Partly allowed

Smt. Naznin Jamil v. Natwar Nanda Kedia and Another

Allahabad HC8 Dec 2021WRIA/9116/2018

Case brief

AI extract

What is this about?

The High Court set aside the appellate court's order dismissing a release application under the U.P. Urban Buildings Act. The Court affirmed the Prescribed Authority's finding that the widow-landlady had a bona fide need for the shop to start a business, rejecting the tenant's evidence regarding the landlord's age and health as unsubstantiated.

What did the court decide?

The appellate order dated 19.12.2017 was set aside, and the order of the Prescribed Authority allowing the release of half the western portion of the shop was affirmed. Writ petition allowed.

Smt. Naznin Jamil Vs Natwar Nanda Kedia and Another — Landlord and Tenant | Allahabad HC (2021)

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Court No. - 4 Case :- WRIT - A No. - 9116 of 2018 Petitioner :- Smt. Naznin Jamil Respondent :- Natwar Nanda Kedia And Another Counsel for Petitioner :- Ramendra Asthana,Atul Kumar Srivastava,Sumit Daga Counsel for Respondent :- Sunil Kumar Mishra ,Alpana Chittranshi,Ashok Kumar Upadhyay,Sanjay Kumar Srivastava

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Hon'ble Rohit Ranjan Agarwal,J.

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1. Heard Sri Atul Dayal, learned Senior Counsel assisted by Sri Sumit Daga, learned counsel for the petitioner and Sri Ashok Kumar Upadhyay, learned counsel for the tenant/respondent no. 1.

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2. This writ petition has been filed assailing the order dated 19.12.2017 passed by Additional District Judge/ Special Judge (E.C. Act), Gorakhpur allowing Rent Appeal No. 01 of 2010.

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3. Facts in nutshell, as disclosed in the petition are that one Late Mohammad Jamil, owner and landlord of shop in dispute filed a release application under Section 21 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 which was under occupation and tenancy of tenant-respondent no. 1, as he had retired from Fertilizer Corporation and was not getting any pension and wanted to start business of typing from the shop in question. However, he unfortunately died on 20.08.2005. After his death, his name was struck off from array of parties and name of Naznin Jamil, petitioner who is his widow and Afzal-UlIslam, respondent no. 2, his son was substituted in the release application as applicant nos. 1/1 and 1/2, respectively. His wife sought release of the accommodation in dispute, as she wanted to start business of sewing and knitting as she had no other means of livelihood as her son was in service and was living away and she was getting only Rs.500/- as rent from the shop in dispute which was not sufficient to meet her needs.

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4. The release application was contested by tenant-respondent no. 1 who filed his written statement on 13.11.2006 denying the fact that there was any need of the landlady, as Late Mohammad Jamil who had retired

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[2]

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from the post of Steno from Fertilizer Corporation of India had got sufficient retiral dues which has been kept as fixed deposit and was bearing interest. Further, it was stated that widow of Late Mohammad Jamil had constructed shop in the year 2006 and one of shop was still vacant and the need was not bona fide . It was also stated that her son was getting handsome salary who was employed in the Bank and she was living with her. It was also contended that the landlady after demolishing one House No. C/109/58 situated in Mohalla Askarganj which was 50 yards away from the present disputed shop had constructed 4 storey new house in which there are five shops each on the ground and first floor. It was also contended that age of landlady is about 70 years and it was not possible for her to start the business of knitting and sewing from the accommodation in dispute.

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5. The landlady filed replication on 21.12.2006 categorically denying the said fact and stated that her son was posted as Field Officer in the Bank and was on transferable job and she was not living with him. Further, she was getting Rs.800/- as rent from two shops which was not sufficient to meet her daily needs. Moreover, her husband after retirement did not get any pension and the retiral dues which her husband got was spent on the marriage of their children. It was also stated that she had learnt the work of knitting and sewing and in that area there are number of boutiques and, thus, there is scope for opening such shop. It was specifically contended in para 7 of the replication that a piece of land was given to their daughter Nazia Iram at the time of her marriage for construction of house and shop over the same and she does not have any other land except the same. On 25.03.2008, additional replication was filed by landlady wherein in para 3 it was stated that in the map filed by tenant, the shop shown by colour red of one Haroon Rashid was in fact not a shop but it was a wooden rack who on the backside of the disputed shop was selling clothes after hanging them on the said rack. In Para 5, it was stated that portion shown as blue was not the shop of the landlady, in

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fact it was the shop constructed by her daughter Nazia Iram over the land which was given to her and the number given by Nagar Palika was 72-B which was constructed by in-laws of her daughter in December, 2006 and she was not getting any rent from the same. In para 9, it was stated that the shop shown as a b c d and the land does does not belong to landlady and no constructions was made by her in the year 2007. In fact, said land belongs to one Sardar. In Para 11, it was specifically stated that the description of the dilapidated kothari given in para 25-A of written statement which was not in the tenancy of any Javed Diar. In fact, that dilapidated kothari has to be constructed but due to financial crunch the same is in dilapidated condition.

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6. After the exchange of pleadings, both the parties filed affidavits in their support. Affidavit paper no. 36-Ga was filed by Mohammad Shakeel, Akbar Ali and Mohammad Azam in support of the landlady while affidavit 62-Ga was filed by petitioner and affidavit paper no. 63-Ga was filed by Vineet Kumar Prajapati in her support. Similarly, affidavit 64-Ga was filed by tenant-respondent no. 1, affidavit 65-Ga by Devendra Kumar Ahuja, affidavit 66-Ga by Rajesh Kumar Gupta, affidavit 77-Ga by Mohammad Azamma and affidavit 78-Ga by Bachha Lal Gupta and affidavit 79-Ga, 83-Ga and 93-Ga by Natwar Nanda Kedia in support of tenant-respondent no. 1.

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7. Vide judgment and order dated 05.12.2009, Prescribed Authority partly allowed the release application in respect of half of the western portion of shop in dispute and directed the tenant to hand over vacant possession.

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8. The Prescribed Authority while partly allowing the release application for half of western portion found that the shop in question belongs to applicant-landlady and not to her daughter namely Nazia Iram. The shop alleged as 72-B in Nagar Palika records was in fact the shop constructed by in-laws of her daughter, Nazia Iram and the shop which

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was shown in the map by blue colour does not belong petitioner i.e. Naznin Jamil. The Prescribed Authority found the need of petitioner to be genuine, as she was in need for release of the shop in setting up business of sewing, knitting and embroidery boutique work and not mere wish as she had experience of work.

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9. The Prescribed Authority also recorded finding that landlady being 60 years of age cannot be said to be not physically fit to do work of sewing, embroidery and boutique. On the comparison of hardship, the Prescribed Authority found that the landlady would suffer in the event of release application being dismissed.

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10. The order of Prescribed Authority was challenged by the tenantrespondent no. 1 by filing appeal under Section 22 of the Act being Rent Appeal No. 1 of 2010. The appellate court vide order dated 19.12.2017 allowed the appeal. Hence, present writ petition. 11. Sri Atul Dayal, learned Senior Advocate appearing for petitioner submitted that Prescribed Authority rightly allowed the release application in part and directed the tenant to hand over half of the western portion of the shop in dispute. He next contended that the appellate authority had misread the pleading as well as the evidence filed in form of affidavits while allowing the appeal of the tenant. He contended that appellate court wrongly held while noting the fact that petitioner had sold the land at Dhamal in the year 2002 at the time of marriage of their daughter. He then contended that finding was recorded on the basis of affidavit filed in support of the tenant that Naznin Jamil, petitioner being an old lady was not capable of doing work of sewing, embroidery and boutique at the age of 60 plus while there was no evidence on record. He further contended that finding recorded on the basis of the affidavit that she was suffering from cataract was also ill founded and was not based upon any evidence. He then submitted that the appellate court has only relied upon the affidavits filed in support of the tenant in regard to age of petitioner and

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her ability not to do such business that the release application has been dismissed. He next contended that the shop shown in the map in blue colour which was constructed by in-laws of daughter of the petitioner was disbelieved on the ground that no document of partition was placed before the court to show that the said property was given to her daughter, Nazia Iram in the year 2006. He next contended that court below while relying upon the document Paper No. 157-Ga had held that it was the letter written by petitioner to Sub-Divisional Officer, Gorakhpur for getting the name over House No. 58 and House No. 72-B be recorded in name of Mohammad Afzalul Islam and Nazia Iram, but if the said house was given to Nazia Iram in partition then there was need of writing letter in the year 2006 to Nagar Nigam. Sri Dayal contended that once the shop shown in blue colour in the map was given to daughter of petitioner, the petitioner had rightly intimated the authorities to transfer the same in the name of her daughter and the finding recorded is totally perverse and arbitrary.

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12. Lastly, it was contended that appellate court without reversing the finding recorded by Prescribed Authority had dismissed the release application solely on the ground that the petitioner was of 72 years of age and was incapable of starting business of sewing, embroidery and boutique.

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13. Reliance has been placed upon decision of co-ordinate Bench of this Court in case of Surendra Singh vs. Additional District Judge, Court No. 11, Muzaffarnagar and 4 others, 2019 (3) ARC 221 , Para 28 (iii and iv), which is extracted hereasunder;-

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“28- The legal position and conclusions as stated above are briefly summarized as under:

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(i) Section 21(1)(a) of U.P. Act 13 of 1972 is very widely worded. Demolition and reconstruction for occupation by landlord himself either for residential purpose or for purposes of any profession, trade or calling is permissible. The words 'profession, trade or calling' are very wide and include all activities wherein a person may usefully and/ or gainfully engage himself.

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(ii) If the disputed property has acquired commercial value and,

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therefore, the the landlord wished to demolish the old single storey structure and to construct a multi-storeyed building which may fetch him higher rent and has applied to the competent authorities and got the plans approved, then the landlord's bonafide need is true.

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(iii) It is well settled the landlord's requirement need not be a dire necessity. The Court cannot direct the landlord to do a particular business or imagine that he could profitably do a particular business rather than the business he proposes to start. It is for the landlord to decide which business he wants to do. The Court cannot advise him.

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(iv) Landlord is the best judge of his need and this Court can not interfere in concurrent findings of fact regarding bonafide need establish before the Prescribed Authority and the appellate authority. This Court can interfere only when there is perversity in the findings recorded or when the courts below have acted without jurisdiction or far in excess of jurisdiction. A landlord has got a right to expand his business and in case, he requires additional space for it, the need cannot be said to be malafide. The tenant cannot dictate terms to the landlord as to how he should satisfy his need. Landlord is sole person who can take a decision as to which shop fulfils his need and the needs of his family. The tenant or for that matter even the Court can not guide the landlord as to which accommodation he should view to fulfil his need and which accommodation he shall not use.

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(v) To be amenable to correction in certiorari jurisdiction, the error committed by the Court or Authority on whose judgment this Court is exercising jurisdiction, should be an error which is self-evident. An error which needs to be established by lengthy and complicated arguments or by indulging into a long- drawn process of reasoning, cannot possibly be an error available for correction by writ of certiorari. If it is reasonably possible to form two opinions on the same material, the finding arrived at one way or the other, cannot be called a patent error. As to the exercise of supervisory jurisdiction of the High Court under Article 227 of the Constitution also, it has been held in Surya Dev Rai (Supra) that the jurisdiction was not available to be exercised for indulging into re- appreciation or evaluation of evidence or correcting the errors in drawing inferences like a court of appeal.

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(vi) The tenant-petitioner has not disputed the fact even before this Court that the landlord-respondents have offered him a shop on the ground-floor for vacating the disputed shop and that the commercial complex as per sanctioned map has already been constructed by the landlord-respondents over the land in question and the only shop is of the petitioner which obstructed the front portion of the newly constructed commercial complex. Under the circumstances, the bonafide need of the landlordrespondents stands proved under Section 21(1)(a) of U.P. Act 13 of 1972. Under the circumstances, the conduct of the tenantpetitioner in not vacating the shop, cannot be appreciated, inasmuch as he is the only tenant, who is obstructing better

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beneficial use of the commercial complex by the landlordrespondents.

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(viii) Under the facts and circumstances of the case, the findings of both the courts below with regard to bonafide need of the plaintiff-landlord/respondents cannot be said to suffer from any legal infirmity. The findings recorded by the courts below are findings of fact, which are based on relevant evidences on record.”

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14. Reliance has been placed upon decision of Apex Court in case of Rishi Kumar Govil vs. Maqsoodan and others, 2007 (2) ARC 1 , Para 19, which is extracted hereasunder:-

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“19. In Ragavendra Kumar v. Firm Prem Machinery and Co., AIR 2000 SC 534 : 2000 SCFBRC 24 , it was held that it is the choice of the landlord to choose the place for the business which is most suitable for him. He has complete freedom in the matter. In Gaya Prasad v. Pradeep Shrivastava, AIR 2001 SC 803 : 2001 (1) ARC 352 it was held that the need of the landlord is to be seen on the date of application for release. In Prativa Devi (Smt.) v. T.V. Krishnan, 1996 (5) SCC 353 it was held that the landlord is the best judge of his requirement and Courts have no concern to dictate the landlord as to how and in what manner he should live. The bona fide personal need is a question of fact and should not be normally interfered with. The High Court noted that when the Prescribed Authority passed the order son of the respondent-landlady was 20 years old and the shop was sought to be released for the purpose of setting him in business. More than 20 years have elapsed and the son has become more than 40 years age and has not been able to establish him as she has still to get the possession of the shop and the litigation of the dispute is still subsisting. The licence for repairing fire arms can only be obtained when there is a vacant shop available and in the absence of any vacant shop, licence cannot be obtained by him. Therefore, the High Court came to the conclusion concurring with that of the Prescribed Authority and Appellate Authority that the need of the landlady is bona fide and genuine. Considering the factual findings recorded by the Prescribed Authority, Appellate Authority and analysed by the High Court, there is no scope for any interference in this appeal which is accordingly dismissed. However, considering the period for which the premises in question are in the occupation of the appellant time is granted till 31^st December, 2007 to vacate the premises subject to filing of an undertaking before the Prescribed Authority within a period of 2 weeks to deliver the vacant possession on or before the stipulated date. There will be no order as to costs.”

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15. Reliance has been placed in case of Ram Prakash Gupta vs. 1^st Additional District Judge, Badaun and others, 1990 (1) ARC 435 , Para 14, which is extracted hereasunder:-

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“14. Applying the ration of the above mentioned case that landlord, who desires to live independently and set up his business, has a valid right to do the same. He cannot be compelled to live on the earnings of his sons if he is physically fit to run the business. In the instant case nothing has been shown by the petitioner that the landlord was suffering from any ailment or was unable to start his own business. The finding recorded by the Appellate Authority that need of the landlord was bona fide and genuine, and greater hardship would be caused to the landlord in case the shop was not released, suffers from no error apparent on the face of the record. Both the findings are findings of the fact and cannot be interfered with by this Court in writ jurisdiction under Article 226 of the Constitution. This Court while exercising powers under this provision is not exercising appellate powers but is exercising supervisory power only as held by the Supreme Court in AIR 1978 SC 29 : 1981 ARC 470 (SC), Muni Lal and others v. Prescribed Authority and others .”

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16. Reliance has been placed in case of Radhey Shyam and another vs. Smt. Guddi Devi, 2016 (1) ARC 548 , Para 13 and 15, which are extracted hereasunder:-

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“13. So far as the family partition is concerned, there is nothing on record to disprove this fact. Moreover, after an arrangement is made between the heirs of the original landlord Sri Darshan Lal and no other co-owner had come-forward to object the release, it would not be open for the tenant to raise any objection against the family settlement. The settlement is between the family members of the original landlord Sri Darshan Lal and admittedly no one has come-forward to object the release. This ground of challenge, therefore, is without any force. There is nothing on record to suggest that the adjacent shop no. 86/11 which is stated to be vacant is in the ownership of the landlady and is in her vacant possession. Hence, this assertion cannot be looked into that too when raised for the first time in the present writ petition without any other material on record.

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15. Fourth proviso to sub-section (1) of section 21 provides that the Rent Controller Authority shall take note of the likely hardship to the tenant from the grant of the application as against the likely hardship to the landlord from the refusal of the application and for that purpose all the factors have to be taken into consideration. The question of goodwill as raised by the petitioner has been considered by the appellate court. However, upon comparison of likely hardship of both the landlady and the tenant, it was found that admittedly the tenant would suffer some hardship but in case the release is refused, the landlady will be deprived of his livelihood as she will not be able to start her business. She has no other source of livelihood. The comparative hardship of the parties, therefore, rightly tilted in favour of the landlady.”

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17. Sri Upadhyay, learned counsel appearing for tenant-respondent

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submitted that appellate court had rightly allowed the appeal and dismissed the release application as petitioner-landlady was having alternative shop which was vacant and the present need set up by her was not genuine and was false. He next contended that in fact in the year 2006, the landlady had got constructed five shops on the ground floor and five shops on the first floor just 50 yards away from the shop in dispute. He next contended that the elder son of the tenant was living separately and was carrying on separate business. He next contended that no partition had taken place between landlady and her daughter and in fact the shops which are alleged to be constructed by in-laws of her daughter in the year 2006 were constructed by her and some of the shops are vacant. He then submitted that the hardship of tenant was more than the landlady as she was already having alternative accommodation.

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18. Having heard learned counsel for the parties and from perusal of material on record, it is not in dispute that originally release application was filed by Mohammad Jamil, husband of petitioner, who unfortunately died in the year 2005 and subsequently the petitioner along with her son was substituted and the petitioner raised her need and sought release of the half portion of the shop in question for starting up business of sewing, embroidery and boutique. The release application was contested by tenant -respondent on the ground that after the retirement of Mohammad Jamil from Fetilizer Corporation, he had received retiral dues which were kept in fixed deposit and were earning interest and, thus, there was no need for release of the shop either in favour of Mohammad Jamil or the present landlady. It was also stated by tenant that petitioner had got constructed some shops nearby the shop in question which were let out by her in the year 2006. The said fact was rebutted by landlady in her replication as well as in the additional replication filed by her on the ground that land at Dhamal was sold by her husband in the year 2002 for arranging money for marriage of their children and the House No. 58 which is now 72-B was given to her daughter, Nazia Iram in partition and the shops were

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constructed by her in-laws in the year 2006 and had no concern with the same. Moreover, the accommodation with Javed Diar was denied on the ground that it was in a dilapidated condition and was not in her occupation. Except the two shops which are fetching the rent of Rs.800/-, the landlady had no accommodation. The Prescribed Authority after considering the pleadings as well as affidavits filed in evidence from both sides found that need of the landlady was genuine and comparative hardship tilted in favour of landlady, granted release of half of western shop in favour of the landlady.

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19. The appellate authority while setting aside the order of Prescribed Authority seems to have been swayed away by affidavits filed by various witnesses from the tenant side in respect to the old age of landlady and she being suffering from cataract, though no material or evidence was filed in support of their claim in the affidavits that landlady was suffering from weak eye sight. The appellate court without reversing the finding recorded by the Prescribed Authority considering the various affidavits came to the conclusion that landlady being 72 years of age was not capable of running business of sewing, embroidery and boutique and looking to her health it was not possible for her to start such business and her need was not genuine and bona fide .

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20. It has been constant view of Apex Court that landlord is best judge of his requirement and Courts have no concern to dictate landlord as to how and in what manner he should live. The bona fide personal need is a question of fact and should not be normally interfered with. ( Prativa Devi (Smt.) v. T.V. Krishnan, 1996 (5) SCC 353) .

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21. Similarly, in Ram Prakash Gupta (supra) it was held that a landlord cannot be held to live on the earnings of his sons if he is physically fit to run the business.

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22. In Radhey Shyam (supra), co-ordinate Bench of this Court while dealing with family partition (arrangement) held that when there was

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nothing on record to disprove the fact of partition which was made between heirs of original landlord and no other co-owner had come forward to object the release, it would not be open for tenant to raise any objection against family settlement, as it is between family members of original landlord.

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23. In the present case, the appellate court wrongly recorded finding that no document was filed on behalf of landlady to prove the partition which has taken place and the property given in partition to her daughter, Nazia Iram. It was sufficient to state that House No. 58 was given to her daughter and in-laws of her daughter had constructed shop in the year 2006 and moreover the letter written by the landlady to the officer of Nagar Nigam for mutating the property in name of her daughter was more than enough to prove the factum of partition. As neither her daughter or her son had objected to the said fact, the tenant could not have raised such issue.

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24. The appellate authority without reversing the finding recorded by Prescribed Authority substituted its own view and solely relying upon affidavits of witnesses filed in support of the tenant held that landlady was old and was suffering from cataract and could not carry on the business of sewing, embroidery and boutique.

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25. The appellate court could not disentitle landlady on the strength of her old age and finding recorded was not on the basis of any evidence and was only on the statement given in form of affidavit.

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26. On the contrary, the landlady by her pleadings and affidavit had denied the factum of construction of any shop by her in the year 2006 as well as any shop in possession of Javed Diar. As far as shop let out to Haroon Rashid is concerned, it was let out to him by her husband after the same was vacated by tenant running the shop in the name of Durga Saree Center.

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27. In the instant case, the Prescribed Authority has partly allowed the

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release application, releasing half of the western portion of shop in favour of landlady, thus, upon comparison of likely hardship of both the landlady and tenant, it is found that admittedly the tenant would suffer some hardship but in case the release is refused, the landlady would be deprived of her livelihood as she will not be able to start her business. She has no other source of livelihood. The comparative hardship of the parties, therefore, rightly tilted in favour of landlady.

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28. Considering the facts and circumstances of the case, this Court finds that order passed by appellate court is unsustainable in the eye of law and the same has been passed misreading the pleadings of the parties and affidavits filed from both sides. The release application for half portion of the shop in question was perfectly maintainable at the instance of the applicant-landlady. Thus, the order dated 19.12.2017 passed by appellate authority is hereby set aside and the order of Prescribed Authority is hereby affirmed.

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29. Writ petition stands allowed.

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Order Date :- 8.12.2021 V.S.Singh

Smt. Naznin Jamil v. Natwar Nanda Kedia and Another

Case brief

What is this about?

What did the court decide?

Smt. Naznin Jamil v. Natwar Nanda Kedia and Another

Case brief

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What the court decided

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