Heard Sri Pramod Kumar Jain, senior counsel assistant by Sri Saurabh Jain, counsel for tenant petitioners, Sri M.K. Gupta appearing for the landlord respondent and perused the record.
This petition challengs the validity and correctness of the judgment and order dated 25.10.2010 passed by the Prescribed Authority/Civil Judge (S.D.), Pilibhit in P.A. case no. 3 of 1999 as well as judgment and order dated 13.1.2011 passed by the appellate authority/Additional District Judge, Pilibhit dismissing P.A. Appeal No. 26 of 2008, appended as annexure no. 1 and 2 to the writ petition.
The impugned orders have been challenged on the ground that while dismissing the appeal, the appellate court has not taken notice of the judgment in respect of another shop under the tenancy of Sri Satish, against whom similar another release application was filed on same grounds. It is stated that in the release application filed against Sri Satish, the court had recorded a finding that landlord respondent is aged about 70 years and it is not possible for him to carry on trade, as such his need was not bonafide. According to the counsel for petitioner, this aspect of the matter has been ignored by both the courts below. It is submitted that not only this, the courts below have also not looked into this aspect that the landlord respondent had four shops of same size i.e. 9" X 18" and after purchase of the property, first shop was got vacated by the landlord from Aslam, tenant in that case, and thus the element of bonafide need stood satisfied on vacation of shop by Aslam. It is also submitted that shop under tenancy of the petitioner is not adjacent to the shop which was under tenancy of Aslam and there is another shop measuring 9" X 18" feet in between the two shops i.e. the shop under tenancy of the petitioner and the shop vacated by Aslam.
Contention of the counsel for petitioner is that if the petitioner's shop had been adjacent to the shop under tenancy of Aslam, then it could be said that landlord respondent wants to enhance the size of the shop, but that was neither the case nor the position at the spot and in fact the respondent landlord is not occupying the property after allotment i.e. the shop which was under tenancy of Aslam in view of statement made by him in the proceedings under section 21(1)(a) of U.P. Act No. 13 of 1972, and in view thereof, release application filed against the petitioner was not maintainable.
Per contra, Sri M.K. Gupta appearing for the landlord respondent, has argued that it was never case of the landlord that he required two additional shops and would enlarge the area of the shop for establishing his business by demolition of partition wall between the two shops. According to him, case of the landlord was that he required two shops for the business i.e. for establishing Aata chakki, Dhan kutti machine and Expeller which cannot be done in one shop measuring 9" X 18 feet as some additional space would be required for storage of bye products and working space, hence two shops were required for the purpose.
It is vehemently argued by the counsel for respondent landlord that age can never be a factor to repel contention of bonafide need as the business is to be done through servants and only investment is to be made by the landlord. In this regard, he has relied upon decision of this Court rendered in Jai Raj Agarwal Vs. Bhola Nath Kappor and others ( 2005(3) ARC 417).
In that case also, the landlord after retirement wanted to do cloth business and also to settle his adopted son in business. In these circumstances, it was held that even at the age of 76 years, one can supervise the business and the need for the landlord for starting business, was bonafide and has to be considered.
In the instant case also, the landlord has retired from service and as has been held in a catena of decisions, his need to settle himself in business to augment his income, has to be considered on the premises of bonafide need.
Learned counsel for the respondent has then relied upon findings of fact recorded by the courts below to the effect that petitioner no. 7- Ram Pratap Jaiswal has acquired a shop during pendency of the proceedings and as such even though the prescribed authority in the case of Sri Satish illegally held need of the landlord to be not bonafide, yet in the present case the tenant petitioner has to establish his bonafide need for the shop under his tenancy. He has relied upon the judgment rendered in Shiv Singh Chak Vs. Smt. Baby Jain ( 2007 (66) A.L.R.-134), wherein it has been held that hardships of the tenants ends if any member of his family has acquired or constructed a shop.
It is submitted by the counsel for landlord respondent that earlier the shop in question was under tenancy of father-in-law of petitioner no. 7- Ram Pratap Jaiswal and upon his death, the tenancy devolved upon his daughter Sankari Devi (since deceased) wife of Ram Pratap Jaiswal apart from other heirs. After death of Smt. Sankari Devi, the tenancy has devolved upon her husband petitioner no. 7- Ram Pratap Jaiswal and petitioner no. 8 & 10; that in subsequent development during pendency of the proceedings, Ram Pratap Jaiswal has acquired a shop of his own, hence he has plead and establish his bonafide need for the shop in question.
From the judgment and order passed by the Prescribed Authority which has been confirmed by the appellate court, it is apparent that the authority has recorded a finding of fact that space of one shop vacated by Aslam, is too small for running the business of Aata chakki, Dhan kutti machine and Expeller by the landlord. Moreover, there is only one intervening shop in between and in my opinion the business can be established in two different shops with ample working and storage space.
Findings recorded by the Prescribed authority, are thus :
^^foi{khx.k dh vksj ls eq[; rdZ ;g fn;k x;k gS fd izkFkhZx.k ds ikl ,d vU; nqdku tks fd muds }kjk vlye ls [kkyh djk;h x;h gS] miyC/k gSA bl laca/k esa izkFkhZx.k dh vksj ls rdZ fn;k x;k gS fd og tks viuk O;olk; vkVk pDdh] Lisyj] /kku dqV~Vh e'khu dk djuk pkgrs gSa mlds fy, fdjk;snkj vlye ls [kkyh djk;h x;h nqdku NksVh gS mUgsa vf/kd txg dh vko';drk gSA vr% og iz'uxr nqdku [kkyh djkuk pkgrs gSaA mHk; i{kksa esa ls fdlh Hkh i{k }kjk izkFkhZx.k ds ikl [kkyh nqdku dh dksbZ ukirksy vkfn nf'kZr ugha dh x;h gS fdlh voLFkk esa izkFkhZx.k ds bl rdZ ij fo'okl fd;k tk ldrk gS fd vlye ds }kjk [kkyh dh x;h nqdku NksVh gS rFkk og muds }kjk izLrkfor O;olk; ds fy, mi;qDr ugha gS rFkk og fcuk iz'uxr nqdku [kkyh djk;s viuk O;olk; izkjEHk ugha dj ldrs gSaA ;g lkekU; tkudkjh dk fo"k; gS fd vkVk pDdh] Lisyj o /kku dqVVh e'khu vkfn ds dk;Z ds fy, vf/kd cM+h nqdku dh vko';drk gksrh gSA bl laca/k esa izkFkhZx.k dh vksj ls fn;s x;s bl rdZ dks Hkh Lohdkj fd;k tk ldrk gS fd muds }kjk izLrkfor O;olk; esa Hkwlh ,oa vU; lkeku dks Hk.Mkfjr djus gsrq mUgsa ,d vfrfjDr LFky dh vko';drk gksxh ftls og iwoZ esa [kkyh nqdku ls iwjk dj ldrs gSaA ;g rF; i=koyh ij fl) ugha gS fd tks vU; nqdku [kkyh djkus ds laca/k esa izkFkZuk&i= izLrqr fd;k x;k Fkk og fujLr gks pqdk gSA tc fd bl fookfnr nqdku rFkk nwljh vU; nqdku ds laca/k esa tks izkFkZuk i= izLrqr fd;k x;k Fkk mlesa ,d gh izdkj ds dk;Z fd;s tkus dh ;kpuk izkFkhZx.k dh vksj ls dh x;h gS tc fd izkFkhZx.k dh vksj ls izLrqr ,d vU; izkFkZuk&i= fujLr gks pqdk gS rc ;g ekuk tk ldrk gS fd izkFkhZx.k dh nqdku dh vko';drk vHkh Hkh fo|eku gSA foi{khx.k dh vksj ls ,d rdZ ;g fn;k x;k gS fd izkFkhZx.k }kjk /kku dqV~Vh] vkVk pDdh o Lisyj e'khu vkfn ds lEcU/k esa lacaf/kr foHkkxksa ls vukifRr vkfn izLrqr ugha dh x;h gS] lkFk gh iz'uxr LFkku mijksDr O;kikj gsrq mi;qDr ugha gS] u gh izkFkhZx.k cw<+s O;fDr gSaA vr% mudh vko';drk LokHkkfod ,oa ln~Hkkoh vko';drk ugha gSA bl fcUnq ij foi{khx.k dh vksj ls fof/k O;oLFkk jke fd'ku nkl cuke iape vij ftyk tt] fctukSj ,oa vU; ,0vkj0 lh0 1994 ¼2½ ist&429 izLrqr dh x;h gSA - - - - - -
izkFkhZx.k dh vksj ls bl ekeys esa ,d rdZ ;g fn;k x;k gS fd foi{kh la0 [email protected] jke izrki tk;loky }kjk ,d nqdku o"kZ 1999 esa [email protected]& :i;s esa dz; dj yh x;h gS vkSj vc mUgsa iz'uxr nqdku dh dksbZ vko';drk ugha gSA bl laca/k esa izkFkhZx.k dh vksj ls 'kiFk&i= tequk izlkn dkxt la0 29&x ds izLrj 4 ,oa vfrfjDr 'kiFk i= dkxt la- 31 x ds izLrj 4 esa mijksDr rF; vafdr fd;s x;s gSaA lkFk gh lwph dkxt la- 35 x ls dfFkr fodz; i= dh lR; izfrfyfi izLrqr dh x;h gS ftlesa jke izrki tk;loky foi{kh la- [email protected] ds i{k esa nqdku dk fodz; i= fu"ikfnr gksuk vafdr gSA mijksDr nqdku ds laca/k esa foi{kh jtuh'k tk;loky }kjk izLrqr dkmUVj 'kiFk&i= ds izLrj 22 esa ;g vafdr fd;k x;k gS fd ujs'k tk;loky }kjk mijksDr nqdku dz; dh x;h gSA bl izdkj ;g rF; i{kdkjksa dks Lohd`r gS fd ,d vU; nqdku foi{kh la- [email protected] 1 rk [email protected] 3 es ls fdlh ds }kjk dz; dh x;h gSA ;|fi iathd`r fodz; i= foi{kh la- [email protected] 2 ds i{k esa dz; gksuk vafdr fd;k x;k gSA bl laca/k esa ;g Li"V gS fd pkgs iz'uxr nqdku foi{kh la- [email protected] 3 }kjk dz; dh x;h gS vFkok foi{kh la- [email protected] 2 }kjk ;g fl) gS fd foi{kh la- [email protected] 1 rk [email protected] ds ikl ,d vU; nqdku miyC/k gS ,slh voLFkk esa vU; nqdku miyC/k gksus ij izkFkhZx.k dh okLrfod ,oa ln~Hkkoh vko';drk Lo;a gh fl) ekuh tk;sxhA bl laca/k esa izkFkhZx.k dh vksj ls izLrqr fuEu fof/k O;oLFkkvksa esa fn;s x;s er mYys[kuh; gSa%& ekuuh; mPpre U;k;ky; }kjk jkds'k dqekj tks'kh cuke ujsUnz dqekj ,oa vU; 2008 ¼70½ ,0,y0vkj0 ist&564 ¼lqizhe dksVZ½ esa ;g er izfrikfnr fd;k x;k gS fd fdjk;snkj ds ikl vU; oSdfYid LFkku miyC/k gksus ij fdjk;snkj dks fdjk;snkjh okyh lEifRr essa dCtk cuk;s j[kus dk dksbZ vf/kdkjh ugha gSA fof/k O;oLFkk f'ko flag pSd cuke Jherh csch tSus 2007 ¼66½ ,0,y0vkj0 ist&134 esa ekuuh; mPp U;k;ky;] bykgkckn }kjk ;g er izfrikfnr fd;k x;k gS fd fdjk;snkj ds ifjokj ds fdlh lnL; }kjk dksbZ vU; nqdku vkfn izkIr dj fy;s tkus ij fdjk;snkjh dh vko';drk lekIr gks tkrh gSA blh izdkj fof/k O;oLFkk izohu dqekj cuke czt Hkw"k.k 'kekZ ,oa vU; 2007 ¼67½ ,0,y0vkj0 ist 549 esa ekuuh; mPp U;k;ky; bykgkckn }kjk ;g er izfrikfnr fd;k x;k gS fd fdjk;snkj ds ifjokj ds fdlh O;fDr }kjk dksbZ oSdfYid Hkou izkIr dj ysus ij mls fdjk;snkjh okyh lEifRr ij dCtk cuk;s j[kus dh vuqefr ugha nh tk ldrh gSA fdjk;snkj mijksDr voLFkk esa Hkou Lokeh dh ln~Hkkoh vko';drk dh pSydsUt djus gsrq leFkZ ugha gSA i=koyh ij ;g rF; fl) gS fd jke izrki tk;loky foi{kh la- [email protected] 1 }kjk o"kZ 1999 esa ,d vU; nqdku dz; dj yh x;h gSa rFkk iz'uxr nqdku ij foi{kh la- [email protected] 1 o [email protected] }kjk gh fctyh ds lkeku dh nqdku fd;k tkuk foi{khx.k }kjk 'kiFk i= dkxt la- 32 x ds izLrj 16 esa vafdr fd;k x;k gS vkSj vc jke izrki tk;loky foi{kh la [email protected] 1 ds ikl ,d vU; nqdku miyC/k gksus ij mijksDr fof/k O;oLFkkvksa esa fn;s x;s er bl ekeys esa iw.kZ :i ls ykxw gksrs gSa rFkk mijksDr rF; fl) gks tkus ij Hkou Lokeh dh okLrfod ,oa lnHkkoh vko';drk ij vf/kd foLrkj ls fopkj fd;s tkus dh vko';drk ugha gSA** In so far as the release application filed against Sri Satish, another tenant in one of the four shops is concerned, suffice it to say that Satish had not purchased or acquired any vacant shop during pendency of the proceedings nor he had any other alternative shop, as such his case is different. In so far as the question of age is concerned, in view of law laid down by the Court in the case of Jai Raj Agarwal (supra), no further comment is required by the court in that regard.
Thus, from the perusal of the judgment it is apparent that landlord has a right to establish his business and his age would not be a bar in considering his bonafide need particularly when the tenant has acquired a shop of his own. In such circumstances, even the tenant has to establish his bonafide need for retaining the shop. This has neither been pleaded nor established by the tenant in the instant case. A tenant cannot suggest his landlord what business to do and whether the space required by him shall be sufficient or not. Once Ram Pratap Jaiswal ( petitioner no. 7) who himself has filed affidavit in the writ petition as tenant, has acquired a shop of his own in backdrop of the case that he and his son both had become tenant on the death of Smt. Sankari Devi, who inherited tenancy of her father, he cannot claim that the shop under his tenancy cannot be released because his son is in occupation of the said shop.
For all the reasons stated above, there appears to be no illegality or infirmity in the impugned orders. The petition has no force and is accordingly dismissed. No order as to costs.
Dt/-31.1.2011 SNT/