Mohan Lal Arora And Another vs Rama Kanti Agarwal And Another

Heard Ms. Rama Goel Bansal, learned counsel for the petitioners (hereinafter referred to as the 'tenant') and Sri Subodh Kumar, learned counsel for the respondents (hereinafter referred to as the 'landlord') and perused the record.

Learned counsel for the landlord submits that he does not want to file any counter affidavit, therefore, with the consent of parties the matter was finally heard and the judgement was reserved.

Present petition has been filed challenging the judgement and order dated 2.12.2020 passed by the Additional District and Sessions Judge, Court No. 10, Bareilly passed in Rent Control Appeal No. 35 of 2013 and 39 of 2013 and the judgement and order dated 22.7.2013 passed by the Prescribed Authority in PA Case No. 3 of 2011 upto the extent by which the release application was allowed in respect of shop no. 327-A Siklapur, Bareilly.

Shorn of details, brief facts of the case are that the release application under Section 21(1)(a) of UP Act No. 13 of 1972 (hereinafter referred to as the 'Act') was filed by the landlord on the ground of the need of his grandson Naveen Agarwal, who is carrying on business of foam mattresses and curtain material and allied items, on the ground floor portion of the residential house being run in the name and style of 'M/s. Lovely Foam'. It was alleged that since he is running his business in the rear portion of the building, his business is not that much flourishing as it is not on the main road and therefore, he is not having sufficient income and the tenanted shop is required for bringing his business on the front side so that it may flourish and run property. The tenanted accommodation was described as two shops being Shop-A i.e. Shop No. 327-A/448 and Shop-B i.e. Shop No. 327-B/448 both situated at Siklapur, Bareilly College Road, Bareilly, which are in possession of two real brothers (tenant no. 1 and tenant no. 2). In paragraph 14 of the release application, it was specifically asserted that the tenants are having other shops in Nagar Nigam Complex in their names near the shops in question. It was specifically stated that the tenant no. 1 is having shop no. 10 in Nagar Nigam Complex (New College Road Market), Bareilly whereas tenant no. 2 is having shops no. 1, 3 and 7 in his name in the same Nagar Nigam Complex and therefore, their business is not much in the tenanted accommodation and therefore, the release application is liable to be allowed. It was also asserted that in fact, there had been a partition in these two shops, which was removed and both the brothers are doing their business on the shops in question.

The release application was contested by the tenants by denying the allegations made in the release application and it was submitted that the business of Lovely Foam is being run from a big showroom of 25 feet x 20 feet while each shop in question is only 9 feet x 12 feet and therefore, there is no requirement of additional accommodation. It was further asserted that the grandson of the landlady Naveen Agarwal is having quite big showroom and road in front of that shop is quite wide and shops in question are not required. In reply to the contents of paragraph 14 of release application it was stated that the shop no. 10 of Nagar Nigam Complex, the eldest son of tenant no. 1 Ashish Arora is separately carrying on electrical goods business whereas shop no. 3 and 7 of Nagar Nigam Complex are wrongly named as Shops whereas it is residential premises of tenant no. 2 and shop no. 1 in the same complex is being used by the wife of tenant no. 2 who is running photostat business in that shop. Therefore, it was asserted that alternative accommodation is not available to the tenants and they have big families and would suffer greater hardship.

Additionally, ownership of the landlord was also sought to be disputed and the case was taken that the shops in question are a new construction on which the Rent Control Act is not applicable. It was asserted that the tenanted accommodation turned into khandahar (ruin), which was constructed by the tenants from their own funds and therefore, ownership does not belong to the landlady who had filed the release application.

The trial Court on the issue of relationship of tenant-landlord found that the applicant is landlady of the shop in question and that the tenants could not prove that they have re-constructed the shop and it was a new construction. On the issue of bona fide need, the need of the grandson Naveen Agarwal of the applicant was found to be genuine and bona fide as he has to connect the existing shop with the new shop and bring the same on the main road and that since the tenants cannot dictate the terms to the landlord as to how he should carry on his business and that the need was to augment his income and for expansion of his business. However, release application was allowed in part by releasing shop no. 327-A. Relief in respect of shop no. 327-B was rejected.

The landlord and tenant both being aggrieved by the said judgement of trial court filed two separate appeals, which were clubbed together by the lower appellate court and were decided by a common judgement. Rent Control Appeal No. 35 of 2013 was filed by Mohan Lal Arora, who is in occupation of shop no. 327-A. Against the refusal of relief in respect of shop no. 327-B the landlady filed the appeal. Learned appellate court upheld the bona fide need of the landlord and set aside the order of part release and the second shop being shop no. 327-B was also ordered to be released in favour of the landlady. Now both the tenants being aggrieved by the judgement of the lower appellate court are before this Court and have filed the present petition challenging the said impugned orders.

Ms. Goel, learned counsel for the tenants submitted that the lower appellate court has not considered the issue of bona fide need of the landlord and only judgements have been referred to but no independent findings have been recorded. She next submitted that the lower appellate court failed to consider the impact of application being paper no. 89Ga, which was filed by the tenant-appellant before the lower appellate court accepting the offer of the landlord regarding part release of the shop. Drawing attention to annexure 1 to the supplementary affidavit, it was submitted that on this application an endorsement was made by a learned counsel that application may be allowed if hardship found by fixing rent and accommodation. Submission, therefore, is that only part release of the tenanted accommodation should have been allowed. She submitted that during course of pendency of petition, the encroachment in front of the shop of Navin Kumar Ms/ Lovely Foam under Swachhata Abhiyan including dairy etc. was removed and therefore, about 23 feet wide road free from all encroachment etc. was sufficient and need to shift the 35 feet wide road is not genuine and bona fide in nature. In this regard, attention was drawn to annexure 8 to the petition, application filed under Order 41 Rule 27 CPC before the prescribed authority. Submission, therefore, is that in view of the said development the need to shift property on 35 feet wide road stands extinguished. Attention was also drawn to the map annexed with the paper book. Submission is that judgement of the lower appellate court is illegal and suffers from material irregularity and in any view of the matter, the issue of part release has been incorrectly rejected by the lower appellate court. In support of his arguments, learned counsel for the tenants has placed reliance on various judgement rendered in the case of Smt. Raj Rani Mehrotra vs. IInd Addl. District Judge and ohters, 1980 ARC 311, Satwant Kaur vs. Dhund Singh, 1984 (1) ARC 183, Ramesh Chandra Kesharwani vs. Dwarika Prasad and another, 2002 (2) ARC 298, Pratap Narain Tandon vs. Abdul Mukatadir, 2005 (1) ARC 555, Ram Swaroop vs. The District Judge, Etah and others, 1983 ARC 464, Ram Dass vs. Ishwar Chander and others, 1988 Supreme Court & Full Bench Rent Cases 376.

Per contra, learned counsel for the landlord, drawing attention to paragraphs 9 and 10 of the release application, submitted that at present Naveen Agarwal is carrying on business of foam and mattress on the ground floor of the residential building of the applicant, which is a narrow lane of 23 feet wide whereas front side of main road is 35 feet. He next submits that the specific case of the applicant is that the tenants have sufficient accommodation available to them to shift their business. He submits that this fact is admitted in the written statement, however, only this much was asserted that out of several shops stated to be in possession of the tenants, two shops are, in fact, residence and the other two shops are in occupation of other family members and therefore, he submits that the tenants have sufficient accommodation in their possession. Attention was drawn to paragraph 15 of the written statement in this regard. He submits that both the courts below have found the need to be bona fide and genuine and the trial court committed great mistake in releasing shop no. 327-A in favour of tenant no. 1 whereas requirement is of the entire tenanted accommodation. He submits that this grave mistake was rightly corrected by the lower appellate court by releasing the tenanted accommodation. Submission, therefore, is that part release would serve the purpose of the landlady, is incorrect and is liable to be rejected and no interference is required in the judgement and order impugned herein passed by the lower appellate court releasing the entire accommodation. He next submits that application being paper no. 89Ga was filed by the tenant making his own assertions in the application and that even if any endorsement was made by a counsel of the applicant, the same would not bind the applicant and in any case the same was also conditional in nature. In support of his submissions, learned counsel for the landlord has placed reliance on the judgements rendered in the case of Satya Prakash Alias Satto and 2 others vs. Rajendra Kumar, 2018 (1) ARC 272, Praveen Kumar Jain vs. Kamal Gupta, 2019 (1) ARC 905, Avinash Chandra and others vs. VIIth Additional District Judge/Appellate Authority of Ghaziabad and others, 2008 (1) ARC 812, Sardar Gur Charan Singh vs. Purushottam Das, 2001 (1) ARC 98.

I have considered the rival submissions and perused the record.

On perusal of the record, I find that both the courts below have found the need of the applicant as genuine and bona fide. It is also not in dispute that several shops, at least four shops, are in possession of the tenants and/or their family members in Nagar Nigam Complex, which is also on the same road i.e. New College Road Market, Bareilly. Admittedly, two shops are being said to be occupied by the family members of the tenants themselves. Two shops are being asserted to be residential accommodation and not the shop. Prima facie, the defence taken in paragraph 15 of the written statement does not inspire confidence in absence of evidence given by the tenant that shops no. 3 and 7 of Nagar Nigam Complex are wrongly named as shop of tenant no. 2 wherein the family of the tenant no. 2 resides. The address of such premises is not in dispute, which is stated to be in Nagar Nigam Complex (it is new college road market, Bareilly). Two other shops are admittedly the shop in the same market and are being used by the tenants and/or their family members for commercial activity. In such view of the matter, in absence of any evidence, prima facie, it does appear that said premises are available for commercial activity as an alternative accommodation to the tenants.

Crux of the argument of learned counsel for the tenant is that even if the release application has any substance, only the part release should have been considered and this question should have been considered by the lower appellate court, which the lower appellate court has failed to observe. It is submitted that it is the settled law that question of part release can also be considered by the courts below in case of non-residential building. I find that there is no quarrel with law. However, I am of the opinion that such question of part release in case of non-commercial residence should be used in case of extreme hardship being faced by the tenant. In the present case, the accommodation shown in the possession of the tenants is not in dispute, however, out of two alleged shops, two shops are being described as residence by the tenants. Of course, there is no evidence on behalf of the landlord also on this aspect, however, the address as given and the nature of the premises where other premises, which are described as shop, is not disputed and existence of all such property in the same complex, which is stated to be a market, has also not been questioned by any of the parties. It is the settled law that landlord has every right of expansion of his business to augment his income. It is not in dispute that location of the business being run in the name and style M/s Lovely Foam is in the side lane whereas in case, shops in dispute are released in favour of the landlord, entire property will be connected and the entire showroom would be and/or connected to the main road. It is also admitted case of the parties that the side lane is about 23 feet wide whereas the front road is the main road and 35 feet wide. It is also not in dispute that nature of the business i.e. foam and mattress etc. is of such nature, which requires large space for running the business.

Insofar as the application being paper no. 85Ga filed by the applicant is concerned, even it is accepted that the endorsement was made by a counsel for the applicant, the same was conditional in nature to the extent that only if any hardship of the tenants is found, in that case application may be considered and allowed. Once the appellate court did not find any hardship of the tenants and consequently, no substance was found in the appeal filed by the tenant and the appeal of the landlady was against partial rejection of the release application, which was allowed, the stage for consideration of that application did not arise. Therefore, it cannot be said that there was material irregularity in non-consideration of that application, paper no. 85Ga.

In the totality of circumstances of the case, I do not find the judgement of the lower appellate court to be perverse in nature or that the same is not based on material available before the court below.

For the discussions made hereinabove, this Court is of the opinion that no interference is warranted in the impugned orders in exercise of powers under Article 226 of the Constitution of India.

Present petition is, accordingly, dismissed.

However, having considered the facts and circumstances of the case, subject to filing of an undertaking by the petitioner-tenant before the Court below, it is provided that:

(1) The tenant-petitioners shall handover the peaceful possession of the shops in question to the landlord-respondent on or before 31.8.2021.

(2) The tenant-petitioners shall file the undertaking before the Court below to the said effect within two weeks from the date of receipt of certified copy of this order;

(3) The tenant-petitioners shall pay damages @ Rs. 2,000/- per month for each shop by 07th day of every succeeding month and continue to deposit the same in the Court below till 31.8.2021 or till the date he vacates the premises, whichever is earlier and the landlord is at liberty to withdraw the said amount;

(4) In the undertaking the tenant-petitioners shall also state that he will not create any interest in favour of the third party in the premises in dispute;

(5) Subject to filing of the said undertaking, the tenant-petitioners shall not be evicted from the premises in question till the aforesaid period;

(6) It is made clear that in case of default of any of the conditions mentioned herein-above, the protection granted by this Court shall stand vacated automatically.

(7) In case the shop is not vacated as per the undertaking given by the tenant, he shall also be liable for contempt.