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Judgment
Prakash Krishna, J.—This is a landlord''s writ petition. It arises out of release application field the landlord u/s 21(1)(a) of U.P. Act No. 13 of 1972 for releases of a godown in possession of the respondent No. 2 herein, on a monthly rent Rs. 34.64 on the ground floor of premises No. 69/117. The petitioner claimed itself as a Hindu undivided family of which Ram Niwas was the Karta who died during the pendency of the present writ petition on 15-3-2005 and a substitution application No. 129893 of 2005 to substitute his heirs was allowed by the order dated 2-5-2007. The said Hindu family consists of 11 family members in all. The Karta had four married sons, namely, Radhey Shyam, Sri Ram, Nawal Kishore and Ravindra Kumar. All the sons are married and they have got their sons and daughters. It has been father Stated that out of four sons, three sons, namely, Radhey Shyam, Sri Ram and Nawal Kishore are doing their Kirana business in the name and style of Beriwal Trading Company'' and the youngest son, Ravindra Kumar is doing business in the name and style of ''M/S R.K. Enterprises''. All these sons are doing their business from the one shop situate in Ram Swaroop Market, Nayaganj, Kanpur Nagar and these businesses have their main office in Premises No. 69/117, Bhoosatoli, Kanpur Nagar wherein the godown in question is (sic) situate.
The need set up in the release application was that wife of Nawal Kishore is unable to adjust with other family members and, as such, the family of Nawal Kishore has been shifted to the ground floor of the Premises No. 69/117 in one room accommodation. There is no facility of latrine, bath room and kitchen. Also Ravindra Kumar, who is carrying on the business in the name and style of M/S R.K. Enterprises has no godown to store the goods while his other three brothers have a separate godown in the same premises No. 69/117. It was further pleaded that the tenant has been dealing in contraband items that is why the disputed shop has been sealed about three years ago (release application being filed in the year 1989) by the Excise Department and the said godown which is under the tenancy of respondent No. 2, herein is lying sealed since then and thus the tenant is not Kpne said godown for any purpose.
In Response, the respondent-tenant admitted the fact that the Excise Department has sealed the said disputed accommodation for the last more than years and it is lying as such, but he has hope that seal would be removed sood. However, the need of the landlord was denied on the ground that the landlord has got another godown in the same house and the said godown is big one and it can be utilised for the alleged need of the landlord. In para-3 of the written statement, it was further stated that recently the landlord has increased his business by taking a shop in Ram Swaroop Market, Nayaganj, Kanpur Nagar and the fact that main office is at house No. 117, Bhoosatoli, Kanpur was denied.
The Prescribed Authority by the order dated 5-8-1993 passed in Rent Case No. 57 of 1989, allowed the release application on the finding that it is possibility of the landlord to provide kitchen and amenities to his sons, Ravindra Kumar and Nawal Kishore etc. It also took into account that the godown in occupation of the respondent No. 2 herein, is lying sealed and it is not being utilised by the tenant. No benefit is being derived from the said godown by the tenant nor he is doing any business and as such, the landlord has successfully proved his need to be genuine and bona fide. The finding on the comparative hardship was also recorded in favour of the landlord.
The said order was challenged by filing appeal, being Rent Appeal No. 122 of 1993 which came up for hearing before Xth Additional District Judge, Kanpur Nagar. By the impugned order, the appeal has been allowed and the release application has been dismissed.
Sri G.L. Tripathi, learned Counsel for the petitioner submits that the view taken by the appellate court that the need of the landlord is not bona fide and genuine and it is the tenant who is suffering loss due to sealing of the disputed shop is legally incorrect. Elaborating the argument, he submits that the appellate court having not dis-believed the assertions of the landlord that there is no facility of godown to Ravindra Kumar and latrine and kitchen to Nawal Kishore''s family, it erred in rejecting the releaseapplication. In response, the learned Counsel for the respondent-tenant sported the impugned order.
The appellate court has proceeded to hold that the need of the landlord is not bonafide and genuine on the ground that he has already got a godown on the ground floor which is being used for the business purpose. As far as the need for latrine and kitchen is concerned the landlord is using the premises in his possession as such. Had he any need for such facility, he would have converted the godown already in his possession for the use of Hone and kitchen. Since the landlord has not converted the godown, which is his possession, the need, if any of latrine and kitchen for the family of Nawal Kishore, the court concludes, the need of the landlord cannot be said to be genuine and bonafide.
It is clear from the judgment of the appellate court that it has not recorded any finding nor there is any material to show that except one room on the ground floor wherein the family of Nawal Kishore is residing, there is any facility of kitchen and latrine. As regards bath-room is concerned, it was found by the appellate court that there is a small bath-room on ground floor. Further the appellate court has not correctly understood the need which was yet up by the landlord for the disputed godown. Besides the need set up for the family of Nawal Kishore for latrine and kitchen, it was also pleaded that Ravindra Kumar has no godown to store the goods in which he is dealing. It is not denied by the tenant that Ravindra Kumar is doing a separate business and he has no accommodation for godown. The appellate court thus proceeded to decide the issue ignoring the relevant pleadings and the material on record.
During the course of the argument, the learned Counsel for the respondent was asked to show any material from which it can inferred that there is a facility of godown to Ravindra Kumar and availability of kitchen and latrine to Nawal Kishore on the ground floor, but he was unable to do so. Thus, it boils down to this that the family of Nawal Kishore has no facility latrine and kitchen. The reasoning given by the appellate court to deny the relief is some what strange one. The appellate court on the presumption and assumption has negatived the release application or the ground that had there been any such need of the landlord, he would have converted the godown which is already in his possession to satisfy the said need. The said approach cannot be approved as it is no body''s case the godown which is in possession of the landlord is lying vacant or is not in use. On the contrary, the landlord in the release application itself came out with a specific case that the said godown is being utilised for storing goods of his three other sons, namely, Radhey Shyam, Sri Ram and Nawal Kishore who are carrying on the business of Kirana in partner hip under the name and style of ''Beriwal Trading Company'' at Ram Swaroop Market, Nayaganj, Kanpur Nagar wherein Ravindra Kumar is also carrying on his proprietorship business under the name and style of ''R.K. Enterprises''.
In this connection, a reference can be made to the following cases of the Apex Court:
(1) Shiv Sarup Gupta v. Dr. Mahesh Chandra Gupta (199S) 6 SCC 222 and (2) M.L. Prabhakar v. Rajiv Singal 2001 (1) ARC 382, wherein it has been held that suitability of alternative accommodation have to be seen from the convenience of the landlord and his family members and on the basis of totality of the circumstances including their profession, vocation, style of living, habit and background. These observations made by the Apex Court are relevant for the purpose of the present case in as much as indisputably the other godown which is in occupation of the landlord is being utilised and is not lying vacant for his other son. It has also come on record that all the sons of landlord are Income tax payee and the tenant-respondent No. 2 in reply to the release applicant on has buttressed this fact by taking a plea that the landlord has increased his business manifold. Thus, the requirement of kitchen and latrine for the family of Nawal Kishore, by any stretch of imagination, cannot be said to be fanciful or imaginary. These requirements are basic requirement of a human being, specially for such persons who are well placed in life and paying Income tax.
Ragavendra Kumar Vs. Firm Prem Machinary and Co., is an authority for the proposition that the landlord is the best judge of his own requirement for residential or commercial purpose and has complete freedom in the matter. In this authority the Apex Court has relied upon its earlier judgment in Prativa Devi Vs. T.V. Krishnan,
In Joginder Pal Vs. Naval Kishore Behal, , the Apex Court with a reference to tag provisions of East Punjab Urban Rent Restriction Act, on the question of bona fide need, after surveying its earlier pronouncements for has held that the requirement of a major son and a coparcener in a joint Hindu family intending to start a business is the requirement of the landlord himself as was held in B. Balaiah Vs. Chandoor Lachaiah, . The words "for his own use" must receive a wide, liberal and useful meaning rather than a strict or narrow construction. It has been further held that while casting its judicial verdict, the Court shall adopt a practical and meaningful approach guided by the realities of life.
In view of the legal position, as has been delineated above, it is obvious that the appellate court has approached the issue pf bona fide need with a wrong Angle and has committed illegality in holding otherwise. The finding on the question of bonafide need, as recorded by the appellate court, therefore, cannot be sustained and the same is hereby set aside.
There is another important aspect of the matter. The release application was filed way back in the year 1989 with the allegation that the shop in dispute lying sealed by the Excise Department for the list three years which comes to the year 1986. During the course of hearing of the writ petition, it was admitted by the learned Counsel for the respondent that still the shop is lying sealed by the Excise Department. It follows that for the last two decades, the respondent No. 2 is not utilising the disputed shop. The explanation given by him is that he along with his wife has filed some suit, particulars of which are lacking for removing the seal in a civil court. Had the respondent No. 2 been suffering any irreparable loss, he would have certainly not allowed so much time to pass away. In this connection, the contention of the petitioner that the shop has been sealed by the Excise Department, as the tenant was dealing in contraband items, cannot be said to be without any substance. The appellate court took a curious view that if the shop is lying sealed by the Excise Department, it is the tenant-respondent No. 2 who is suffering loss. Had it been so, the tenant would have taken effective remedial measure and non-taking of effective measure; casual and callous approach for getting the seal removed further strengthens the case of the petitioner-landlord that the tenant-respondent does not require the shop in question. May be due to the fact that the tint is a nominal rent and as a matter of fact it is no rent (Rs. 34.64) specially for a godown in a city like Kanpur a metropolitan city. There appears to be no reason as to why the respondent-tenant has not placed on record to show the nature of the proceedings taken out by the Excise Department against him in connection with the sealing of the disputed shop, and the verdict that has taken place.
Coining to the question of comparative hardship, it is obvious that the landlord would suffer greater hardship if the release application filed by him is rejected. The tenant-respondent No. 2 is not using the disputed shop for the last about 20 years and there appears to be no positive fruitful and sincere action oft his part to get the seal of the disputed shop put by the Excise Department removed.
It is an acknowledged legal position that burden lay upon the tenant to establish that he would suffer greater hardship if the release application is allowed. No material has been placed before the Court to show that the tenant-respondent has made any attempt to obtain an alternative accommodation during the pendency of release proceedings. In this view of the matter, as held by Apex Court in Mst. Bega Begum and Others Vs. Abdul Ahad Khan (Dead) by Lrs. and Others, finding of comparative hardship has to be recorded against the tenant. More so, on the facts of the present case, no other conclusion, than the one, that the landlord would suffer greater hardship, can be drawn.
Viewed from any angle the finding of the appellate court is not legally sound and Prescribed Authority rightly found that the need of the petitioner, landlord is bonafide and genuine.
In view of the above discussion, there is sufficient force in the writ petition. The order passed by the appellate court, being contrary to the law, cannot be sustained and the same is hereby quashed and the order of release passed by the Prescribed Authority is restored back, with the result the release application filed by the petitioner in Rent case No. 57 of 1989 stands allowed.
A simplicitor of release of the disputed godown in the facts and circumstances of the will not be an effective and meaningful relief. By moulding the relief a further direction is necessary to direct the Excise Department to remove their seal and to hand over its vacant possession to the petitioner-landlord, within a period of the month, by removing the goods, if any lying in shop of the petitioner.
The writ petition is allowed with costs of Rs. 5,000/- (Rs. thousand only) to be paid by the respondent-tenant to the petitioner.