C.R. No. 5830 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No. 5830 of 2009 Date of Decision: 16.09.2010 M/s. Satpal Vijay Kumar .... Petitioner Versus Sushil Kumar ... Respondent CORAM: HON'BLE MR. JUSTICE ALOK SINGH Present : Mr. Harish Goyal, Advocate for the petitioner Mr. Vijay Sharma, Advocate for the respondent 1. Whether Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to the Reporters or not? Yes 3. Whether the judgment should be reported in the Digest? Yes ALOK SINGH, J. 1. Tenant has invoked revisional jurisdiction of this Court under Section 15(5) of East Punjab Urban Rent Restriction Act, 1949 assailing the order dated 8.9.2009 passed by Appellate Authority Patiala, thereby directing the eviction of the tenant on the ground of bonafide need of the landlord having observed that landlord requires the demised property for his personal use and occupation. 2. The brief facts of the present case are that respondent- landlord herein preferred an eviction petition under Section 13 of the Act for ejectment of the revisionist-tenant from the demised shop on the ground that tenant has neither paid nor tendered the rent of the demised shop since 1.4.2005 till the date of filing of eviction petition, despite repeated demands; landlord bonafidly requires the shop for C.R. No. 5830 of 2009 2 his personal use and occupation as he intends to run a business of Karyana Merchant in the same after vacating from the tenant. Revisionist had refuted the claim of the landlord-respondent by way of filing written statement. 3. Before the Rent Controller entire rent was tendered on the first date of hearing, hence, learned rent Controller has dismissed the eviction petitioner having observed that tenant is not in arrears of any rent. Learned Rent Controller in paragraph No. 20 of the judgment observed as under:- 20. The Learned counsel for the respondent further contended that keeping in view admission of AW-1 Sushil Kumar who is running huge business in the name of Sewa Gram Udyog Society, Shri Krishna Spintek Limited, Commission Agent Business and as such it is impossible to believe that petitioner requires demised shop to run business of Karyana Mercants in the same. But I am of the considered view even if a person is running a thousand business, but he has got the right to expand the same and to run any other business of his choice. However, pregnant silence of the part of the petitioner to explain his ownership of different properties situated within municipal limits, stated to be HUF property and non disclosing the income tax details leads to the conclusion that the petitioner has not approached this Court with clean hands by explaining the fact that he has no other shop except demised shop within the municipal limits of Samana. 4. Feeling aggrieved from the judgment passed by Rent Controller dated 19.11.2008, statutory appeal was filed by the landlord which was registered as RA. No. 34/13.1.2009. Learned C.R. No. 5830 of 2009 3 Appellate Authority allowed the appeal vide impugned order dated 8.9.2009 having observed that bonafide necessity is to be seen from the landlord to get the shop vacated for his personal use and occupation; it is not to be considered that why landlord has to start the business of Karyana Merchant. It is for the landlord to do so. 5. I have heard learned counsel for the parties and perused the record carefully. 6. Learned counsel for the tenant-revisionist vehemently argued that landlord is having so many businesses at different places, hence, he has absolutely no need to start Karyana business in the shop in dispute. Learned counsel for the revisionist-tenant further argued that landlord is having 14 other shops in the same city and all those shops are HUF properties and in some of the shops father and brothers of the landlord are doing business and landlord has not disclosed the details of all those shops, hence, Rent Controller has rightly dismissed the eviction petition having observed that landlord has not approached learned Rent Controller with clean hands and has concealed about the existence of other shops owned by HUF. Learned counsel for the revisionist further argued that Appellate Authority has not reversed the finding of the Rent Controller on the question that landlord has concealed the existence of other shops owned by HUF and has not given details thereof. 7. Learned counsel for the respondent-landlord has vehemently argued that Rent Controller as well as first Appellate Court have observed that every landlord has right to start or extend the business. Learned counsel for the landlord has argued that admittedly all other 14 shops as pointed out by the tenant are HUF C.R. No. 5830 of 2009 4 properties. He has further argued that even if landlord is having other joint properties, this is the choice of the landlord in which property he wants to start or extend his business. Tenant can not dictate the landlord that landlord should confine to his present business or not to start/extend business in the demised property. 8. This Court is of the opinion that even if landlord is found having other HUF properties in the same city it does not mean that landlord shall be prevented to start new business in the demised shop which is more suitable as per the landlord for his business. Merely because tenant is successful in proving that landlord is having HUF properties in the same city would not preclude the landlord in getting the demised shop vacated on the ground of personal use and occupation. This Court is of further view that when eviction is sought on the ground of bonafide need, the Rent Controller shall not proceed on the assumption that requirement is not bonafide. If landlord states that he needs the demised shop for establishment of new business or to extend the business, his need should always be presumed as correct and genuine. 9. In the matter of Balbir Kaur and others vs. Roop Lal and others, C.R. No. 3105 of 2010 decided on 23.8.2010, this Court while placing reliance on the judgment of the Apex Court in the matter of Sarla Ahuja vs. United India Insurance Co. Ltd., reported in 1998(8) SCC 119 and in the matter of Maganlal vs. Nanasaheb, 2009(1) Civil Court Cases 102 (SC) has observed that it is well established that it is the prerogative of the landlord to expand his business. If landlord asserts that he requires the tenanted premises to expand his business, his need must be presumed as C.R. No. 5830 of 2009 5 bonafide. Rent Controller shall not proceed to presume that alleged need is not bonafide. This is not open to the Rent Controller to say that landlords are already having business in different cities and are well settled in their lives, hence do not require demised premises for setting up new business. Landlord is the best judge of his need and requirement. Neither Court nor tenant can curtail legitimate right of the landlord to expand the business or to start the new business, since landlord is having other businesses in other properties. 10. In the matter of Balbir Kaur (supra) while interpreting Section 13(4) of the Act, it has been observed that :- “From the perusal of sub-section (4) of Section 13 of the Act, it is clear that safeguard is provided by the legislature, if landlord or his family for whose benefit eviction was obtained, fails to occupy the premises for a continuous period of 12 months from the date of obtaining possession or where he puts that building to any use or lets it out to any tenant other than the tenant evicted from it, the tenant who has been evicted may apply to the Controller for an order and direction that he shall be restored to possession of such building. In the opinion of this Court, tenant has legal remedy available with him under Section 13(4) of the Act, in case landlords do not occupy the building for the purpose for which it was got vacated or alienate it or lease it out as apprehended by Mr. Arun Jain, learned senior advocate. In view of Section 13(4) of the Act, need alleged by the landlords must be presumed to be correct and genuine, unless of course, proved otherwise. In the present case, tenant could not prove that the need of the landlords is not genuine. Rather, on the basis of the apprehension, tenant is denying need of the landlords and that apprehension is baseless as discussed C.R. No. 5830 of 2009 6 hereinabove.” 11. From the material available on the record, this Court finds that landlord has successfully proved that he requires the demised shop for his personal use and occupation to establish and do the Karyana Merchant business. There seems to be no ground to interfere with the judgment passed by Appellate Authority. 12. In view of the above, no interference is called for. 13. Dismissed. 14. However, two months time is granted to the tenant to vacate the disputed shop. (ALOK SINGH) 16.09.2010 JUDGE reena