Mohd. Subrati vs Mohd. Raees

Manoj Misra, J.—Heard learned counsel for the petitioner; Sri Kashif Zaidi for the plaintiff-respondent no.1 and perused the record.

The present petition has been filed by the tenant challenging the order of release dated 22.12.2009 passed by the Prescribed Authority/Civil Judge (Senior Division), Etawah in P.A. Case No.14 of 2003 by which the shop in question has been released in favour of the landlord under Section 21(1)(a) of U.P. Act No.13 of 1972. The petitioner has also challenged the order dated 20.12.2016 by which the Additional District Judge/Special Judge (E.C. Act), Etawah (Appellate Authority) has dismissed P.A. Appeal No.1 of 2010 preferred against the order dated 22.12.2009.

The respondent no.1 (landlord) filed release application against the petitioner for release of the shop in dispute in his favour to enable him to do general merchandise business. It was claimed that the landlord was not gainfully employed and, therefore, the shop in question was required. The release application was contested by taking a plea that in the house of Mohd. Akhtar (the father of the release applicant) a power loom was operating by which garments, etc., were prepared and the entire family of the release applicant was involved in that business and, therefore, the release applicant had no bona fide need for the shop in question. In addition to above, it was pleaded that the tenant had been doing business from the disputed shop for a long period of time and had earned goodwill. Therefore, in case the release application is allowed, he would suffer greater hardship.

The Prescribed Authority by judgment and order dated 22.12.2009 allowed the release application by recording a finding that the release applicant was a handicapped person, which was substantiated from his handicap certificate paper 28-Ga, and because of his physical handicap, he cannot run the power loom business on his own and, therefore, his need for setting up a general merchandise shop in the premises in dispute was genuine and bona fide. The Prescribed Authority, thereafter, compared the hardship and found hardship greater for the landlord in the event of rejection of his release application than for the tenant in case of allowing of the release application. Accordingly, the Prescribed Authority directed release of the accommodation in favour of the release applicant.

An appeal was preferred against the order passed by the Prescribed Authority. During the pendency of appeal, the petitioner filed an amendment application seeking amendment in the written statement to incorporate a plea that during the pendency of the appeal, the release applicant had taken employment as a Tube-well Operator in Nagar Palika and, therefore, whatever need he had stood satisfied. It appears that the release applicant in response to the above plea, submitted material to disclose that he was only temporarily employed as a Tubewell operator and that his employment stood terminated.

The appellate court came to the conclusion that no case was made out to set aside the order passed by the Prescribed Authority which was based on proper consideration of the material on record. The appellate court also came to the conclusion that the temporary employment of the release applicant would not extinguish the need. It placed reliance upon a decision of this Court in 1990 (1) ARC Page 20 Prem Prakash Dhawan and another v. Special Judge (Additional District Judge), Saharanpur and others wherein it was held that if during pendency of the proceeding landlord is forced to take temporary employment that by itself would not extinguish his need for permanent settlement. The Court, thereafter, proceeded to examine the plea of good will set up by the tenant-petitioner and after examining various aspects, came to the conclusion that the findings returned by the Prescribed Authority on the question of bona fide need and comparative hardship did not require any interference. The appeal was accordingly dismissed.

The learned counsel for the petitioner submitted that the release applicant had not approached the court with clean hands because in the release application there was no disclosure that a power loom was being run from his own residence. It has been submitted that since the release applicant had not come with clean hands before the court, the court ought not to have accepted the need set up and instead ought to have drawn adverse inference against the landlord-respondent. The learned counsel for the petitioner also submitted that the appellate court on its own has not recorded findings on bona fide need and comparative hardship and its judgment only notices the submissions made without proper analysis of the material on record and without recording findings as is required in a case where release of a shop is sought. It has been submitted that it is well settled in law that to allow a release application the court must record finding as regards bona fide need as well as comparative hardship in favour of the release applicant. But since specific findings have not been returned by the appellate court, the appellate order stands vitiated and the matter requires to be remanded back. In addition to above, it has been submitted that there is no proper consideration of the mandate of Rule 16(2) of the Rules framed under the U.P. Act No.13 of 1972 which requires the Prescribed Authority to accord consideration on various aspects mentioned therein in respect of release of a shop.

Per contra, the learned counsel for the landlord-respondent submitted that since the Prescribed Authority had recorded detailed reasons for the findings and there was no serious challenge to the finding in respect of bona fide need of the release applicant in the memo of the appeal, particularly, because the only ground taken to challenge the need was that the family of the release applicant was running power loom from their own home, the appellate authority was justified in dealing with the submissions raised and testing the finding returned by the Prescribed Authority. More so, because it was a judgement of affirmance and not of reversal, therefore, detailed recording of reasons was not required.

I have considered the submissions of the learned counsel for the parties and have perused the record carefully.

A perusal of the record would go to show that the need set up in the release application was for settling the release applicant in an independent business. The said need was contested by claiming that the landlord''s family was engaged in running a power loom from their own residence. The court below came to the conclusion that the release applicant was a handicapped person and he could not on his own run a power loom and, therefore, he would have to depend on others. It was found that being a handicapped person, he needed the shop in question for opening a general merchandise shop to ensure independent settlement/employment. The view taken by the Prescribed Authority is in consonance with legal principles because no one can be forced to remain dependent on others. The court has to be sensitive towards the need of differently abled person and examine the same in the context in which it has been set up. In so far as the contention that the landlord had not come with clean hands before the court, suffice to say that it is not the case of the defendant that the landlord himself was running the power loom. Rather it is the case of the petitioner that the landlord and his family was running the power loom from their own residence. Under the circumstances, if there is non disclosure of the business run by the family from the house, it cannot be fatal to the need set up by the landlord, which was for independent establishment considering his handicap.

As regards the submission that the appellate court has not properly recorded finding in respect of bona fide need and comparative hardship, suffice to say that the judgment of the appellate court was of affirmance. While writing a judgment of affirmance an appellate court is required to address various points urged before it for setting aside the judgement under appeal and, thereafter, to record its satisfaction whether on the submissions made a case to interfere with the order impugned is made out or not. While doing so, the appellate court has power to reassess the evidence and come to its own conclusion if it finds that the trial court''s judgment does not properly appreciate the evidence on record. But while writing a judgment of affirmance if the appellate court deals with the submissions raised and finds no good reason to interfere with the findings returned by the trial court its judgment would not be vitiated merely because it does not rewrite the entire evidence laid before the court by the parties.

A perusal of the judgement passed by the appellate court would reveal that various submissions, which were advanced before the appellate court, have been discussed and dealt with by the appellate court though the appellate court may not have independently discussed the entire evidence as to how there existed a bona fide need for the shop in question.

Once it is the admitted position that the release applicant was a disabled person and the court below has recorded a finding that he could not do business of running a power loom on his own therefore, for the purpose of opening general merchandise shop, the shop in question was required for his independent settlement, this Court does not find any good reason to interfere with the finding of bona fide need recorded by the courts below merely because his family was operating a power loom.

As regards the contention that there is no proper discussion on various parameters provided in sub-rule (2) of Rule 16 of the Rules framed under the U.P. Act No.13 of 1972, this Court finds that the appellate court has discussed the plea in respect of good will earned by the tenant and after considering all aspects as also that the release applicant was a handicapped person, came to the conclusion that comparative hardship was greater for the landlord in case of rejection of the release application than it would be for the tenant in case of allowing of the release application. The court below has also observed that the temporary employment obtained by the release applicant during the pendency of the appeal would not extinguish the need set up for permanent settlement by obtaining possession of the shop in question and, accordingly, the order passed by the Prescribed Authority was affirmed.

I do not find any legal error in the order passed by the courts below which may call for interference in exercise of power under Article 227 of the Constitution of India.

At this stage, learned counsel for the petitioner prayed that some time may be allowed to the petitioner to vacate the premises because one of the sons of the tenant is also handicapped and he may require some time to search for alternative accommodation.

In view of the discussion made above, this Court finds no good reason to interfere with the impugned orders. However, considering the facts and circumstances of the case, it is provided that the petitioner will have time up to 31st August, 2017 to vacate the premises provided the petitioner along with other defendants submit an undertaking before the Prescribed Authority, Etawah that they shall handover vacant and peaceful possession of the shop in question to the landlord-respondent by 01st of September, 2017. It is made clear that if no undertaking is submitted by the petitioner as well as other defendants, as provided herein above, by 31st March, 2017, then it shall be open to the plaintiff respondent to execute the release order. If an undertaking is submitted by 31st March, 2017 and the premises is not vacated by 01st of September, 2017, in pursuance of the undertaking, it shall be open to the plaintiff 7 respondent not only to execute the release order but also to initiate contempt proceedings against the persons who violate the undertaking.

With the aforesaid observations, the petition is disposed of.