Mullan Yadav vs Additional District Judge, Court No.9, Varanasi and Others

Rakesh Tiwari, J.—Heard counsel for the parties and perused the record.

This writ petition is directed against the judgment and order dated 10.10.2006 passed by the Additional District Judge, Court No.9, Varanasi dismissing Rent Appeal No.195 of 2004 filed by the petitioner and affirming the judgment and order dated 8.9.2004 passed by the Prescribed Authority/Additional Civil Judge (Senior Division), Varanasi.

The petitioner is tenant of the shop situate at CK37/31 Kotwalpura, Bans Phatak, Varanasi. It was allotted by the Rent Control and Eviction Officer/Additional District Magistrate (Supply), Varanasi to him on monthly rent of Rs.800/ vide order dated 12.8.2003. The petitioner is running a sweet shop in the aforesaid accommodation since 1993. After the death of landlord Sri Markande Pandey the rights of the landlord devolved upon respondent Nos.3 and 4, his sons. They filed a suit under Section 21(1)(a) of U.P. Act No.13 of 1972 before the Prescribed Authority/Additional Civil Judge (Senior Division), Varanasi for release of the shop in question on the ground of bona fide need of shop for respondent No.4 who was unemployed. The application was registered as P.A.Case No.7 of 2003.

The case of the respondents was that the shop in dispute was required for business of �Fast Food Corner� by respondent No.4.

The petitioner denied the allegations of the plaintiffrespondents and stated that the intention of the respondents for moving release application was to evict the petitioner and thereafter let out the shop in dispute to some other person on higher rent, after taking premium from him and that Case No.8 of 1998 was filed by the respondentlandlords in the Court of Judge Small Causes Court, Varanasi was based on incorrect facts and forged documents. A specific objection was taken by the petitioner that his house is situated much away from the main road and there being no direct passage to his house it could not be used for business purpose, hence he can not shift his business there. It was also stated that the landlords had surplus accommodation in the shape of a hall in his residential house in which he could start his business of Fast Food, if he so desired.

The Prescribed Authority/Additional Civil Judge (Senior Division), Varanasi vide order dated 8.9.2004 allowed the application of the landlords, respondent Nos.3 and 4 directing the petitioner to vacate the shop in question. Considering the bona fide need and comparative hardship of the parties the Court found that the shop in dispute under the possession of the petitioner is perfect for the business of Fast Food Corner for the respondentlandlords. It held that there is no force in the contention of the learned counsel for the petitioner that his house is situated in Gali much away from the main road and market in which business could not be done as the shop in dispute is also situate in Gali. Considering all the aspects of the matter the Prescribed Authority also held that the petitioner can shift his business easily in his house and will not suffer any financial loss. The Court further held that the need of the landlords was bona fide and they would suffer comparatively more hardship if the shop in dispute is not release in their favour as such it should be vacated by the petitioner for which two years rent as compensation shall be payable to him by the landlords. The operative portion of the order dated 8.9.2004 of the Prescribed Authority is as under:

Aggrieved by the above order dated 8.9.2004 the petitioner preferred Rent Appeal No.195 of 2004 before the Appellate Court which was also dismissed vide order dated 10.10.2006.

The Appellate Court also considered the contention of the petitioner in appeal that there is no direct passage to his house as he has to go through the common passage from another person''s house and that a hall was available to the respondentlandlords in the residential building which was used by their father who was a lawyer as his office, which is also being raised before this Court. The relevant extract of the order is as under:

From the record it is apparent that the petitionertenant has made a statement before the Court below that the hall inside the residential premises of the petitioner is not appropriate for doing business. After going through the record and evidence the Appellate Court came to the conclusion that it is an admitted fact that the landlords have no other accommodation to shift their business and that the contention of the tenant that there was no bona fide need of respondent No.4 for shifting himself in the business of ''Fast Food'' as he was working as Contractor was vague and unjustified. The Appellate Court came to the conclusion that the petitioner has failed to establish that Sri Anoop Kumar Pandey, respondent No.4 in the present writ petition was working as contractor and that even if it is presumed that respondent No.4 was working as contractor, the said work can not be said to be a regular work and until and unless it is established by record and evidence what type of work is being done by him and that he is earning regular income by such business. The findings are as under:

It found respondent No.4 was unmarried, with the advancement of age he will not be able to do hard work, as such it can not be said that he had no bona fide need to shift himself in the business which is less taxing from which he could have permanent income. The Court has held that in the facts and circumstances of the case the bona fide need and comparative hardship of the respondentlandlords was greater than the petitionertenant and further that even if the tenant has to pay higher rent in getting another shop nearby, the comparative hardship will not be in his favour.

The Appellate Court lastly gave a finding of fact that the petitioner has not made any effort to search and shift in a suitable alternative accommodation inspite of the release application being filed while holding that there is no evidence that the petitioner will rent out the shop on premium. The Appellate Court confirmed the judgment and order dated 8.9.2004 passed by the Prescribed Authority while dismissing the appeal of the petitioner. The findings of the Appellate Court are as under:

This writ petition has been filed against the concurrent findings of fact of the Appellate Court dated 10.10.2006 dismissing Rent Appeal No.195 of 2004 filed by the petitioner and judgment and order dated 8.9.2004 passed by the Prescribed Authority/Additional Civil Judge (Senior Division), Varanasi filed by respondent No.3 under Section 21 of U.P. Act No.13 of 1972.

The appellate Court has rightly come to the findings that the petitioner can shift his business to his house, which incidentally according to the petitioner has no direct passage as admittedly, the petitioner uses a common passage to reach there. A common passage is one not under exclusive use and possession of a person i.e. on which there is no right of any person, hence it can be used by all or any person who has to come to the house of the petitioner. In any case the Court has made it open to the petitioner that he could have taken a shop on higher rent if the house in which he is living is not suitable for the purpose of his business.

There is no evidence on record or any averments to show that the petitioner had tried to search out a suitable accommodation for shifting his business even on higher rent at any place nearby. The petitioner is having one shop in his house, he can do there. Once a release application is filed by the landlords it is obligatory and mandatory upon the tenant under the Provisions of the Act at least make some efforts to search out the alternative accommodation irrespective of the orders of the Prescribed Authority or the Appellate Authority or the Revisional Court.

In view of the concurrent findings of facts recorded by both the Courts below regarding bonafide need and comparative hardship of the landlords and in view of the fact that the petitioner has not been able to show any illegality or infirmity in the impugned orders, the writ petition is dismissed. No order as to costs.

The petitioner shall handover peaceful and vacant possession of the shop in dispute to the respondentlandlords within a period of two months from the date of production of a certified copy of this order. In case the petitioner fails to comply with the directions given by this Court within the stipulated time, it is open to the landlords to get the petitioner evicted by assistance of police force.

No order as to costs.

(Petition dismissed)