Court No. - 19
Case :- WRIT - A No. - 6605 of 2013 Petitioner :- Lalit Kumar Jain Respondent :- Vimal Kumar Jain Counsel for Petitioner :- Ram Kishore Pandey,Ishir Sripat,Nagendra Kumar Srivastava,Rahul Sripat Counsel for Respondent :- Deepak Kumar Jaiswal,Mohit Kumar Shukla,Nipun Mohan,Tarun Agrawal
Hon'ble Manoj Kumar Gupta,J.
An affidavit of undertaking filed today is taken on record. Heard learned counsel for the parties.
The petitioner has called in question the judgment and order dated 13.12.2012 passed by Appellate Court in an appeal filed under Section 22 of U.P. Act No. 13 of 1972 (hereinafter referred to as 'the Act'). Thereby, the appeal of the respondent- tenant challenging the order of release, passed by the Prescribed Authority, has been allowed.
The facts in brief necessary for disposal of the instant petition are as follows:-
The proceedings arise out of a release application filed by the petitioner under section 21(1) (a) of the Act for release of a shop situated at Bazar Ansari Road, District Bulandshahar in the tenancy of the respondent. The case set up in the release application is that the petitioner retired from service on 31.7.2008 from the post of Instructor at ITI, Saket, Meerut and he intends to start business of sale of electrical goods from the disputed shop.
The shop was let out to the respondent on 11.9.1979 for a period of 30 years keeping in mind the date of his retirement so that thereafter, he may obtain its possession and start his business. The release application was registered as Rent Control Case no. 3 of 2010.
The respondent-tenant contested the release application alleging that the petitioner received huge amounts as post-retiral benefit. His son and daughter-in-law are already well settled . The daughter Smt. Punita Jain is also married and settled in Delhi and the petitioner, thus, has no financial liabilities. The amount he receives as pension and other retiral benefits are sufficient to meet his expenses. He also pleaded that during the period 1996 to 2000, the petitioner was the owner of four shops. They were in the tenancy of (i) Babu Ram, (ii) Raj Narain, (iii) Rajendra Saran and (iv) Vimal Kumar Jain (respondents herein). The petitioner sold the shop in tenancy of Rajendra Saran after getting the same vacated to Subash Chandra. He got another shop vacated from tenant Raj Narain and without any allotment order let out the same to Babu Ram.
The Prescribed Authority, by judgment and order dated 9.4.2012 allowed the release application. Aggrieved thereby, the respondent-tenant filed Rent Control Appeal No. 9 of 2012, which has been allowed by the Appellate Court by the impugned order and judgment.
The appellate court has returned the following findings:-
(I) A shop on the eastern side of the disputed shop was in tenancy of Rajendra Saran. He died and thereafter, it was got vacated from his heirs and was sold for a sum of Rs. Two lacs and seven thousand by sale deed dated 5.2.2001. The petitioner could have started his business from the said shop but instead of starting his business, the petitioner sold the same. It was inferred therefrom that the alleged need is not bonafide.
(ii) The petitioner filed Rent Case no. 6 of 1991 for release of shop in the tenancy of Raj Narain, which was rejected by order dated 28.3.1992. The petitioner succeeded in obtaining vacant possession of the said shop, but instead of using it himself , it was let out to Subhash and Sanjiv Kumar in the year 1996 on a monthly rent of Rs.250 /- per month.
(iii) One shop in the tenancy of Raja Ram Painter was got released by Indra Mohan Jain, grand father of the petitioner for the alleged need of the petitioner and his brother Vipin Kumar in Rent Control Case no. 12 of 1977. However, the petitioner did not use the said shop for starting his business. It is the same shop which was subsequently let out to the respondent on 11.9.1979.
(iv) The petitioner has not disclosed different sources of his income. The Bank account of the petitioner shows deposits of various amounts but no explanation has been furnished in respect thereof nor income Tax Returns have been filed. It is, therefore, concluded that the petitioner has not come to Court with clean hands.
While recording the above adverse findings, the Appellate Court observed in favour of the petitioner that the need of the petitioner can not be repelled solely on the ground that the petitioner has set up need for starting a business after retirement.
Learned counsel for the petitioner submitted that the factors which weighed with the Appellate Court in negating the need of the petitioner were not at all germane. It is urged that letting out of a shop in the year 1996 when it was not required, as the petitioner was in service, would have no adverse effect on the need now set up. Likewise , the other shop, sold in the year 2001, was also not required at the relevant time. The petitioner was in need of money for the marriage of his son and for liquidating the debt taken at the time of marriage of his daughter. He further submitted that the disputed shop was let out on 11.9.1979 for a fixed period of 30 years keeping in mind the fact that the petitioner would superannuate on 31.7.2008 and would require it for starting his own business. It is also submitted that the statement of bank account of the petitioner shows that various amounts credited therein were those which the petitioner received as post-retiral benefits. The appellate court erred in making wholly perverse observation that the petitioner has failed to explain his other sources of income, though he had none.
Learned counsel for the respondent-tenant fairly conceded that age factor, ipso facto, will not disentitle the petitioner to seek release of the disputed shop for starting a business. He however, submitted that the Appellate Court, having regard to the past conduct of the petitioner, rightly held that the need of the petitioner for the disputed shop is not bonafide. There is every possibility that he will sell the disputed shop after getting it vacated. He further submitted that the respondent has come to know that the petitioner has already entered into a clandestine arrangement with a third party to sell the shop after getting its possession.
I have considered the submissions made by the learned counsel for the parties and perused the evidence and other material placed on record.
The appellate court has rightly observed that the need of the petitioner cannot be repelled on the ground of age of the petitioner nor on the ground that he is seeking its release after retirement from service. The main issue for consideration is whether the need set up by the petitioner is bonafide or not having regard to his past conduct. The first main factor which has weighed with the appellate court in negating his need is sale of a shop on 5.2.2001 for sale a consideration of Rs. Two lacs and seven thousand after getting the same vacated from the erstwhile tenants Rajendra Saran. The specific case of the petitioner in paragraph no. 7 of his affidavit dated 18.5.2010 ( filed before the Prescribed Authority) is that the shop was sold as he was in dire need of money to meet the expenses of marriage of his son and to liquidate the debts incurred at the time of marriage of his daughter. The said shop was sold while the petitioner was in service, almost seven years before he had to retire. The need set up in the release application came into being consequent to his retirement in the year 2008. This Court finds it difficult to approve the view taken by the Appellate Court that the petitioner should not have sold the said shop, had he been in need of starting his business. The second factor which weighed with the appellate court while negating the need of the petitioner is letting out of a shop in the year 1996 to Subhash and Sanjiv Kumar. According to the respondent -tenant, the said shop was in tenancy of Raj Narain against whom Rent Case no. 6 of 1991 was filed but which was rejected on 28.3.1992. A perusal of the release application reveals that the need set up therein was that of the petitioner. According to the petitioner, the tenant Raj Narain had sub-let the shop in his tenancy to one Ramesh Chandra. After death of Ramesh Chandra, his son Subash Chandra Gupta was occupying the same. In such circumstances, the petitioner got compelled to accept him as his tenant, by entering into an agreement of tenancy with him, in which also there is a clear recital of the above facts. Considerable time has elapsed since then .The petitioner has retired in the year 2008. He moved the instant application setting up an entirely different need. The need now set up has come into existence consequent to his retirement. It is the specific case of the petitioner that he let out the disputed shop for a fixed period to coincide the expiry of lease with his retirement as he had in his mind that he would not sit idle after retirement but engage himself in business.
Rule 18(2) of the rules provides that where an application of a landlord against a tenant under Section 21 for the release of any building or any specified part thereof or any surplus land appurtenant to such building is rejected on merits and a fresh application on the same ground is made within a period of one year from that decision, the prescribed authority shall accept the findings in those proceedings as conclusive.
Concededly, in the instant case, not only the need set up is entirely different, but the release applicant was filed more than one decade since the rejection of the earlier release application. It will therefore, have no bearing on the need now set up in the instant release application.
In respect of the third shop, which was got released in the Rent case no. 12 of 1977 by the grand father of the petitioner, the same was let out to the petitioner on 11.9.1979 for a period of 30 years. The specific case of the petitioner is that the letting out was done under a registered Agreement dated 11.9.1979 for a period 30 years keeping in mind his age of superannuation, so that soon after retirement from service he could start his business from the said shop. The release application has to be decided taking into consideration the need which was in existence at the time of filing of the release application.
Coming to the next aspect regarding non- disclosure of sources of income, it is noteworthy that the statement of account brought on record does not show any incriminating entry. It also does not reflect deposit of any sum which could be said to be disproportionate to the known source of income of the petitioner. The petitioner has duly explained to the Court various entries and how those amounts were received from the department as post retiral benefits. There is nothing on record to disbelieve the stand taken by the petitioner in this regard.
The petitioner has filed an affidavit of undertaking dated 21.2.2019. In paragraph no. 4 of the said affidavit, it is stated as under :-
“That the deponent who is also the petitioner and landlord of the shop in dispute hereby records his undertaking on oath that he shall use the shop in dispute after making required alterations, renovation, repairs etc by himself for his own business and shall neither sell the shop not give it on rent nor in any way create any third party interest. Accordingly, the deponent humbly prays that this Hon'ble Court be pleased to allow the writ petition and release the shop in dispute to the petitioner forthwith for which the petitioner shall always be grateful”
In my view, the above undertaking, duly takes care of the apprehension that the order of release would be abused. It also goes without saying that in case, the undertaking furnished by the petitioner is violated, he would be liable to contempt, apart from the right conferred in favour of the respondent -tenant to re- enter under section 24 of the Act.
In consequence and as a result of above discussion, the judgment and order dated 13.12.2012 is hereby quashed. The release order passed by the Prescribed Authority is restored.
At this stage, learned counsel for the respondent points out, on basis of instructions received from the respondent, that he has deposited rent of the disputed shop till December 2019 before the court below in proceedings for recovery of rent and eviction. He submitted that the respondent be granted time till 31 December 2019 to vacate, to which learned counsel for the petitioner has no objection.
Accordingly, time is granted to the respondent-tenant upto 31.12.2019 to vacate, provided he furnishes an undertaking before the Prescribed Authority, within three weeks from today, that he will handover vacant possession of the disputed shop to the petitioner on or before 31st December 2019. During this period, the respondent -tenant shall not part possession to any third party.
The writ petition is allowed accordingly.
( Manoj Kumar Gupta,J.) Order Date :- 22.2.2019. aks