petitioner's family is very small consisting of himself and his wife and he has an alternative..........by the prescribed authority but has been allowed on appeal by the 3rd respondent, the additional district judge, allahabad. the petitioner has challenged this order in the present writ petition.2. the main contention raised by the learned counsel for the petitioner is that the additional district judge has not considered the comparative needs of the petitioner and the landlords and, as such, his order is bad in law. it has further been contended that the district judge has also not given due consideration to the findings recorded by the prescribed authority that the petitioner had acquired goodwill in respect of the shop in question. he has relied upon a decision in bechan ram v. state of u. p. (civil misc. writ no. 1575 of 1971 (all.) decided on 13-9-1974) where i have held that in.....
Judgment:
ORDER

R.L. Gulati, J.

1. The petitioner is a tenant of Shop No. 186/311 situate in Mandi Modhoganj, Allahabad, The first and the second respondents are the owners of the shop and shall hereinafter be referred toas the landlords. The Landlords applied under Section 21 of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 for the release of the shop on the ground that a son of one of the landlords, had obtained a degree in M. Sc. Agriculture and wanted to set up a business of oil expeller in the shop in dispute. This application was rejected by the Prescribed Authority but has been allowed on appeal by the 3rd respondent, the Additional District Judge, Allahabad. The petitioner has challenged this order in the present writ petition.

2. The main contention raised by the learned counsel for the petitioner is that the Additional District Judge has not considered the comparative needs of the petitioner and the landlords and, as such, his order is bad in Law. It has further been contended that the District Judge has also not given due consideration to the findings recorded by the Prescribed Authority that the petitioner had acquired goodwill in respect of the shop in question. He has relied upon a decision in Bechan Ram v. State of U. P. (Civil Misc. Writ No. 1575 of 1971 (All.) decided on 13-9-1974) where I have held that in the case of a business premises it is necessary that the tenant's goodwill, if any, should also be taken into consideration. In the instant case, I find that the learned District Judge has considered the question of goodwill. His view that loss of goodwill can be compensated under the Act by payment of 2 years' rent may or may not be correct, but other facts found by him show very clearly that the petitioner would not suffer loss of goodwill, if he has any. It has been found that the petitioner has already built a house in Mutthiganj area, which is at a short distance from the shop in dispute and is in the same locality. In such a case it cannot be said that the petitioner would suffer loss of goodwill if he is asked to shift to his own newly built house. It has also been found that the petitioner has another rented accommodation where he is residing as well as carrying on his business of 'Gur Ki Sev' and 'Ramdana Ki Laiya'. The learned Judge has also found that the size of the petitioner's family is very small consisting of himself and his wife and he has an alternative accommodation where he can reside as well as carry on his business. He has relied upon Rule 16 (2) (b) of the Rules framed under the Act which provides that a tenant having suitable alternative accommodation to shift his business without substantial loss furnishes greater justification for allowing the landlord's application for release.

3. The release application was based upon Rule 16 (2) (d), which provides that where a son of the landlord has completed his technical education after the building was originally let out and is not employed in Government -service and wants to engage in self-employment his need shall be given due consideration. Now it is not denied that the son of one of the landlords has obtained a degree in M. Sc. (Agriculture), which is a technical qualification and the business of extraction of oil, which, he intends to open, is directly connected with his technical education. Having regard to the fact that the petitioner had a suitable alternative accommodation and there would be no loss for goodwill, the requirements of Rule 16 (2) (d) would naturally tilt the balance in favour of the landlord. Of course Rule 16 (2) (d) does not contain an overriding consideration in the sense that if that rule is applicable all other considerations go into the background. For example if a person is carrying on business at a particular place since long, which is his only source of income and no alternative accommodation is available where he can shift his business, his need may be given preference over the need of the Landlord even if Rule 16 (2) (d) applies. In such a case the landlord may be asked to search some other place for his son. But such is not the situation in the instant case. The petitioner has a house of his own and has also a rented accommodation so that he can easily reside as well as carry on his business in the alternative accommodation available to him.

4. An attempt has been made by the petitioner to counteract the finding of the learned Judge by saying that he had sold away his house and, as such the alternative accommodation had disappeared. The order of the District Judge is dated 28th August, 1974 and the house is alleged to have been sold on 1st November, 1974. I am afraid, in such circumstances the petitioner cannot be allowed to take advantage of the sale of his house which he made voluntarily and not under any legal compulsion. The legality of the order of the District Judge has to be judged with reference to the circumstances as they existed at the time the order was passed. At that time the newly built house of the petitioner was very much there. This Court exercising jurisdiction under Article 226 of the Constitution cannot act like a court of appeal and take into consideration the subsequent events.

5. In the result the petition fails and is dismissed with costs.


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