Vinod Kumar Jain vs Jagdish Sahu

Rakesh Tiwari, J.—Heard counsel for Petitioner and Sri M. K. Gupta for the Respondents who has filed vakalatnama today.

The facts giving rise to this, in brief, are that the landlord-Respondent filed an application u/s 21(1)(a) of U.P. Act No. XIII of 1972 seeking release of the premises in dispute asserting that he has retired from service on 31.8.2002 and he required the premises in dispute of the purpose of starting his own business of a provision Store/ Restaurant. The aforesaid application was contested by the Petitioner-tenant by filing a written statement and it was asserted therein that the landlord was receiving a sufficient amount towards pension and as such he was not in need of the premises in dispute for starting any business. It was also asserted that the landlord was owner of house No. 83, Sarafa Bazar which was in his possession and the said building is situated in a prime location in the market area where he can easily start his business and further that he was already carrying on a Sarafa business in the said building.

An application paper No. 65/C1 was filed by the tenant for spot inspection of premises No. 83, Sarafa Bazar in order to prove that the landlord had already been carrying on a Sarafa business in the aforesaid premises and that he has sufficient accommodation to establish a provision store.

Prescribed authority allowed the release application filed by the landlord vide order dated 13.10.2006 and the appeal preferred against the same by the tenant has been dismissed by the District Judge, Jhansi on 21.4.2007.

The only contention of the counsel for the Petitioner is that the landlord has been running his business from his residential house and, therefore, does not require the shop of the Petitioner.

The courts below have given a concurrent finding of fact against the Petitioner-tenant in this regard, even though the landlord might have running some business from his residential house, it cannot be said that his need for a shop to run the business is not genuine and bona fide and particularly in view that courts below have given the finding that there are many vacant shops available in the same market and that the Petitioner has his own 49 shops. The finding of the courts below is as under:

The applicant in his affidavit has further stated that the disputed shop No. 24 is situated in Subhash Ganj, Jhansi which is a big market. Shop/house No. 29 is also situated in the same market near the disputed shop No. 24. Shop No. 29 was under the tenancy of Smt. Moola and his son. This shop has been vacated (Annexure 22-C2 to 22C/9, certified copy of the judgment in S.C.C. case No. 80 of 1997 Vinod Kumar Jain v. Uttam Chand and Smt. Moola, and it is now in possession of Vinod Kumar Jain who has started his own business after suitable repairs. Besides, the Appellant has purchased land/ accommodation in Subhash Ganj, Jhansi in the name of his wife Smt. Savitri. He, therefore, does not need the disputed shop any more. The possession in the shop in question is only symbolic so that he can extract handsome amount in Pagdi. The Appellant has also purchased the big building bearing No. 29 in Subhash Ganj, Jhansi through sale-deed dated 23.2.1987 from one Kushal Rai. Certified copy of the sale deed has been filed. He is using upper portion of this building as godown, whereas two shops are being used by the Appellant at the ground floor. He is doing business from both the shops. The applicant has filed photos Annexures 4 and 5 and copy of the assessment of the building. Not only this, the Appellant has also purchased one plot near Elite Chauraha, Jhansi through registered sale-deed dated 16.1.1999 from Shanker Lal Mehrotra. Another continuous plot was also purchased on 5.2.1999 again from Shanker Lal Mehrotra and using both the plots the Appellant has constructed grand building named as Mount Plaza Complex. It consists of about 49 shops and is three storeyed building. Photo of Mount Plaza Complex Annexures 6 and 7 have been filed. Shop No. 12 has also been purchased by the Appellant in the name of his wife and obtained vacant possession. Besides, Shop Nos. 10 and 11 are in occupation of the Appellant. Photo Annexure 8 has been filed. Thus, on the basis, strength and preponderance of documentary evidence the applicant/landlord has been able to prove his case, as set up in the release application.

Landlord is a retired employee of Railway and the suit was contested by the tenant on the ground that he is getting a handsome pension of Rs. 2,400 from which he can live in luxury.

Even a retired person has right to live with dignity and his right to live with dignity is enshrined in Article 21 of the Constitution. I am supported in my view by a judgment of this Court in Jai Raj Agarwal v. Bhola Nath Kapoor and Ors. 2005 (3) ARC 417, wherein in para 12 of the judgment, it was held as under:

The second aspect to be considered is about the age of the landlord and his capacity to carry on the business. In the year 1989, when release application was filed, landlord was 60 years of age. Today he must be of 76 years of age. The Supreme Court in Ansuyaben Kantilal Bhatt Vs. Rashiklal Manilal Shah and Another, held that it was not proper to allow the release application who was filed for commercial need 31 years before as by the time when the matter came up for consideration before the Supreme Court 31 years after filing of the release application, landlord was of 85/87 years of age. However, in between 76 years and 85/87 years there is a difference of about 10 years. Even at the age of 76 years one can supervise the business unless he has become disable. Disability to carry on or supervise the business in the absence of any evidence can be presumed at the age of 85/87 years but not at the age of 76 years. In my opinion, therefore, the need for starting business for the landlord as well as for his nephew Deepak Kapoor is, therefore, bona fide need and has to be considered.

In my opinion, therefore, the prescribed authority has not committed any illegality in coming to the conclusion that the need of the landlord was genuine and bona fide for the shop in dispute. The finding of the prescribed authority has been upheld by the revisional court holding that it does not suffer from any illegality or irregularity and there is no need of interference by the revisional court. I am also in full agreement with the opinion expressed by the courts below.

Petition is dismissed.