Kumar Joshi Vs. Narendra Kumar & Ors.  Insc 74 (22 January 2008)
Sinha & Harjit Singh Bedi
out of SLP(C) No. 2179 of 2007] S.B. SINHA, J:
appeal is directed against a judgment and order dated 30.11.2006 passed by a
learned Single Judge of the High Court of Judicature at Allahabad in Civil
Miscellaneous Writ Petition No. 27141 of 2003 whereby and whereunder the writ
petition filed by the appellant herein challenging the correctness of the
judgment dated 8.5.2003 passed by the Additional District and Sessions
Judge/Special Judge, Rent Control Appellate Authority, Ghaziabad in R.C.A. No.
90 of 2000, was dismissed. The Appellate Authority on 8.5.2003 by reason of its
aforementioned judgment had set aside an order dated 24.7.2000 passed by the
2nd Additional Civil Judge (Senior Division), Ghaziabad.
between the parties, admittedly, is that of a landlord and tenant. Mother of
the respondents herein filed an application for eviction of the suit premises
which is a shop in terms of Section 21(1)(a) of the U.P. Urban
Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. The release
application was filed on the ground of bona fide requirement for establishing a
business for her grand son, Shri Sheel Kumar. An application for amendment was
filed at a later stage of the said proceeding in terms whereof, the requirement
of the suit premises even for Sewak Ram was pleaded.
said release application was dismissed by the learned Trial Court, inter alia, opining
Kumar has been carrying on his business under the name and style Balaji
Welding Store at Ghantaghar, in front of Punjab National Bank, G.T. Road, Ghaziabad and Sewak Ram is carrying on a business at Gandhi Market, Modi
Nagar, taken by him from Nagar Palika in the name of his his wife Smt. Anita Garg.
In regard to the contention raised by the respondent herein that the appellant
had been carrying on three flourishing businesses, it was opined;
is correct that opposite party is having a shop near Joshi Motors and Niti Niketan,
however, in the shop in dispute applicant is carrying business of electronic
items and is also used as a store. Pertaining to property of Joshi Palace affidavits have been filed that the property belongs to his
brother Dinesh Joshi. It was held :
the aforesaid analysis it is proved beyond doubt that daughters of late Smt.
Krishna Devi are also co-owner of property in dispute. Besides this, Chetan Lal
Garg and Bhagwat Prasad Garg have never given their consent for the release of
shop in favour of Sheel Kumar and Sewak Ram Garg. From the facts it is also
proved that Sheel Kumar Garg is carrying on the business in Ghazabad under the
name of Balaji Welding Store, Ghaziabad and Sewak
Ram Garg is also having a shop in the name of his wife Smt. Anita Garg in
Gandhi Market Nagar Palika Ghaziabad.
appeal was preferred thereagainst by the respondents. The Appellate Authority,
however, reversed the said findings of the Rent Controller, inter alia, holding
said rulings are not applicable as the opposite party is having several
commercial premises in his possession which have been admitted by him. It has
also been admitted that in the shop in dispute he is using the same as a store
also. The appellant has established that Narendra Kumar is out of employment
and he is not doing any service. The averments made by opposite party that Narendra
Kumar is carrying on business alongwith his son at Ghaziabad in the name and style of Balaji
Welding Store, has not been proved. The opposite party could have summon the
record of sales tax and income tax department to prove that Narendra Kumar is a
partner in the said business. However, opposite party has failed to do so. In
these circumstances, it cannot be held that Narendra Kumar is also doing the
business alongwith his son Sheel Kumar at Ghaziabad.
to Honble Supreme Court the landlord can carry the additional business
also and for that purpose he may require shop in dispute.
furthermore relied upon Rule 16(3) of the U.P. Urban Buildings (Regulation of
Letting, Rent and Eviction) Rules, 1972 to hold :
the present case it has been admitted that Rakesh Kumar Joshi-tenant is having
2 other shops and he has also not refuted two-storied building which was
brought on record by way of amendment made in the appeal. In these
circumstances, the tenant is having sufficient commercial accommodation to run
his business. In para 7 of written statement opposite party has himself
admitted that he is also using the shop as store.
these circumstances, the tenant does not require the shop in dispute, while
applicants in their family are having 4 brothers and their children. Though, it
is admitted that there is one more shop in their possession in which applicant
No. 4 is carrying on his business, there is one more shop in the name of Sewak
Rams wife where the business is being carried.
the same is not sufficient for 4 brothers.
High Court, however, by reason of the impugned judgment relying upon the
provisions of Section 12(3), Section 16, proviso 1 to 4 and explanation (i) of
Section 21 of the held hold that the petitioner/tenant having acquired
alternative accommodations had no legal right to continue in the disputed
Dinesh Kumar Garg, the learned counsel appearing on behalf of the appellant
submitted that the High Court committed a serious error in passing the impugned
judgment insofar as it failed to take into consideration that the provisions of
the Act, upon which reliance has been placed, relate to residential premises
and not shop premises. In any event, having regard to the fact that the
appellate court did not meet the reasonings of the Rent Control Authority, the
High Court should have interfered in the matter.
J.C. Gupta, the learned senior counsel appearing on behalf of the respondent,
on the other hand, urged that although Section 12(3) and Section 16 of the Act
are not applicable in the instant case but in view of Rule 16(2) of the Rules,
the decision of the appellate court must be held to have been rendered on
may, at the outset, notice the relevant statutory provisions :
12. Deemed vacancy of building in certain cases.
landlord or tenant of a building shall be deemed to have ceased to occupy the
building or a part thereof if (a) xxxxxxxxxxxxxxxxxx (b) xxxxxxxxxxxxxxxxxx
the case of a residential building, if the tenant or any member of his family
builds or otherwise acquires in a vacant state or gets vacated a residential
building in the same city, municipality, notified area or town area in which
the building under tenancy is situate, he shall be deemed to have ceased to
occupy the building under his tenancy :
that if the tenant or any member of his family had built any such residential
building before the date of commencement of this Act, then such tenant shall be
deemed to have ceased to occupy the building under his tenancy upon the
expiration of a period of one year from the said date.
Explanation. For the purposes of this
person shall be deemed to have otherwise acquired a building, if he is
occupying a public building for residential purposes as a tenant, allottee or
expression any member of family, in relation to a tenant, shall not
include a person who has neither been normally residing with nor is wholly
dependent on such tenant. Section 16 of the Act provides for the powers of
the District Magistrate to pass order in regard to allotment and release a of
16 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction)
Rules, 1972 reads, thus :
Application for release on the ground of personal requirement. (1)xxxxxxxx ..xx
(2) While considering an application for release under clause (a) of
sub-section (1) of Section 21 in respect of a building let out for purposes of
any business, the prescribed authority shall also have regard to such facts as
the greater the period since when the tenant opposite party, or the original
tenant whose heir the opposite party is, has been carrying on his business in
that building, the less the justification for allowing the application;
the tenant has available with him suitable accommodation to which he can shift
his business without substantial loss there shall be greater justification for
allowing the application;
the greater the existing business of the landlords own, apart from the business
proposed to be set up in the leased premises, the less the justification for
allowing the application, and even if an application is allowed in such a case,
the prescribed authority may on the application of the tenant impose the
condition where the landlord has available with him other accommodation
(whether subject to the Act or not) which is not suitable for his own proposed
business but may serve the purpose of the tenant, that the landlord shall let
out that accommodation to the tenant on a fair rent to be fixed by the
prescribed authority ;
where a son or unmarried or widowed or divorced or judicially separated
daughter or daughter of a male lineal descendant of the landlord has, after the
building was originally let out, completed his or her technical education and
is not employed in Government service, and wants to engage in self-employment,
his or her need shall be given due consideration.
reason of sub-Section (3) of Section 12 of the Act, a legal fiction has been
created. Such a legal fiction in regard to the vacancy is to be applied in
relation to residential accommodation only and not in relation to shop
premises. Rule 16(2) although refers to the shop premises, by reason thereof no
legal fiction has been created. The said Rule merely provides for certain
factors which are required to be taken into consideration while considering an
application for release under Clause a of sub-Section (1) of Section
21 of the Act.
The High Court, therefore, clearly erred in invoking the provisions of Section
12(3) and 16 of the Act.
High Court referred to Rule 16(2) of the Rules but the effect and purport
thereof had not been taken into consideration. The Rules have a limited
application. Applicability of the Rules would undoubtedly depend upon the fact
situation obtaining in each case. The court is required to apply its mind upon
the materials brought on record in determining the issues.
Writ Petition, therefore, in our opinion could not have been dismissed on the
premise that Section 12(3), Section 16 and Rule 16 of the Act would be
applicable. The High Court should have taken into consideration the factual
aspect of the matter also, particularly having regard to the findings of fact
arrived at by the learned appellate authority. It would bear repetition to
state that the High Court could not have dismissed the writ petition by
referring to certain provisions of law particularly when the findings of the
appellate authority required a closer scrutiny.
For the reasons aforementioned, the impugned judgment cannot be sustained. It
is set aside accordingly. This appeal is allowed and the matter is directed to
be considered afresh. We would, however, request the High Court to consider the
desirability of disposing the appeal as expeditiously as possible and
preferably within a period of three months from the date of receipt of the copy
of this Order. In the facts and circumstances of the case, there shall be no
order as to costs.
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