Court No. - 19
Case :- MATTERS UNDER ARTICLE 227 No. - 3734 of 2017 Petitioner :- Narain Das Shah & Another Respondent :- Gulab Chand Seth & 3 Others Counsel for Petitioner :- Ashish Kumar Srivastava Counsel for Respondent :- Ajay Kumar Singh,Ashish Kumar Singh,Niraj Kumar Baranwal
Hon'ble Manoj Kumar Gupta,J.
The instant petition under Article 227 of the Constitution has been filed assailing the judgement dated 3.3.2017 passed by Additional District Judge/Special Judge (EC Act), Varanasi in Rent Appeal No.4 of 2014 and the judgement dated 11.12.2013 by Prescribed Authority in P.A. Case No. 45 of 2012. A release application under Section 21(1)(a) of the U.P. Act No.13 of 1972 (for short 'the Act') was filed by the respondents (hereinafter referred to as 'landlords') against the petitioners (for short 'the tenants') seeking release of a non-residential premises in their possession comprising of first, second and third floor of building bearing Municipal No. CK-19/17 Aash Bhairoo (Bara Muniruddaula), Ward- Chowk, Varanasi City. It was registered as P.A. Case No.45 of 2012. According to the case set up in the release application, the building in which the petitioners were tenant, was purchased by petitioner no.1 along with his two brothers by registered sale deed dated 28.10.1998. In Original Suit No.1263 of 2008 between the owners, a partition took place, according to which building No. CK-19/17, i.e., the disputed building fell in the share of the applicants/landlords. Their specific case in the release application was that they also own a residential building bearing Municipal No.D47/44 Rampura, Varanasi. They have in their possession a shop on the ground floor of the same building. The need set up in the release application was for starting their traditional business of silver and gold ornaments. It was alleged that earlier applicant No.1 was doing said family business jointly with their brothers, but after partition, they have been left with no place to do the said business. The three sons of applicant, all of whom are married, are left with no business.
The release application was contested by the petitioners by filing a written statement and apart from denying that the need of the landlord is bonafide, the petitioners inter alia took specific plea that the landlords have purchased house no.C-8/75 mohalla Chetganj, Varanasi. The said house is located on the main Lahurabir-Godowlia Road, which is commercial area and that the sons of the landlord are already doing business in the said building but which was concealed by them.
The Prescribed Authority allowed the release application by judgement and order dated 11.12.2013 holding need of the landlord as genuine and bonafide. The Prescribed Authority also held that the petitioners are already having adjoining building in their possession, from which also they are doing business, as such, comparative hardship of the landlords was found to be more as compared to the tenants. Aggrieved by the said order, petitioners filed Rent Appeal No.4 of 2014 which has been dismissed by the appellate court by judgement dated 3.3.2017 and consequently the instant petition.
Sri Naveen Sinha, learned senior counsel assisted by Sri Ashish Kumar Srivastava submitted the the courts below have not returned any finding with regard to premise No. C-8/75 Chetganj, Varanasi in respect whereof specific assertion was made by the petitioners in paragraph 42 of the written statement. He has also invited the attention of the Court towards paragraph 16 of the affidavit of petitioner no.1 in which it is reiterated that the said building is situated on main commercial segment of the city i.e., Lahurabir-Godowlia Road. It is also asserted therein that the said building is assessed as commercial building by Nagar Nigam, Varanasi and is entirely in the control of the family of the applicant. According to the petitioners, the said building has a ground floor plus five more floors with all modern facilities and it has been built in a manner that it could be used for commercial purpose. The adjoining building, according to the petitioners are already being used for commercial purpose and there are also number of jewelry shops in the vicinity.
Gulab Chandra Seth, respondent no.1 filed his affidavit in response to the affidavit of the petitioners/tenants and in paragraph 29 thereof, it is stated thus :-
“(29) That with regards to para-43 of the affidavit it is submitted that building no.C.8/75, Mohalla-Chetganj, Varanasi was a building in dilapidated condition which is under construction and is purely residential and where no such type of business can be done as is required by the applicants. The applicants have not concealed any fact which was in existence at the time when they applied for the release of disputed building.”
Thus, the specific case of the landlord was that the said building is purely residential building and it was in dilapidated condition and under construction and that they had not been carrying on any business from the said building as alleged by the petitioners. Once the landlords have denied that they were using the building in question for running business, as contended by the petitioners, the burden shifted upon the petitioners to prove that the landlord had been doing business from the said building. In case the plea taken by the petitioners in that regard was correct and some business was being carried on from the said building, the petitioners could have easily filed documentary evidence about running of the business by the landlord from the said building. However, Sri Naveen Sinha, learned senior counsel very fairly accepts that no documentary evidence was filed to prove that any business was being done from the said building or that it was used for commercial purpose at any point of time.
In such view of the matter, this Court does not consider it proper to interfere with the impugned order on basis of the above submission.
No other submission has been made by learned counsel for the petitioners. The writ petition lacks merit and is accordingly dismissed.
At this stage, Sri Naveen Sinha submitted that some reasonable time be granted to the petitioners to vacate, to which learned counsel for the respondents has no objection. Accordingly, the petitioners are granted six months time to vacate the tenanted premises subject to their furnishing an undertaking before the Prescribed Authority within a period of three weeks from today to the effect that they would handover vacant possession to the landlord at the expiry of six months from today and during this period, they shall not induct any third party.
Order Date :- 29.11.2018 skv (Manoj Kumar Gupta, J.)