1. Since the point involved in these three writ petitions are one and the same, they are taken up together for disposal by a common judgment and order.
2.These three writ petitions ( nos. 8497/11, 8487/11 and 8392/11) are directed against the judgement and orders dated 12.1.2011 passed in P.A. appeal No. 13 of 2008 (Anil Kumar and another Vs. Sri Kishan Verma), P.A. Appeal No. 11 of 2008,(Brahm Kishor and another Vs. Srikrishna Verma) and P.A. Appeal No. 08 of 2008( Nand Kishor Verma Vs. Shri Krishna Verma) upholding the judgement and orders dated 4.8.2008, 5.8.2008 and 30.7.2008 passed by the Prescribed Authority/ Civil Judge,( Senior Division), Etawah in P.A. Case Nos. 03 of 2005, 11 of 2004 and 10 of 2004 respectively, whereby the release applications of the plaintiff landlord filed under section 21 (1)(a) of the U.P. Act NO. 13 of 1972 (hereinafter referred to as the 'Act') were allowed.
3. The WRIT - A No. - 8457 of 2011 ( Anil Kumar And Another Vs. Sri Kishan Verma), WRIT - A No. - 8487 of 2011 ( Braham Kishore And Another Vs. Shri Krishna Verma) and WRIT - A No. - 8392 of 2011 ( Nand Kishor Verma Vs. Sri Kishan Verma) are hereinafter referred to as the Writ A, Writ B and Writ C respectively.
4. The brief facts of the case are as follows:
5.Three separate applications under section 21 (1)(a) of the said Act were filed by the respondent landlord before the prescribed authority against the petitioners, inter alia, on the ground of bonafide need claiming himself to the owner and landlord of disputed shops No. 174, 175 and 176 situated in Mohalla Bazar Homeganj, Etawah, which were purchased by him from one Baldeo Singh Verma by a registered sale deed dated 20.6.2002. Shops Nos. 176, 174 and 175 were let out by the respondent landlord to Anil Kumar and others (in short "Petitioner No. A"), Brahm Kishor and another ( in short "petitioner No. B") and Nand Kishor Verma (in short "Petitioner No. C") respectively.
6. The said release applications were filed on the ground of bonafide need alleging that the respondent landlord has two sons namely Shrawan Kumar (already married) and Sant Ram, who was of marriageable age are unemployed and have no means of earning livelihood, therefore, the shops in dispute were urgently required for himself and for his two unemployed sons for carrying on business. All the 3 disputed shops were adjacent to each other, divided by a partition wall. It was further stated in the release application that the landlord after demolishing the disputes shops No. 176, 175 and 174 would build a one single shop, wherefrom the landlord and his sons would jointly carry on their business on a large scale. For the said purpose, building plan was approved by the concerned authorities.
7. The aforementioned release applications were contested by the petitioners Nos. A, B and C by filing their respective written statements alleging that the need of the landlord was neither bonafide nor genuine and they will suffer greater hardship in case they were evicted from the disputed shop. It was further, inter alia, stated that the respondent-landlord is a member of the Hindu Undivied Family having a large number of properties and carrying on a number of businesses.
10. Learned counsel for the petitioner submitted that the finding recorded by the courts below regarding bonafide need and comparative hardship is illegal, arbitrary and is based on complete misreading of the case and misconception of legal position relevant to the matter and has not considered the evidence on record in right perspective. Referring to the Income Tax Returns filed by the landlord and his sons, it was further submitted that a perusal of the said Income Tax returns clearly would reveal that the landlord was a member of the Hindu Undivided Family and was a very rich and prosperous person having large number of properties in his possession. It was further submitted that the respondent landlord was in possession of shops nos. 286, 341 at Gudri Bazar alloted by Nagar Polika Parishad, Etawah and one shop at Homeganj, Etawah.
11. It was further stated that apart from the aforementioned shops, the petitioner was also having plots and residential building. It was further submitted that the landlord has not disclosed the nature of the business which he and his sons propose to conduct from the disputed shops.
12. Per contra, learned counsel for the landlord-respondent submitted that the courts below have recorded a concurrent finding of fact that the need of the landlord is bonafide and genuine and comparative hardship is in his favour. He further submitted that the tenant has not made honest and sincere effort to find out any alternative accommodation during the pendency of the suit in spite of the fact that the release application was filed in the year 2005 and the matter is pending since last seven years. It was further submitted that the tenant petitioners have tried to mislead the court below by alleging that the Landlord in addition to the disputed shops also owns other commercial properties.
13. Heard the learned counsel for the parties and perused the record.
14. Three separate applications under section 21 (1)(a) of the Act were filed by the respondent landlord against the petitioners No. A, B and C on the ground of bonafide and genuine need alleging that landlord has two sons namely Sharwan Kumar (married) and Sant Ram of marriageable age are unemployed and have no means of earning their livelihood. It was further stated that since the size of the disputed shops were very small, therefore, the landlord would build one single shop after demolishing the disputed shops No. 176, 175 and 174 wherefrom the landlord and his sons would jointly carry on their business on large scale. The petitioners in their written statement alleged that the landlord who is a member of Hindu Undivided Family has got a large number of properties in his possession, and the landlord and his sons are carrying on their businesses independently.
15. The total size of the three shops No. 176, 175, and 194 was 337.25 Sq. feet, therefore, the respondent landlord proposed to construct one single shop after demolishing the aforementioned three shops. For the said purpose, building plan filed by the Landlord has been approved. Size of the shops in question and the approval of the building plan by the concerned authority has not been disputed by the petitioners. Petitioner tenant has alleged that the Landlord has three shops at Gudri Bazar, one shop at Homeganj, Etawah in addition to the disputed shops.
16. The court below on this aspect has recorded a finding that the shop No. 1 Gudri Bazar, Etawah was alloted by Nagar Mahapalika Parishad in favour of Ganga Prashad, deceased brother of the landlord, therefore, the landlord has got no concern with the said shops. Shops No. 286 and 341 were allotted by Nagar Mahapalika Parishad in favour of landlord and his son Shrawan Kumar respectively. These two shops were taken by them on rent and are not owned by the landlord and his son. Regarding shop at Home Ganj, Etawah. It was held that it was owned by the mother of the landlord wherein Kapil Singh (son of the deceased brother Ganga Prashad) is carrying on business along with his grand mother, therefore, the landlord has got no right or title in the said property. One shop which was purchased by the father of the landlord was in the tenancy of one tenant Dharm Narayan and after his death the tenancy was inherited by the sons of the tenant. It has also been held that sale deed dated 15.12.1983 executed by one Ram Ashrey was with respect to the open piece of land wherein the landlord has only one third share and the landlord cannot be compelled or directed to construct any shop over the said open piece of land.
17. In case of Rajesh Kumar Rahuja Vs. District Judge, Gorakhpur and others (2008) 72 ALR 288, it has been held by this Court that the landlord cannot be compelled to make construction on the open piece of land to satisfy his need.
18. It was further held that agricultural land which is situated in District Fatehpur, cannot be taken into consideration for deciding the release application. The appellate court has recorded a categorical finding on the basis of the material available on record that the landlord is not owning any other commercial premises except the disputed shops No. 176, 175 and 174 situated at Homeganj, Etawah. The finding recorded by the court below is based on record.
19. The main contention of the petitioner is that the landlord and his son Shrawan Kumar are in possession of the two shops at Gudri Bazar allotted by the Nagar Mahapalika Parishad. Therefore, the need of the Landlord is not bonafide.
20. The apex court in the case of Mrs. Meenal Eknath Kshirsagar Vs. M/s Traders and Agencies and another, AIR 1997 Supreme Court 59 has held that possession as licensee cannot be considered as suitable alternative accommodation. The shops numbers 286 and 341 have been alloted by Nagar Mahapalika Parishad and the landlord and his sons are merely a licensee of the said shops and cannot be compelled to carry on business from the said shops alloted by Nagar Mahapalika Parishad and has no title in the said property. Moreover it has been stated by the learned counsel for the Landlord that the shops are not all suited for their purpose as they are too small and are of wooden structure.
21. In the case of Regvendra Kumar Vs. Firm Prem Machiner and Company ( 200)1 SCC 679 , the Apex Court has held 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 judgement in Prativa Devi Vs. T.V. Krishnan : (1996) 4 SCC 353.
22. In the case of Bheeman Gonda Basan Vs.Mohd. Guru Sahib, 2003 (2) SLT 332, it has been held by the apex court that in case the need of the landlord is found to be bonafide and genuine, his application cannot be dismissed merely on the ground that he is a rich and prosperous person.
23. It is settled law that each and every adult person of the family has got a right to carry on independent business.
24. With regard to income tax returns it has been held that the income shown by the landlord and his sons are too meager and in case if the landlord starts some business temporarily during the pendency of the release application, that cannot be a ground to dismiss the release application. It has been held by the courts below that neither the landlord nor his sons own any other commercial premises except the disputed shops. It has been observed by the court below that in the financial year 2003-2004 as per the Income Tax Returns, the son of the landlord was found carrying on the business of sale of SIM Card of BSNL and old brass utensils showing total income of Rs.1,70565/- from the said business. It has been held by the court below that Sant Ram, son of the landlord during the pendency of the case had started the said business only temporarily for earning his livelihood, therefore the release application cannot be dismissed on this ground.
25. The apex court in the case of Jamila Khatoon and others Vs. Additional District Judge, Saharanpur and others, 2004 (54) ALR 62 had held that during the pendency of the application for release of the shop if any person starts some additional business for earning his livelihood, it cannot be said that his need set up for running the desired business from the said shop has come to an end.
26. The Apex Court in the case of Bega Begum and others Vs. Abdul Ahad Kha, 1979 AIR SC 272: 1986 SCFBRC 346 has held that in every case where an order of eviction is passed , the tenant will come on the street. The fact that the tenants will come on street , if eviction is ordered, is not at all relevant for consideration of a comparative hardship of the respective parties.
27. The apex court in the case of Dhanna Lal Vs. Kalawati Bai, 2002 (4) SLT 250, has held that alternative accommodation must be one 'owned' by landlord and not tenanted and should be suitable in all respect as suit accommodation. In the present case two shops allotted in favour of the landlord and his son which are alleged to be of wooden structure cannot be said to be a suitable accommodation. A landlord cannot be compelled to carry on business from a premises alloted by Nagar Palika Parishad, Etawah. The petitioner wants to carry on his business along with his sons on a large scale after demolishing the three disputed shops and building one single shop in its place. It has come on record that the building plan has been approved by the concern authority.
28. Both the courts below have held that the landlord is not a member of the Hindu Undivided Family consisting to his mother, brother and sons and nephews. The petitioner has not filed any cogent evidence to establish the fact that the petitioner is a member of the aforementioned Hindu Undivided Family. Of course, he is a Karta of small HUF consisting of himself and his two sons.
29. The courts below have recorded concurrent findings of facts that the need set up by the landlord is bonafide and genuine and the comparative hardship tilts in his favour. The courts below have given cogent, convincing and satisfactory reasons while allowing the release applications of the landlord.
30. The appellate court has also recorded a finding that the wife of the tenant petitioner Anil Kumar owns two houses in Sati Mohalla , Etawah where the petitioner tenant can set up his business, but no such effort was made by him.
31. The lower appellate court has recorded a very clear finding that the tenant Brahm Kishor owns a shop in Pucca Talab Chauaraha, Etawah which is being used as Godown and further he runs the business of food grains in the name of Medhai Lal along with his sons and brothers.
32. The appellate Authority has recorded a finding that the tenant Nand Kishor Verma is doing business along with his son Anil under the name and style of M/s Etawah Boot House at Raja Ganj Market, Etawah and is also in possession of one godown.
33. The petitioners have not adduced any cogent evidence to show that he made any sincere and honest effort to search out any alternative accommodation. The findings recorded by the courts below are based on the material available on record, as such, no adverse inference can be drawn by this Court while exercising its jurisdiction under Article 226 of the Constitution of India.
29. No other point has been pressed by the learned counsel for the petitioner.
30. Thus, I do not find any illegality or infirmity in the orders impugned in these three writ petitions. All these three writ petitions are, accordingly, dismissed.
31. Lastly, learned counsel for the petitioners No. A, B and C urged that at least six months' time may be granted to him for vacating the said shop so that he may be able to search any other suitable accommodation. The learned counsel for the landlord did not raise any objection to it.
32. As urged by the learned counsel for the petitioners No. A, B and C, six months' time is granted to the petitioners to vacate the premises in dispute provided the petitioners give their undertaking in the form of an affidavit before the prescribed authority within 45 days from today specifically stating therein that they will handover the peaceful possession of the said accommodation to the landlord opposite party without inducting any third person within a period of six months from today.
33. In the event of default of any of the aforesaid conditions, the landlord will be at liberty to proceed to evict the petitioners, if necessary by coercive process with the aid of police force.
34. Let a copy of this order be placed on the record of the connected writ petitions.
Order Date: 30.4.2012 MLK/Vinay