Sushil Kumar vs Ashok Kumar Kansal and others

Rakesh Tiwari, J.—Heard Sri Rajiv Gutpa counsel for the petitioner and Sri P. K. Jain advocate assisted by Sri Sumit Daga counsel for the respondents.

Enquiry Officer.Where the 2. This writ petition has been State Government is of the opinion, on filed by Sushil Kumar son of Bihari Lal claiming himself to be the tenant of the shop Nos. 1100 and 1101.

The facts in narrow compass are that the father of the petitioner Sri Bihari Lal and his uncle Subhash Chandra had taken the aforesaid two shops on rent on 13.2.1975 and 12.10.1982 respectively. Both the shops were allotted to them by the Rent Control and Eviction Officer.

The shops aforesaid were purchased by one Ashok Kumar Kansal, advocate, respondent No. 1 on 16.10.1991. He preferred a release application under Section 21 (1) (a) of the U. P. Act No. 13 of 1972 stating that Sushil Kumar was the tenant in the two shops and he having purchased four small shops No. 1099, 1100, 1101 and 1102 having total area 24.5 sq. yards. Out of which two shop Nos. 1100 and 1101 are in dispute in the present writ petition. The petitioner contested the release application by filing written statements on 1.10.1993 inter alia stating that he is the tenant of the shop and has been paying the rent regularly. He also stated that the shops were being used for the small business of Masaley (of spices) and that release application was filed before the expiry of three years from the date of purchase of the shops. It was also stated that the first floor of the aforesaid shops was under the ownership of Sri B. S. Negi; that there was no space for establishing chamber by the landlord for his profession of advocacy and that his family is depended upon the small business carried out by him in that shop in question. It was lastly stated that the petitioner has goodwill in the area and that the landlord having no bona fide need of the shop as he has already purchased a big house No. 254/1 in Gall No. 1. Nehru Nagar Garh Road, Meerut. As regards comparative hardship was concerned, the petitioner took a stand that he was working for his old father and his infirm uncle and thus became tenant as heir of his father.

Release application was allowed by the trial court by judgment and order dated 31.7.1995 which was challenged by the petitioner by means of the Appeal No. 421 of 1995. The appeal was allowed by judgment and order dated 10.2.1999 remanding the matter to the trial court with a direction to implead Sri Bihari Lal,father of the petitioner and Sri Subhash Chandra, uncle of the petitioner who were the original allottees of the two shops respectively.

Pursuant to the remand order, father and uncle of the petitioner, the original allottees of the shops were impleaded as defendant Nos. 2 and 3. An amendment was also made by the landlord in the pleadings of release application to the effect that the father and uncle of the petitioners were original allottee of the shops and as Sushil Kumar son of Bihari lal was not having any independent right over the shops in question he was only helping them in the business. The release application was also contested on the ground that the adjoining shop No. 1102 was got released by the landlord from Raj Kumar Jain and he has not deliberately filed any release application against the tenant of shop No. 1099 Sri Shyam Lai. A replication was also filed by by the landlord on 4.2.2003 inter alia stating that the allotment order dated 13.2.1975 and 22.10.1982 in favour of Bihari lal and Subhash Chandra was illegal as orders were never given effect to by the allottees as they were not carrying any business thereon and infact Sushil Kumar is doing business in the name of ''Naveen Masale'' from the aforesaid shop in question which did not have any goodwill.

After death of Bihari Lal, father of the petitioner, on 20.6.2000 his legal heirs were substituted, who filed their reply on 25.1.2010 reiterating the averment made by Late Bihari lal and Subhash Chandra in their respective statements. On addition it was also stated that Subhash Chandra was mentally retarded and as such the business in both the shops were being carried out by the petitioner, Sushil Kumar. The landlord filed his reply on 9.2.2001 by reiterating his need for establishing of his chamber In the shops in question. Apart from said reply, affidavits and other documents were filed by the parties in support of their case that all the three defendants were living together and the business in question is duly registered in the name of Bihari lal before the Trade Tax department. Electricity is also in the name of the petitioner and that the shops were on monthly rent of Rs. 125.

The contention of the counsel for the petitioner is that the orders impugned are illegal as the courts below have illegally held that though three years period had not expended prior to giving notice by the landlord qua does not make any difference as the statutory period of three years expired from the date of purchase and six months notice was given to the petitioner/tenant for vacating the shops in dispute at the time of delivery of judgment. While considering the bona fide need the courts found that the landlord had purchased only the ground floor without having a right over the roof and no single shop alone, was sufficient to serve the purpose of his need as no material alteration and modification were made in the shop in question. Hence the need set up by the landlord was not bona fide.

The landlord filed appeal against the orders dated 6.11.2004 on 23.12.2004 on the grounds inter alia that he took four shops in question and utilizing the same after slight alteration and modification in the existing construction.

The District Judge allowed the appeal holding that no alteration and modification could be made in the shop in question ; that the tenant had a goodwill in the area by doing his business of ''masale'' since 1975 ; that the comparative hardship was bound to be considered in the release application on the ground of bona fide need. The appellate court also held that landlord had admittedly purchased shops for establishing his chamber in a commercial place, where it is hardly established by a lawyer. The judgment of the appellate court are also challenged on the ground that the mandatory provision of Rule 17 of the Rent Rules was ignored by the lower appellate court while allowing the appeal ; that the comparative hardship of the petitioner was not considered at all even after holding the need of the landlord to be bona fide hence the judgment impugned was not legally found. It is vehemently argued that even if the landlord is not owner of the roof and hence he cannot make any alteration or modification in the standing stricture of the shops in question which is needed for advocate chamber.

Per contra counsel for the respondent has submitted that at the time of purchase, shop No. 1102 was under the tenancy of Raj Kumar Jain ; First release application was filed for release of the shop Nos. 1100 and 1101 whereas second release application was filed against Raj Kumar Jain in respect of shop No. 1102. Release application filed by the landlord against Raj Kumar Jain was allowed by the Prescribed Authority, Meerut. The order of the Prescribed Authority was challenged in appeal which was also dismissed vide order dated 29.10.1996. Aggrieved by the aforesaid judgment and order of the courts below, the petitioner moved Civil Misc. Writ Petition No. 35390 of 1996 which was dismissed by the High Court by judgment and order dated 30.4.2007 which is reported in 2007 (2) ARC 360 holding that the bona fide need of the landlord was genuine and comparative hardship was also in his favour as he is a practising lawyer and purchased the shop in question for the purpose of establishing chamber. S.L.P. (Civil) was preferred by Raj Kumar Jain before the Apex Court challenging the validity and correctness of the order dated 30.4.2007 passed by the High Court in Civil Misc. Writ Petition No. 35390 of 1996 which was also dismissed by the Apex Court by judgment and order dated 12.10.2007. Subsequently shop No. 1102 under the tenancy of Raj Kumar Jain was vacated by him and the petitioner came into possession thereof.

According to the contention of the counsel for the respondent, the dimension of the shop of Raj Kumar Jain was 8'' x 8''. It was too small an area for establishing chamber of an advocate and he is therefore in the need of the shops of the petitioner also, i.e., the entire area approximately 24.5 sq. yards of which the Court is situated either for the purpose of purchase of the shop for establishing chamber would be frustrated. It is stated that the petitioner had filed an affidavit before the Prescribed Authority stating therein that he is the tenant in the shops in question. In paragraph 25 of his affidavit, the petitioner averred that his father is an old man and residing with him while the elder brother Subhash Chandra is mentally retarded and is also dependent upon the petitioner. He also averred that the written statement dated 20.2.1998 filed by the father and uncle of the petitioner is contrary to the written statement filed by the petitioner himself on 1.10.1993 which is appended as Annexure C.A.2 to the counteraffidavit.

It is submitted that in the release application filed against the petitioner he had stated that his father and uncle had taken a specific plea that the petitioner Sushil Kumar is not the tenant as shops were allotted to them whereas in his written statement, petitioner claimed himself to be the tenant in his own independent rights. He has pointed out that except the petitioner, no other persons have contested the appeal before the court below and as writ petition has been filed by the petitioner and not by Subhash Chandra who claims himself to be the tenant of one of the shops on the basis of allotment. He lastly submitted that it was not open for the tenant to make suggestion to the landlord how to utilise his property or accommodation and that since the writ petition is based on vexatious and baseless grounds it is liable to be dismissed.

In rebuttal, counsel for the petitioner has stated that the need of the landlord is not bona fide as he wants to sell the shops in question.

A supplementaryaffidavit was filed by the counsel for the petitioner bringing on record the commissioner report dated 6.6.1993 alongwith the map filed in the court below, showing the boundaries of the property in dispute.

No other point shown has been argued by the parties.

After hearing the counsel for the parties it is apparent from para 2 of the written statement, filed by the respondent, that the tenancy of the petitioner who claimed to be tenant in two adjoining shop Nos. 1100 and 1101. Infact he stated that the shop No. 1100 was allotted to Bihari Lal,father of the petitioner and shop No. 1101 was allotted by Rent Control and Eviction Officer to Subhash Chandra and that petitioner was not the tenant and was only helping Subhash Chandra. The relevant paragraph No. 2 of the written statement filed by the father of the petitioner is quoted below :

The father and uncle who were the original allottees of the shop in dispute also denied in their written statement that Sushil Kumar was tenant to these shops.

It is thus apparent that the petitioner was not tenant of the shop allotted by the Rent Control and Eviction Officer, and was only helper in the shop. After death of his father, he might have become joint tenant being legal heir of his father but so far as Subhash Chandra is concerned, he has not come up in the writ petition.

Therefore, the case of the petitioner only is to be considered in respect of shop of his father. Admittedly the area of four shops together is 24.5 sq. yards. They are not big shops. There is no bar upon the landlord under Act No. 13 of 1972 to make alteration in his own building for making it useful for his purpose after he purchased the accommodation. He can open small connecting door in between the shop Nos. 1101 and 1102 to enhance their utility for establishing chamber by the landlord.

The first floor of the aforesaid shops was under the ownership of Sri B.S. Negi and petitioner is not pressing any material alteration in the shop. In any case if the respondent makes any material alteration in his accommodation on the ground floor, he may take services of a Construction Engineer. Shop No. 1102 which is between shop No. 1101 it could be interconnected by opening a door. It is not open at all for the tenant to say that the landlord cannot make any change in his house and whether it is feasible or not. The area of four shops is not so and the construction are not as such that no opening for door can be made.

One of the shop has already been got vacated by Raj Kumar Jain and the judgment in the writ petition has already been upheld by the Apex Court. The judgment in the case of Raj Kumar Jain shows that even release of his shop was not sufficient for construction of chamber of respondent. Therefore the bona fide need of the respondent is established. As regards the finding of the trial court that it is not feasible for an advocate to establish his chamber in a commercial place is concerned suffice it to say that another advocate has established his chamber in the shop adjacent to the petitioner''s shop. There is no law which permits a landlord to use his building in any manner except for unlawful purpose. Establishing a chamber by an advocate to augment his profession is a lawful profession and not an unlawful one. It is settled law that notice can be given within 3 years of purchase of the property by the landlord but the tenant cannot be evicted before the aforesaid statutory period of three years. The contention of the counsel for the petitioner that this has been violation of Rule 17 of the U. P. Urban Building (Regulation of Letting, Rent and Eviction) Act, is misconceived. As it applies to an application for release on ground of demolition and new construction. In the instant case there is no question of complete demolition of the building but some minor structural changes before putting of interconnecting doors between two or more shops for using the accommodation as chamber by the respondent. The roof of this land is the floor of person on the first floor. The landlord has every right under the roof to use his accommodation as the release provided in making alteration on his ground floor accommodation he does no damage to the floor of the tenant above. His comparative hardship is greater than the petitioner. Shri Subhash Chandra the allottee of the other shop has not challenged the order in this petition.

For all the reasons stated above, the writ petition is dismissed. The court below have rightly held that the requirement of the appellant/respondent for establishing of chamber is bonafide.

The petitioner shall handover vacant possession of the shops in dispute within a period of three months.