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Satish Chandra Agarwal Vs. Hariraj Saran Agarwal and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Tenancy
CourtAllahabad High Court
Decided On
Judge
Reported in2009(4)AWC4128
AppellantSatish Chandra Agarwal
RespondentHariraj Saran Agarwal and ors.
DispositionPetition allowed
Cases ReferredBega Begum and Ors. v. Abdul Ahmed Khan
Excerpt:
.....the release application who are in the like business of the petitioner are having godown and workshop besides the shop. the respondent-tenant has failed to produce any documentary evidence in support of his plea of denial. 15. the above facts do demonstrate that the respondent-tenant has failed to produce the evidence in his possession, which he could have easily produced and thus, a case for drawing adverse inference against him is made out. firm prem machinery and company (2000) 1 scc 679, is an authority for the proposition that the landlord is the best judge of his own requirement for residential or commercial purpose and has complete freedom in the matter. if a tenant has failed to make any attempt to take an alternative accommodation, finding of comparative hardship, will..........during these years. on the other hand, the petitioner landlord is carrying on his business from a shop (property no. 1) owned by him and has taken a shop on rent at arya samaj road (property no. 2) and licensee of an accommodation at mahmood khan sarai, (property no. 3) referred in paragraph 14 of the writ petition. the case of the respondent tenant as delineated above is that the petitioner landlord had got four accommodations out of which the fourth accommodation which was in the shape of three shops, has fallen down and only three accommodations are left and two of them do not belong to the petitioner landlord admittedly, he being a tenant/licensees and only one accommodation is owned by him, wherein he is carrying on business of selling agricultural implements. the petitioner.....
Judgment:

Prakash Krishna, J.

1. The petitioner is the landlord of a house situate in mohalla Ther, Sambhal, district Moradabad of which the respondent is a tenant on a monthly rent of Rs. 70. The petitioner, who is carrying on the business of iron and hardware and agricultural implements, applied for the release of tenanted accommodation on the ground that it is bona fide required for the purposes of a godown wherein, he can store pipes about 21 ft. in length, fodder machines and other agricultural implements. He is suffering irreparable loss on account of paucity of suitable accommodation. Besides above, it was further pleaded that his family consists of himself, his wife and three sons, who were aged about 18 years, 16 years and 9 years when release application was filed in the year 1986. Presently, he is running his business from a shop of 11 ft. x 30 ft. which can be used only for trading purposes. It was further pleaded that the persons mentioned in paragraph 7 of the release application who are in the like business of the petitioner are having godown and workshop besides the shop. On the above premises, the release of the disputed shop was sought for under Section 21 (1)(a) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act No. 13 of 1972, (hereinafter referred to as the 'Act').

2. The said release application was contested by the contesting respondent herein, on the ground that the need as set out by the petitioner in the release application is not bona fide and genuine and he would suffer greater hardship if ultimately the accommodation in dispute is released as the tenant has no alternative accommodation to shift his business. The tenant is carrying on the business of supply of electrical goods, fittings and decorative bulbs etc. to the shops, offices etc. He has valid licences for such supplies from the municipal department also. He is engaged in the business since year 1972 and using the disputed premises for storing electrical materials.

3. The parties led evidence in support of their respective cases.

4. The release application was dismissed by the prescribed authority by the order dated September 21st of 1990, on the ground that the need of the landlord is not bona fide and genuine. He has got a shop on rent at Arya Samaj Road measuring 10 ft. x 22 ft. the existence of which was suppressed and was not disclosed in the release application which indicates the lack of bona fide requirement on the part of the landlord. Further, the landlord has taken a property on rent from Smt. Beena Agrawal, who is landlord's wife's sister and Smt. Beena Agrawal does not require the said accommodation presently and the said accommodation which is about 339 sq. mtrs. is sufficient to fulfil the need of the landlord. It was also held that the landlord may convert a part of the residential portion into a godown or a workshop. The said order was confirmed in Rent Control Appeal No. 58 of 1990 by the judgment dated March 30, 1991 of the appellate court in appeal.

5. Heard learned Counsel for the parties and perused the record. There appears to be no dispute between the parties that at the most the landlord has got the following four accommodations as mentioned in para 14 of the writ petition. For the sake of convenience, the contents of para 14 of the writ petition are reproduced below:

14. That the accommodation which have been found with the applicant are as below:

(1) A shop in mohalla Mahmood Khan Sarai, owned by applicant.

(2) A shop on Arya Samaj road, on rent.

(3) An accommodation in Mahmood Khan Sarai belonging to Smt. Beena Rani Agrawal.

(4) Accommodation to the west of premises in dispute.

6. The reply of the aforesaid paragraph No. 14 has been given in paragraphs 13 and 14 of the counter-affidavit. In para 13 of the counter-affidavit it has been mentioned that the contents of paragraph 14 of the writ petition need no reply. However, in para 14 of the counter-affidavit the respondent tenant has set out his stand with respect to the aforesaid four properties. So far as the property No. 1, which is a shop, in mohalla Mahmood Khan Sarai is concerned, it is not in dispute between the parties that the said shop is owned by the landlord, wherein presently he is carrying on the business of selling agricultural implements etc.

7. So far as the property No. 2 is concerned, admittedly, this is a shop which is on rent with the petitioner landlord. In reply, in para 14 of the counter-affidavit it has not been disputed by the respondent tenant that the present petitioner landlord is the tenant of the said shop. The only plea raised is that the factum of the said tenanted shop was not disclosed in the release application and thus there was a deliberate attempt on the part of the landlord to conceal the said shop which was brought to the notice of the prescribed authority by the respondent tenant. Be that as it may, the most crucial fact is that it is nobody's case that the present landlord petitioner is the owner of the said shop. The occupancy of the present landlord in the capacity of a tenant is itself sufficient indicative of the fact that the petitioner landlord needs additional accommodation to run his business. Had it been not so, no prudent person would have taken a shop on rent. The courts below were, therefore, not justified in drawing an adverse inference regarding the concealment and non-disclosure of the said shop in the release application. A landlord is expected to disclose only such properties, which are in his possession as owner or permanently settled with him as lessee or mortgagor. Moreover, it has not been found by the courts below that the said shop fulfils the specific need, i.e., the need for godown and workshop of the landlord for which the release of the disputed accommodation has been sought for. Therefore, the property No. 2 referred to above, is not relevant for the purposes of consideration of the question of bona fide need of the landlord.

8. Now, coming to the property No. 3, it is an accommodation in Mahmood Khan Sarai. The said accommodation, is also not owned by the petitioner landlord. It belongs to Smt. Beena Rani Agrawal, who happens to be landlord's wife's sister. It is a residential accommodation and the case of the landlord is that he is using the said accommodation for the time being as a tenant. Therefore, the said accommodation cannot be taken into consideration for the bona fide need of the landlord.

9. In Mrs. Meenal Eknath Kshirsagar v. Traders and Agencies and Anr. : AIR 1997 SC 59, relied upon by the learned Counsel for the petitioner, it has been held that the possession of a licensee is precarious and cannot be considered as suitable alternative accommodation. Thus, where in a suit for eviction filed on ground of bona fide requirement of landlady the husband of the landlady was in possession of another flat as licensee, it would not disentitle the landlady from getting decree of eviction. Applying the above ratio to the facts of the present case, it is but obvious that the accommodation No. 2, i.e., the shop at Arya Samaj road and the accommodation in Mahboob Khan Sarai cannot be taken into consideration to disentitle the petitioner landlord to get the accommodation in question released in his favour.

10. So far as the property No. 4 is concerned, it was in the shape of three shops to the west of the premises in dispute. The case of the petitioner landlord is that these three shops were very small in dimension and have fallen down to earth with the passage of time as a result of misuse of the accommodation in dispute by the respondent tenant. In the tenanted accommodation the respondent tenant has installed generator set etc. and due to vibrations of running of generator sets, the shops have fallen down. It was earlier forcibly argued that in any case the need of the petitioner landlord could be fulfilled by these three shops which was hotly contested by the learned Counsel for the petitioner who submitted that these shops are no longer in existence. The matter was adjourned to enable the learned Counsel for the parties to obtain necessary instructions in this regard. The following order was passed on 17th of April, 2009:

During the course of the argument, the learned senior counsel appearing for the respondents points out that the petitioner-landlord has got accommodation as described in Clause (d) of paragraph 15 of the writ petition.

The learned Counsel for the petitioner-landlord submits that the said accommodation is not suitable for his godown purposes for which the release was sought. A suggestion was given by the Court that the said accommodation may be given to the respondent-tenant in exchange of the disputed accommodation.

The parties may obtain necessary instructions in this regard. In the meantime, the respondents may also file a supplementary counter-affidavit particularly reply to the paragraph 4 of the rejoinder-affidavit.

List on 24.4.2009.

11. The matter was taken upon 24th of April, 2009. Learned Counsel for both the parties agreed on the instructions given to them by the respective parties that the property No. 4 has fallen down since long and there is no such accommodation presently available. The order-sheet dated 24.4.2009 reads as follows:

When the matter was taken up, it was agreed by both the counsel for the parties that the property No. 4 has fallen down since long and there is no such accommodation presently available.

As prayed, list on 30.4.2009.

On or before that date, reply to paragraph 4 of the rejoinder-affidavit may be filed.

12. The matter was heard again, the learned senior counsel for the respondent tenant could urge only this much that when the impugned orders were passed, these shops were in existence and as such the impugned orders do not suffer with any infirmity. It is not so. The case of the petitioner landlord since very inception is that he needs such accommodation which can be used as godown and workshop wherein he can store long pipes, agricultural implements such as fodder machine etc. which requires big space, also space for workshop. According to the landlord since the shops as then existed, did not fulfil his requirement, he did not occupy them and the courts below were not justified to treat these shops as an alternative accommodation. The said argument, looking to the nature of the need as disclosed in the release application has got substance. The accommodation should not only be available but it should also be suitable to the specific need of the landlord as set out in the release application. An existing accommodation which does not fulfil the requirement of a landlord, cannot be said as an alternative accommodation. The suitability of the accommodation should be judged from the point of view of the landlord's specific need. However, a landlord cannot arbitrarily reject an available accommodation on flimsy ground that it is not suitable. If such a question arises, Court can always consider whether an existing accommodation is suitable or not. In any view of the matter, since these shops are no longer in existence as jointly agreed by the parties, they cannot be taken into consideration for the need of the landlord.

13. There is another aspect of the case. In para 4 of the rejoinder-affidavit of the petitioner-landlord, it was pointed out that the respondent tenant has purchased or got possession of four properties. They are as follows:

1. A shop measuring 7 ft. x 35 ft. situated at Mohalla M. K. Sarai main Bazar, Sambhal, wherein the tenant is running a business of electrical goods and mobile phones from under the name and style of Agarwal Communications and Electronics. In reply, it has been stated by the respondent-tenant that the said property does not belong to him but belongs to Smt. Renu Agrawal who is his daughter-in-law being wife of Vineet. Vineet is running his business from the said shop. The actual dimension of it is 7 x 25'.

2. The respondent-tenant is running a business of ready made garment and cloths from another property measuring 35 ft. x 25 ft. situate in mohalla Ther, Arya Samaj Road, Sambhal under the name and style of Sapna Garments and Boutique Centre. The said business is being carried on by the respondent alongwith his son. In reply it has been stated that the property belongs to his brother-in-law Shri Laxman Prasad although no document in support thereof has been enclosed. It has been stated that his son is running his independent business from the said shop and he has no concern.

3. The property measuring 103.94 sq. mtrs. at Radha Krishna Market has been purchased by the tenant respondent by means of a sale deed dated 19.5.2008 from its owner Dr. Atul Mehrotra. In reply, the respondent has stated that it is only in the form of an open piece of land and the said open piece of land stands in the name of his son Navneet.

4. A business of ladies garments and gifts under the name and style of Kamakhya Agarwal Boutique from a shop situated at mohalla Ther, which is owned by temple Wan Khandan, is being run by the respondent No. 4 with the assistance of his wife and son. In reply, only this much has been stated by the respondents that it is a small shop from where his wife Smt. Alka Agrawal runs a small Boutique for her independent income.

14. From the narration of the above facts, this much, at least, is clear that the respondent-tenant or his sons or daughter-in-law have purchased the properties during the pendency of the these proceedings. The case of the petitioner landlord is that these properties stand in the name of the respondent-tenant which has been denied. The respondent-tenant has failed to produce any documentary evidence in support of his plea of denial. The respondent-tenant could have filed the documents in support of his plea that the properties mentioned above do not belong to him.

15. The above facts do demonstrate that the respondent-tenant has failed to produce the evidence in his possession, which he could have easily produced and thus, a case for drawing adverse inference against him is made out. It follows that the respondent-tenant has acquired considerable properties during these years. On the other hand, the petitioner landlord is carrying on his business from a shop (Property No. 1) owned by him and has taken a shop on rent at Arya Samaj Road (Property No. 2) and licensee of an accommodation at Mahmood Khan Sarai, (Property No. 3) referred in paragraph 14 of the writ petition. The case of the respondent tenant as delineated above is that the petitioner landlord had got four accommodations out of which the fourth accommodation which was in the shape of three shops, has fallen down and only three accommodations are left and two of them do not belong to the petitioner landlord admittedly, he being a tenant/licensees and only one accommodation is owned by him, wherein he is carrying on business of selling agricultural implements. The petitioner landlord applied for the release of the disputed shop in the year 1986 and sufficient time has elapsed since then. In the meantime, the landlord's sons who were minors have become major by now. It has been stated in para 6 of the rejoinder-affidavit that Mr. Mohit Kumar is running the business of testing the purity of Menthol oil from the tenanted shop, at Arya Samaj Road (property No. 2).

16. Taking into consideration the entire facts and circumstances and also the law as laid down by the Apex Court in the case of Joginder Pal v. Naval Kishore : AIR 2002 SC 2256, wherein it has been held that the Legislature is fair to the tenants and to the landlords-both. The Courts have to adopt a reasonable and balanced approach while interpreting Rent Control Legislations, on the facts of the present case, the findings recorded by the two courts below that the need of the landlord is not bona fide and genuine, cannot be allowed to stand. The said finding is reversed being perverse and against the material on record. The two courts below have approached the issue of bona fide need with a wrong angle. It would be travesty of justice to hold on these facts, which are no longer in dispute and are almost admitted that the need of the petitioner landlord is not bona fide.

17. Ragavendra Kumar v. Firm Prem Machinery and Company : (2000) 1 SCC 679, is an authority for the proposition that the landlord is the best judge of his own requirement for residential or commercial purpose and has complete freedom in the matter. In this authority the Apex Court has relied upon its earlier judgment in Prativa Devi v. T.V. Krishnan : (1996) 5 SCC 353.

18. In Joginder Pal v. Naval Kishore Behal : (2002) 5 SCC 397, the Apex Court with a reference to the provisions of East Punjab Urban Rent Restriction Act, on the question of bona fide need, after surveying its earlier pronouncement, has held that the requirement of a major son and a coparcener in a joint Hindu family intending to start a business is the requirement of the landlord himself as was held in B. Balaiah v. Chandoor Lachaiah : AIR 1965 AP 435. The words 'for his own use' must receive a wide, liberal and useful meaning rather than a strict or narrow construction. It has been further held that while casting its judicial verdict, the Court shall adopt a practical and meaningful approach guided by the realities of life.

19. In Mst. Bega Begum and Ors. v. Abdul Ahad Khan and Ors. : (1979) 1 SCC 273, it has been held that rent control laws must be construed reasonably. They should be interpreted in such a way as to achieve the object of enabling landlord to evict tenant where the statute grants such right in favour of landlord.

20. It has been held by the Apex Court in the case of Akhileshwar Kumar and Ors. v. Mustaqim and Ors. : JT 2002 (10) SC 203 : 2003 (3) AWC 2545 (SC), that landlord has the right of choosing the accommodation which would be reasonable to satisfy his requirements. In Sarla Ahuja v. United India Insurance Co. Ltd. : AIR 1999 SC 100. it has been held by the Apex Court that the fact that landlady was in possession of another flat in another city is not a ground to disentitle her to seek recovery of possession of tenanted premises.

21. Viewed as above, it is held that the need of the petitioner landlord for release of the tenanted accommodation, which is being used by the respondent tenant as a godown is bona fide and genuine. It by stretch of any imagination cannot be called as mere desire or fanciful. The fact that the petitioner landlord is himself a tenant or a licensee of other two accommodations are themselves proof of the bona fide need of the petitioner landlord for the purposes of the present case.

22. Coming to the question of comparative hardship, as has been noted hereinabove, the tenant-respondent has acquired number of properties either in the name of his wife or daughter-in-law and his son, which shows that the respondent-tenant is a man of means. Sambhal is a small town of district Moradabad. In absence of any contrary material it can be assumed that the property can be taken either on rent or by way of sale deed. The Supreme Court in the case of Bega Begum and Ors. v. Abdul Ahmed Khan : AIR 1979 SC 272. has held that burden equally lay upon a tenant to show that no alternative accommodation is available to him. If a tenant has failed to make any attempt to take an alternative accommodation, finding of comparative hardship, will necessarily go against such tenant. Here, there is no iota of evidence to show that the respondent tenant during all these years made any attempt to get an alternative accommodation, but failed. He, as demonstrated above, acquired number of other properties. On the other hand, the petitioner landlord will suffer greater hardship if the release application is rejected as he has no accommodation except the disputed accommodation for the purposes of storage of agricultural implements etc. and for the workshop. The respondent tenant could not point out any accommodation, which may fulfil the above need of the petitioner landlord.

In the result, the writ petition succeeds and is allowed. The release application filed by the petitioner landlord stands allowed and the impugned orders dated 21.9.1990 and 30.3.1991 are hereby quashed. However, it is provided in view of proviso to Section 21 (1)(a) of the said Act that the petitioner landlord shall deposit a sum of Rs. 1,680 towards damages within a period of two months. The said amount can be withdrawn by the respondent-tenant.

23. Time upto 30th September, 2009 to vacate the disputed accommodation is granted to the respondent-tenant provided that he files an undertaking on affidavit before the prescribed authority within a period of one month that he will vacate and hand over the peaceful vacant possession of the disputed accommodation to the petitioner landlord, on or before 30th September, 2009. If the respondent-tenant fails to handover the peaceful vacant possession to the petitioner landlord, the petitioner landlord shall be free to put the release order in execution before the prescribed authority.

With the aforesaid observations, the writ petition succeeds and is allowed.


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