Tasleem Ahmad and Others Vs Smt. Sushila Devi and Others

Rakesh Tiwari, J.@mdashHeard counsel for the parties and perused the record.

2. Tenant Petitioner has filed this petition against judgment and order dated 6.11.2010 passed by the Additional District Judge, Court No. 7, Saharanpur, by which rent control appeal No. 18 of 2010 preferred by the landlord Respondent has been allowed.

3. Release Application No. 38 of 2009, u/s 21(1)(a) of U.P. Act No. 13 of 1972, was filed by the landlord Respondent setting up need of the shop in question for their son Tushar Goel. It was stated in the release application that they wanted to settle him in the business of readymade garments in the shop in question and that there are other shops of readymade garments in the vicinity, as such there is good scope of business in readymade garments for their son Tushar Goel.

4. The tenant Petitioner contested the case by filing his written statement stating that the landlord is doing business in the name and style M/s Goel Industries which is involved in manufacturing of accessories of bearing; that they have several shops in their possession and that landlords have also purchased one more house in Mohalla Tilak Nagar which can be used by them. Apart from above, it was also averred in the written statement that since the shop in question is the only source of livelihood of the tenant, release application of the landlord may be rejected as need of the landlord is not bonafide and the tenant Petitioner would suffer comparatively more hardships if release is ordered.

5. The Prescribed Authority vide its order dated 7.8.2010rejected the release application of the landlord holding that as there were several shops in possession of the landlord, his need for establishing the son in disputed shop was not bonafide.

6. Aggrieved by the aforesaid order, Rent Control Appeal No. 18 of 2010 was filed by the landlord Respondent. Alongwith application paper No. 6-Ga, certain documents were also filed by the landlord, to which reply was filed by the Petitioner.

7. The appellate authority after hearing the parties, came to the conclusion that from the documents on record, it was proved by the landlord Respondent that the shops which are said to be in his possession, were part of M/s Goel Industries and were being used by it and that there is no other vacant shop available in which their son Tushar Goel could be settled in the business of readymade garments and as such allowed the appeal by the impugned judgment.

8. Sri A.K. Singh, counsel for the tenant Petitioner, has vehemently argued that there were two vacant shops which are said to be in possession of the landlord and the Prescribed Authority after considering availability of these two shops, had rejected the release application and this finding of the prescribed authority has not been upset by the appellate authority.

9. Per contra, counsel for the Respondent landlord submits that from the documents on record, it is apparent that those two shops were used by them for the purpose of M/s Goyal Industries and hence it cannot be said that these two shops were vacant and were available to the landlord for settling their son Tushar Goel in the business of readymade garments.

10. After hearing counsel for the parties, it appears from the record that Respondent landlord had proved before the appellate court that finding of the prescribed authority with regard to the aforesaid two shops said to be vacant in his possession, was perverse, erroneous and against the material on record as the two shops in fact were being used by the landlord for his own purpose of M/s Goyal Industries and were not vacant and available for setting up business of readymade garments for Tushar Goel. It also appears from the perusal of impugned judgment that case of the Petitioner tenant was that there are other shops in the vicinity which are vacant and the same may be taken on rent by the landlord for settling their son Tushar Goel in business whereas contention of the landlord was that shops in the vicinity vacated by other tenants are also available to the tenant where the Petitioner can shift his business.

11. It also appears that the Petitioner tenant has his own three vacant shops in his possession being shop Nos. 73/2080, 73/2081 and 73/2081/1 in the main market of Saharanpur near Jama Masjid in which the tenant can conduct his business.

12. Thus, an irresistible conclusion can be drawn from the arguments of learned Counsel for the parties and from the record that the tenant Petitioner has his own three shops in main market of Saharanpur wherein he can conduct his business. This apart, he can also take other shops on rent which are available in the vicinity near Maharaj Singh Degree College and Masjid company bagh, where he can otherwise shift his business in case he does not want to shift his business in his own three shops aforesaid.

13. In the aforesaid facts and circumstances, the appellate authority has rightly come to the conclusion that there is no other shop available to the landlord for settling his son in the business of readymade garments and as the tenant Petitioner has his own shops, he can shift his business there.

14. The appellate authority while considering issue No. 1, has decided the question of bonafide need in favour of the landlord Respondent, thus:

fopkj.kh; fcUnq la[;k & 1

vkosndx.k @ vihykFkhZx.k dh vksj ls nkf[ky ''kiFk i= 17 }kjk lq''khyk esa dgk x;k fd vkosndx.k @ vihykFkhZx.k ds ikl dksbZ txg rq"kkj xks;y dks O;olk; djkus gsrq ugha gS tks lEifRr vkosndx.k @ vihykFkhZx.k ds ewfjl Lo thrsUnz dqekj }kjk fdjk;snkjku ls [kkyh djkbZ xbZ Fkh os vkosnd la[;k & 2 o 3 dh vko'';drk gsrq iz;ksx gksrh pyh vk jgh gS] ekSgYyk fryduxj lgkjuiqj esa tks xksnke [kjhnk gS] og vkosnd la[;k & 2 dh QSDVjh ds xksnke ds :i esa iz;ksx gks jgk gS] ;g xksnke u rks dkjksckjh txg esa gS vkSj u gh bldk iz;ksx nqdku ds :i esa dkjksckj djus gsrq fd;k tk ldrk gSA foi{khx.k dk dFku xyr gS fd rq"kkj xks;y bUMLV~h esa dk;Zjr gS] og vius firk ds lkFk dk;Z dj jgk gS] cfYd rq"kkj xks;y viuk vyx jsMhesV xkjesUV dk dkjksckj djuk pkgrk gS vkSj bl lEcU/k esa mlus yqf/k;kuk o fnYyh ds cktkjksa dk i;kZIr v/;;u o losZ{k.k fd;k gS rFkk og ch- ch-,- rd f''k{kk izkIr dj pqdk gSA dkxt la[;k & 20 @ 4 rq"kkj xks;y dh tUe frfFk dk izi= gS rFkk dkxt la[;k & 20 @ 5 ch- ch-,- dk izek.k i= gS] ftlls Li"V gS fd rq"kkj xks;y us ch- ch-,- dh f''k{kk izkIr dh gS vkSj og dkjksckj djus yk;d gSA blh izdkj dkxt la[;k&21 iquhr xks;y dk ''kiFk i= gS ftlesa dgk x;k fd rq"kkj xks;y vyx ls dkjksckj djuk pkgrk gSA xokg us ;g Hkh dgk fd iz''uxr nqdku ds ikl efLtn dEiuh ckx dh nqdkukr vDlj [kkyh gksrh jgrh gs o fdjk;s o p<+rh jgrh gS rFkk iz''uxr nqdku ds fudV gh egkjkt flag fMxzh dkyst dh vusdksa nqdkusa [kkyh iM+h gS tgka foi{khx.k ;fn pkgs rks nqdku vklkuh ls fdjk;s ij ys ldrs gS] blds vfrfjDr foi{khx.k dh viuh feyfd;rh rhu nqdkukr uEcj & 13 @ 2080] 13 @ 2081 o 13 @ 2081 @ 1 uxj lgkjuiqj ds eq[; cktkj fudV tkek efLtn lgkjuiqj esa gS ftuesa foi{kh viuk dkjksckj dj ldrs gSA foi{khx.k dh vksj ls tks ''kiFk i= fn;k x;k gs mlesa foi{khx.k dk dFku gS fd nqdku dk fdjk;k 1200 @ & #i;s izfrekg u gksdj dsoy 200 @ & #i;s ekgokj gS] ;gka ij fdjk;s dk fookn ugha gS cfYd ;gka ij ;g ns[kk tkuk gS fd D;k vihykFkhZx.k @ oknhx.k dh okLrfodrk ln~Hkkoh o lPph vko'';drk gS A

15. The appellate court while deciding issue No. 2 regarding comparative hardships in favor of the landlord has also taken note of the fact that even though vacant shops were available to him, the tenant Petitioner has not made any effort to shift his business there. Issue No. 2 has been decided by the appellate court thus:

fopkj.kh; fcUnq la[;k & 2

tgka rd rqyukRed dfBukbZ dk iz''u gS mHk; i{k dh lk{; ls ;g Li"V gS fd tgka ij fookfnr nqdku fLFkr gS] ogka ds vkl ikl cgqr lh nqdkus gS] tks le; le; ij [kkyh gksrh jgrh gSa vkSj ftuds laca/k esa foi{khx.k dk dFku gS fd vkosndx.k mu nqdkuksa esa vius iq= dks dkjksckj djk ldrs gSa] tcfd vkosndx.k @ vihykFkhZx.k dh Lo;a dh nqdku gS] tks iz''uxr gS] cktkj esa fLFkr gS],slh fLFkfr esa vkosndx.k fdjk;s ij nqdku ys] ;g lgh izrhr ugha gksrk cfYd foi{khx.k dh ;g ftEesnkjh Fkh fd os nkok nk;j gksus ds ckn tc mUgsa uksfVl feyk rks mUgsa okLor esa fdlh vU; LFkku ij nqdku ds fy;s dksf''k''k djuh pkfg;s Fkh vkSj mUgsa nqdku miyC/k gks tkrh] ijUrq iwjh i=koyh ij bl vk''k; dh dksbZ lk{; ugha gS fd foi{khx.k us nkok nk;jk ds ckn vU; fdlh oSdfYid nqdku dks ysus dk iz;kl fd;k gks 1 �2010�,,y vkj 33 lruke cuke iape vij ftyk tt y[kum,oa vU; esa ekuuh; mPp U;k;ky; us ;g fl)kUr izfrikfnr fd;k gS fd ;fn fdjk;snkj vkosndx.k @ vihykFkhZx.k }kjk fueqZfDr izkFkZuk&i= fn;s tkus dh lwpuk feyus ds i''pkr] og oSdfYid :i ls fdjk;snkjh gsrq vU; nqdku ds fy;s dksf''k''k ugha djrk gS rks rqyukRed dfBukbZ fdjk;snkj dh u gksdj vkosndx.k dh gksxhA cktkj esa oSdfYid fdjk;s dh nqdku ds fy;s iz;kl djrs ysfdu mUgksaus,slk ugha fd;k gS] vr% rqyukRed dfBukbZ vkosndx.k dh T;knk gS vkSj bl rF; dks fo- voj U;k;ky; us u ekudj rF;kRed,oa fof/kd =qfV dh gS D;ksafd vkosndx.k dh vius LokfeRo dh nqdku cktkj esa miyC/k gS os nwljh nqdku ysus dk iz;kl D;ksa djsaxsA vr% ;g fopkj.kh; fcUnq la[;k & 2 vkosndx.k @ vihykFkhZx.k ds i{k esa rFkk foi{khx.k ds fo:) fu.khZr fd;k tkrk gS A

16. For the reasons that tenant Petitioner has his own three shops where he can shift his business and that he has not made any effort to take any other shop on rent which are vacant in the vicinity, it cannot be said that he has any need of the shop in dispute or would suffer greater hardships than the landlord in case he is ordered to vacate the premises in dispute. No illegality or infirmity has been shown to have been committed by the appellate authority while allowing the appeal by setting aside the order of the prescribed authority.

17. In the facts and circumstances stated above, the judgment and order passed by the appellate authority is justified and the writ petition is liable to be dismissed.

18. At this stage, counsel for the Petitioner has prayed for some reasonable time to vacate the shop in question. Considering the fact that he has three vacant shops of his own and there are other shops available in the vicinity, one month''s time is allowed to the Petitioner to handover peaceful vacant possession of the shop in question to the landlord.

19. The writ petition is accordingly dismissed.