Disposed

Prabhat Kumar and Brothers v. Prescribed Athority/Judge, Small Causes Court and Another

Allahabad HC8 May 2018A227/3094/2018

Case brief

AI extract

What is this about?

In a petition under Article 227 seeking quashing of eviction relief orders, the tenant argued lack of bona fide need and availability of vacancy. The High Court upheld the lower courts' findings on bona fide need but directed the landlord to pay two years' rent as compensation if alternative accommodation is not offered.

What did the court decide?

Directed the respondent-landlord to pay two years' rent as compensation to the petitioner-tenant if alternative available space is not offered for relocation.

Prabhat Kumar and Brothers Vs Prescribed… — Landlord and Tenant | Allahabad HC (2018)

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Court No. - 26

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Case :- MATTERS UNDER ARTICLE 227 No. - 3094 of 2018

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Petitioner :- Prabhat Kumar And Brothers Respondent :- Prescribed Athority/Judge, Small Causes Court And Another Counsel for Petitioner :- Kshitij Shailendra Counsel for Respondent :- Sushil Kumar Tewari,Braham Singh,Rama Goel Bansal

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Hon'ble Mrs. Sangeeta Chandra,J.

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(ORAL)

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This petition has been filed by the petitionertenant praying for quashing of the order passed by the Prescribed Authority, Judge Small Causes Court, Moradabad in P.A. Case No. 9 of 2008 (Dr. Omkar Nath Khanna vs Prabhat Kumar & Brothers and others) as well as the order dated 04.04.2018 passed by the learned District Judge, Moradabad in Rent Control Appeal No. 17 of 2017.

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Mr. Kshitij Shailendra, learned counsel for the petitioner-tenant has submitted that the petitioner carries out the business of manufacturing corrugated cardboard boxes from the shop situated at Rampur Road near Miglani Cinema in the city of Moradabad. The said shop is part of a huge premises owned by the landlord. There were

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two halls which were in the vacant possession of

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the landlord at the time when the release application was file. While one shop is under the tenancy of M/s Diesel Engineers, whose Rent Control Appeal against the release order is pending, there are two other shops, one under the tenancy of Shri Alok Mahajan and the second under the tenancy of Anil Motors, which are situated adjacent to petitioner's shop, which have been only recently vacated from their tenancy and are in the vacant possession of the landlordrespondent. However, the landlord-respondent filed a Release Application registered as P.A. Case No. 9 of 2008, under section 21(1)(a) of the U.P. Act No. 13 of 1972 saying therein that the respondent-landlord was a Chief Medical Officer, who retired on 30.06.2001, and wished to pursue his medical profession by opening a clinic in the shop in question.

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The tenant filed a written statement bringing on record the alternative accommodation available within the city of Kanpur to the respondentlandlord, and also stated clearly that in the same premises, where the tenant-petitioner's shop is situated, there were four other shops lying vacant

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that could be utilized by the respondent-landlord for setting up his clinic. It was also stated by the tenant that he had been doing his business of manufacturing corrugated Cardboard Boxes from the shop in dispute for the last about 33 years. Also other family members of respondent No. 3 were owners of the shop in question, and he had acquired ownership only on 21.01.2005, and he had no right to file the release application prior to expiry of three years as per the provisions of section 21(1) (a) of U.P. Act No. 13 of 1972. Later on, this contention was not pressed due to the judgment rendered by the Hon'ble Supreme Court in Martin and Harris Ltd. vs. 6th Additional District Judge and others, 1998 (1) SCC 732.

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The contention of the petitioner-tenant as submitted by Mr. Kshitij Shailendra, learned counsel for the petitioner is that respondent No. 3 already had sufficient accommodation in the very same premises, where the shop in dispute was situated, and therefore, the Release Application was not filed for genuine and bona fide need. It was the contention of the respondent-landlord that he was a Dermatologist and he required all three

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shops in a row and that he would demolish the connecting walls in between the shops to establish Clinic making sitting arrangements separately for male and female patients, and a separate area for check-up and a separate area for dispensary.

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The Prescribed Authority in the order impugned has believed the submissions made by the respondent-landlord that despite vacation of the two adjoining shops by the other tenants i.e. Alok Mahajan and Anil Motors, the shop in dispute, which was situated in between the two already vacated shops, was bona fide required by the landlord to establish his Clinic.

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After the release application was allowed on 18.07.2017, the petitioner filed a Rent Control Appeal No. 17 of 2017, and in this appeal, the petitioner brought on record the number of vacant shops and halls situated in premises, where the disputed shop was situated. It was his contention that two halls were vacant earlier, and two shops were later on vacated. Besides the shop of the petitioner, there was a huge open land behind the Service Centre for Cars opened by the son of the

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respondent-landlord. There was a huge residential house also of the respondent-landlord in the same plot of land.

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The Appellate Authority instead of applying its independent mind to the findings recorded by the Prescribed Authority merely confirmed the order passed by the Prescribed Authority, and did not look into the specific plea regarding concealment on the part of the respondent-landlord. The Prescribed Authority observed that the petitionertenant had no right to suggest to the landlord any alternative accommodation as a tenant cannot dictate terms to the landlord in what manner he should utilize his property.

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Learned counsel for the petitioner-tenant has submitted that reliance has been placed upon the judgments of the Hon'ble Supreme Court and of this Court, which observed that the landlord is the best judge of how he his need for accommodation has to be satisfied. The Prescribed Authority and the Appellate Authority have failed to notice that the respondent-landlord retired on 30.06.2001 and he did not feel any need to establish his Clinic for

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almost seven years till he filed the Release Application in 2008 against the tenant. Respondent No. 3 was already at an advanced age of 78 years and he would certainly not want to open a Clinic at this late stage in his life, particularly when Moradabad city is well equipped and thousands of competent doctors. Respondent No. 3 is not a Surgeon, but only a Dermatologist and his Clinic could be established in two halls, which were already lying vacant, and two shops rendered vacant later in the same premises.

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Mrs. Rama Goel Bansal, learned counsel, who appeared for the respondent No. 3, landlord has argued on the basis of findings recorded by the Prescribed Authority and by the Appellate Authority that the alternative accommodation suggested by the petitioner-tenant was not suitable for opening a Clinic. She has read out passages from the order passed by the Prescribed Authority, wherein it was found that one property of 1500 Sq. mts. said to be situated in Atai Mohalla was found to be a property belonging to Daudayal Maharani Trust, which was joint family property, whereas another property situated at Civil Lines

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was also in possession of the joint family, and was in fact a Nazul property and because of the family feed, the lease of the Nazul land could not even be renewed. The disputed premises were the only premises, in which respondent No. 3 could establish his Clinic.

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Mrs. Rama Goel Bansal, learned counsel for the respondent-landlord has also pointed out that the two shops adjoining the shop of the petitioner were both vacated during the pendency of the Release Application in 2015 and 2018 respectively, and were unavailable when the Release Application was filed by the respondent No. 3.

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Learned counsel for the respondent-landlord has also pointed out from the averments made in the rejoinder affidavit filed by the petitionertenant to the counter affidavit of the respondent No. 3 that the two halls in question, which the petitioner-tenant was repeatedly referring to were unsuitable and in fact there was only one hall and not two halls having three doors and it was earlier being used as Service Centre for Cars and because of its unsuitable condition to be used as a Clinic,

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no Clinic could be established in it. With regard to the petitioner-tenant's shop in question, there was a specific averment made by the respondent No. 3 before the Prescribed Authority and before the Appellate Authority that the petitioner-tenant was not doing any manufacturing business, as alleged by him and that he had rented out the space to Rickshaw Pullers and to the owner of a tea stall, who were utilizing the space for keeping their vehicles/trolleys.

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Mr. Kshitij Shailendra, learned counsel for the petitioner-tenant has seriously disputed the arguments made with regard to the petitioner not conducting his business from the shop in question. He has referred to several photographs and also cash memos etc. filed as evidence before the learned courts below to show that the petitioner was conducting his business of manufacturing corrugated cardboard boxes from the shop in question alone.

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Mrs. Rama Goel Bansal, learned counsel for the respondent No. 3 has also referred to the concurrent finding of facts recorded by the

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Prescribed Authority and the Appellate Authority with regard to unsuitability of establishing a Clinic in other alternative accommodation suggested by the petitioner-tenant. She has also argued that since no perversity in the findings of fact have been pointed out by the learned counsel for the petitioner-tenant, this Court sitting in supervisory jurisdiction ought not to interfere in such concurrent findings of fact at this stage.

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Having considered the arguments raised by the learned counsel for the parties, I have perused the orders impugned.

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The Prescribed Authority has in its detailed judgment taken into account the pleadings of both the parties including the pleadings of petitionertenant that since the date of his retirement on 30.06.2001, the respondent-landlord did not make effort to establish a Clinic till he filed the Release Application in 2008, and also the contention raised by the petitioner-tenant that the petitioner-tenant was only a physician and not a surgeon, who would open Nursing Home. He only needed a Clinic, which he could do from the two shops lying

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in vacant possession of the landlord. After considering the pleadings on record, the Prescribed Authority has found that the two shops that the petitioner-tenant was referring to, were unsuitable for establishing the Clinic. The Prescribed Authority has also taken into account the fact that there was 1500 Sq. Mts. of land in Atai Mohalla in the ownership of Daudayal Maharani Trust and 6500 Sq. Mts. of land, which was Nazul land under joint family ownership. The premises in question being situated near the residential house of the respondent-landlord i.e. in the same premises, where the residential house of the respondent-landlord was situated at Rampur Road was found by the respondent-landlord and also by the Prescribed Authority to be the most suitable space for the respondent-landlord to establish his Clinic. The findings of fact recorded with regard to availability of alternative accommodation as suggested by the petitionertenant have been affirmed by the Appellate Court, and the Appellate Court has also considered the fact that it is not the tenant's right to suggest alternative accommodation or to dictate terms of

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the landlord.

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I do not find any factual or legal infirmity in the orders impugned passed by the learned courts below to show interference in limited jurisdiction exercised under Article 227 of the Constitution of India by this Court.

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Mr. Kshitij Shailendra, learned counsel for the petitioner-tenant has pointed out from the orders passed by the Prescribed Authority and by the Appellate Authority that there is finding recorded that there is one/two halls lying in vacant possession of the respondent-landlord, in which earlier a Service Centre for Cars was being run and because of the construction made for such Service Centre, the respondent-landlord could not establish his Clinic therein.

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It has been submitted by Mr Kshitij Shailendra that although the space in question may be unsuitable for establishing a Clinic, it may be let out by the respondent-landlord to the tenant, who would continue to manufacture corrugated Cardboard Boxes from the said space and thus, would not be prejudiced in carrying out his

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business, which he has been running from the same premises for the past 30 years.

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Since, there is no pleading on record, this Court cannot return a finding either in favour or against the petitioner-tenant. This Court has not interfered in the orders passed by the learned courts below. It would be open for the tenant to approach the respondent-landlord to consider his request sympathetically.

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Mrs. Rama Goel Bansal, on the other hand, has referred to page 108 of the paper book, where in the Release Application in paragraph 11, the respondent-landlord has mentioned that he was ready to compensate the tenant in any manner permissible by law. The petitioner-tenant was paying Rs. 1500/- per month as rent and the landlord was ready to pay two years of rent as prescribed under Proviso 2 to sub-section (1) of section 21.

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This Court feels it appropriate to therefore issue a direction to the respondent-landlord to give two years of rent as compensation to the petitioner-tenant, who may look for alternative

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accommodation, in case, the respondent landlord is not ready to let out the alternative space in vacant possession of the landlord as alleged by the petitioner-tenant.

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In case, the respondent-landlord is unwilling to consider the request of the petitioner-tenant sympathetically, then he may indicate his unwillingness, and the tenant shall thereafter vacate the premises in question within a period of three months from today.

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This petition stands disposed of.

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Order Date :- 8.5.2018 Sazia

Prabhat Kumar and Brothers v. Prescribed Athority/Judge, Small Causes Court and Another

Case brief

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Prabhat Kumar and Brothers v. Prescribed Athority/Judge, Small Causes Court and Another

Case brief

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