Heard Sri Ram Karan Agrawal, learned counsel for the petitioners, learned Standing Counsel, Sri A. K. Jaiswal, learned counsel for the opposite party no.2 and perused the record.
This writ petition under Article 226 of the Constitution of India has been filed with the prayer that a writ, order or direction in the nature of Certiorari may be issued quashing the judgment and order dated 11.09.2009 (Anenxure No.1) passed by the learned Additional District Judge, Court No. 8, Lucknow in Rent Appeal No. 23 of 1999
- Ausan Das Tyagi Vs. Mangat Ram Agrawal (deceased) represented by L.Rs.
The brief facts, giving rise to this writ petition, are that an application under Section 21(1)(a) of the U.P. Act No. 13 of 1972 was moved on behalf of the applicant/opposite party no.2 for release of the shop in question on the ground that he is the owner/landlord of the said shop and Mangat Ram Agrawal is occupying the said shop as tenant on the monthly rent of Rs. 200/-. It has been alleged that his family consists of his wife and five sons. His all sons are unemployed. His need for the shop in question is genuine and bonafide as he requires the said shop for starting the business of general store for his unemployed eldest son. The opposite party/tenant Sri Mangat Ram Agrawal has four shops besides the shop in question. He himself carries on the business of ration shop at Neelmatha Bazar. His other three shops are situated at Vijay Nagar road. In one of the said shops, his son is carrying on the shop of kirana merchant and the other shops are lying vacant. If the shop in question is released, he would not again let out the said shop. If the said shop is not released in favour of the applicant, he would suffer irreparable loss. The tenant filed the written statement alleging that the landlord wants to enhance the rent to Rs. 300/- per month. His family consists of his wife and four sons. His son Satish Kumar is carrying on business in the disputed shop and he himself runs government price shop. In one of the shops situated at Vijay Nagar, his son Manoj is carrying on small business and other shops are being used as store. The need of the applicant for the shop in question is not genuine and bonafide, because, his eldest son went to Mumbai in the year 1998 and he is employed there. His another son is residing separately and his another son is a student. His need is more pressing and bonafide than the need of the applicant.
In the replication, the applicant has alleged that his son Nand Kishor went to Mumbai in search of service, but, he returned back at his house as he could not get employment there.
Parties produced the evidence in support of their respective version. After considering the record, the learned Prescribed Authority rejected the said application vide its judgment and order dated 01.04.1999 passed in P.A. Case No. 25 of 1998 - Ausan Das Tyagi Vs. Mangat Ram Agrawal on the ground that the need of the applicant for shop in question is not genuine and bonafide and since his need is not bonafide, there is no need to consider the comparative hardship of the landlord and tenant.
Feeling aggrieved by the said judgment and order, the applicant/opposite party no.2 Sri Ausan Das Tyagi preferred Rent Appeal No. 23 of 1999 in the Court of District Judge, Lucknow. During the pendency of the appeal, Sri Mangat Ram Agrawal has expired and he is being represented through his L.Rs. The said appeal has been allowed by the learned Additional District Judge, Court No. 8, Lucknow vide its judgment and order dated 11.09.2009. The judgment and order dated 01.04.1999 passed by the learned Prescribed Authority has been set aside. The appellate Court has allowed the application under Section 21(1)(a) of the U.P. Act 13 of 1972 and ordered to release the shop in question in favour of the appellant. Feeling aggrieved by the judgment of the appellate Court, the legal representatives of the deceased tenant/petitioners have filed this writ petition.
The learned counsel for the petitioners has submitted that the appellant's eldest son Nand Kishore was employed in Mumbai even before filing of the said application and the need of the applicant for the shop in question was not genuine and bonafide and the said application was moved with malafide intention in order to enhance the rent. He has further submitted that during the pendency of the appeal, four shops have been constructed by the applicant and in two shops, his sons are running hotel and the other two shops have been let out. His contention is that if the need of the applicant for the shop in question would have been bonafide, the said shops would not have been let out.
The learned appellate Court after considering the record has reversed the finding of the learned Prescribed Authority and has held that the need of the applicant for the shop in question is genuine and bonafide. On consideration of comparative hardship of the landlord and tenant, the appellate Court has held that the applicant would suffer greater hardship than the tenants if the shop in question is not released in favour of the landlord.
The application under Section 21(1)(a) of the U.P. Act No. 13 of 1972 was filed in the year 1998 and the appeal has been disposed of in the year 2009. The learned appellate Court has held that a person for whose need the shop in question was required, cannot sit idle just to wait for the release of the shop and he has to get himself employed somewhere for his livelihood. It is not disputed that since the year 1998, the tenant has not made any effort to search out the alternative accommodation. It is also admitted by the petitioners that their two shops are being used as store room. The petitioners can fulfill their need, if any, by the said shops. Besides it, the tenants cannot dictate terms to the landlord as to how he should manage his affairs.
After considering the record, and the impugned judgment and order, the findings recorded by the learned appellate Court do not seem to be perverse. The learned appellate Court appears to be justified in recording the said findings. There is no manifest error of law in the impugned judgment and order dated 11.09.2009 and hence, no interference is called for in exercise of writ jurisdiction under Article 226 of the Constitution of India by this Court.
In view of the aforesaid discussions, I am of the view that this writ petition lacks merit and it is, therefore, dismissed at the admission stage.
Order Date :- 29.1.2010 psd