HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 1973 of 2009 (M/S) Manoj Kumar and others. ………..Petitioners Versus Smt. Usha Sharma. …….Respondent. Shri Arvind Vashishtha & Mrs. Monika Pant, Advocates for the petitioners, Shri V.K. Kohli, Senior Advocate assisted by Shri T.C. Pandey, Advocate for respondent. Dated: May 31, 2010 Hon’ble V.K. Bist, J. By means of this writ petition, moved under Article 226/227 of the Constitution of India, the petitioners have sought writ in the nature of certiorari quashing the judgment and order dated 17.11.2009 passed by the learned District Judge, Nainital in Rent Control Appeal No. 5 of 2006 ‘Pawan Kumar and others vs. Smt. Usha Sharma’ and also judgment and order dated 06.03.2006 passed by the Prescribed Authority/Civil Judge (Jr. Div.), Ram Nagar in Rent Control Case No. 3 of 2004 ‘Smt. Usha Sharma vs. Pawan Kumar and others’. 2. Brief facts, as alleged in the petition, are that there is a commercial building in the ground floor situated at Mohalla Jwala Line, Ram Nagar, Nainital. The said building was initially owned by Lala Bihari Lal. From time to time same was purchased by several persons and lastly in the year 1995, the property was purchased by respondents. The property was purchased by Jaswant Singh, Laxman Singh sons of Mangal Singh and they became the owner of the same in the year 1995. Thereafter, the said property was purchased by respondent Smt. Usha Sharma. The petitioner’s grandfather Lala Loti Ram was the tenant of the premises 2 in dispute since the year 1946 and after his death his heirs Ram Bharose Lal (father of petitioner nos. 3 & 4), Krishna Kumar (father of petitioner nos. 5 & 6), late Shyam Lal (father of petitioner nos. 1 & 2) and the petitioner no.7 Kailash Kumar became the joint tenants of said premises. After the death of Ram Bharose Lal in the year 1991, the petitioner nos. 3 & 4 and their mother Smt. Sharda Devi became joint tenant of the property in dispute. Similarly, after the death of Krishna Kumar in the year 1975, the petitioner nos. 5 & 6 and after the death of Shyam Lal in the year 1977, the petitioner nos. 1 & 2, being the members of joint Hindu family, also became the joint tenants of the premises in dispute. The rent of the premises in dispute is being paid by the petitioners as and when the same falls due. It is alleged that the respondent’s husband is running a big business having annual turnover in crores. The elder son of respondent, namely, Anupam Sharma has a hotel resort in Dhikuli and youngest son, namely, Alok Sharma is Chartered Accountant in Delhi. The second son of respondent, namely, Anurag, after completing his education in the year 1991, is looking after the business of his father as well as having independent business of printing in the name and style ‘Aryavrat Printing Industry’ situated in first floor of the premises in dispute. The respondent filed an application under Section 21 (1) (a) of U.P. Urban Buildings (Regulations of Letting Rent and Eviction) (U.P. Act No. XIII of 1972) (hereinafter referred to as the Act), in the Court of Prescribed Authority, Ram Nagar. The said application was registered as P.A. Case No. 3 of 2004 ‘Smt. Usha Sharma vs. Pawan Kumar and others’. In the said application, the respondent/landlady came up with the case that her husband Shri Hari Om Sharma is a tenant in 3 a small shop at Mohalla Jwala Line, Ram Nagar measuring 8’X16’ where he is running the business of Bidi, Cigarettes and Parchune items. She stated in the application that she has three sons, namely Anupam Sharma who is engaged in hotel business, Shri Alok Sharma who is a Chartered Accountant and Shri Anurag Sharma who is a graduate. Anurag Sharma tried for service, but could not succeed, therefore he started an Offset Printing Press in the residential accommodation at first floor of the said property. The ground floor is in the possession of petitioner nos. 1, 2 and 5 to 7. The first floor has 23 stairs measuring 2’4” in width. Since the building was too old and due to vibration and load of machine, there was always a danger to the building, Shri Anurag Sharma had to close down the said Offset Printing Press on 26th March, 2004 and eversince then he is unemployed. It is stated in the application that the original tenant of the said shop in question was Shri Ram Bharose Lal and after his death his son Shri Pawan Kumar and Shri Akhilesh Kumar (petitioner nos. 3 & 4) became the tenants and they handed over the said shop to their cousin brothers (petitioner nos. 1, 2 & 5 to 7) and the petitioner nos. 3 & 4 started their business under the name and style of A.K. Traders, Lohara Lines, Ram Nagar. It has been further stated in the application that the petitioners had claimed that they all are joint tenants in the shop in question. It is alleged that the petitioners have a Brass Factory at Mohalla Bombay Gher, Ramnagar, Nainital, besides it, they have one shop in the Ahata of Krishi Utpadan Mandi, Ram Nagar, Nainital where they are carrying the business of fruits, another shop at Krishi Utpadan Mandi, Ram Nagar, Nainital where they are carrying on commission agent business of vegetables and 4 they have the business in the name of A.K. Traders at Lohara Lines, Ram Nagar, Nainital which deals in plastic goods and have their supplies in whole of the hill area. It is also alleged that the petitioners belong to a rich family. They have their own houses, shops, godown at Ramnagar. The business of general merchant/ parchune can be shifted in the vacant shop situated in the same line and is in possession of the petitioners. The same is situated at the centre place and for conducting business from the same, the petitioners shall not face any loss or inconvenience, rather they will be profited. In comparison to the business of the petitioners, son of the respondent is facing mental and financial problems. It was further stated that son of the respondent is ready to commence the work of Printing Press in the shop of the petitioners, which is lying vacant. In para-16 of the plaint, the landlady came up with the case that the petitioners have one shop at Jwala Line, Ram Nagar, Nainital after leaving 13 shops from the shop in dispute having frontage of about 9’ and width of 51’-52’, which is lying vacant, but the petitioners are occupying the shop in question. Further in para- 17 of the plaint, the respondent landlady also submitted that she is ready to settle Printing Press of his son in the said shop. These paras are quoted below. “16- ;g fd vR;Ur egRoiw.kZ rF; gS fd foi{khx.k ds rFkkdfFkr la;qDr fgUnw ifjokj dh futh feyfd;r ,d nqdku Hkh blh cktkj Tokyk ykbu esa fookfnr nqdku ls djhc 13 nqdkuksa dh nwjh ij ekStwn gSA ;g nqdku fookfnr nqdku ls Hkh dkQh cM+h djhc 51&52 QqV xgjh gS vkSj nks eaftyh gS] rFkk fookfnr nqdku ls Hkh csgrj fctfu’k LikWV ij dsfUnzr gS vkSj djhc nks o"kZ ls [kkyh iM+h gq;h gSA ;g fcMEcuk gh gS fd foi{khx.k okfnuh dh nqdku rks ?ksjs gq, gSa vkSj djhc esa gh viuh nqdku [kkyh NksM+ j[kh gS] ckotwn blds okfnuh dks ukgd dkuwuh yM+kbZ esa djhc 9 lky ls my>k j[kk gSA foi{khx.k ds rFkkdfFkr la;qDr fgUnw ifjokj dk mijksDr fyf[kr cgqr cM+k O;kikfjd leqnk; gS] 3 yxk;r 6 viuh la;qDr ikfjokfjd lqfo/kkuqlkj dgha Hkh lek;ksftr gks ldrs gSa vFkok vius vkVk] nky] pkoy ds dkjksckj dks viuh [kkyh iM+h nqdku esa LFkkukarfjr dj ldrs gSa] tks xYyk O;kikj dk gh izeq[k O;kikfjd dsUnz LFkku gS] mUgSa fdlh izdkj dh ijs’kkuh 5 vlqfo/kk ;k gkfu ugha gS cfYd gj izdkj ls [kq’kgkyh lqfo/kk vkSj ykHk gS] rqyukRed mijksDr foi{khx.k 3 yxk;r 6 ds] izkfFkZuh dk iq= dkjksckj cUn gks tkus dh otg ls csjkstxkj gS rFkk ekufld vkSj vkfFkZd :i ls ijs’kku gky gSA 17- ;g fd foi{khx.k dh mijksDr dfFkr futh nqdku] tks [kkyh iM+h gS] vkSj fookfnr nqdku ds fcydqy djhc esa gS] dks ;fn foi{khx.k 3 yxk;r 6 eqdnes dks fookfnr djus dh xjt ls vius ijpwuh ds O;kikj ds fy, vumi;qDr crkrs gSa] rks izkfFkZuh dfFkr nqdku esa vius csjkstxkj gks pqds iq= dh izSl Lfkkfir djus ds fy, Hkh rS;kj gS rkfd esjk iq= cjckn gksus ls cp lds vkSj viuh jksth&jksVh dek dj liRuh ds xqtj clj dj ldsA blds fy, izkfFkZuh dfFkr nqdku dks viuh fookfnr nqdku ls 10 izfr’kr vf/kd fdjk;k nsdj fdjk;s ij ysus dks Hkh rS;kj gS ” 3. After the service of notices, the petitioners turned up but denying the assertions made by the respondent the petitioners filed written statement in four sets (one set filed by petition no.7, second set filed by petitioner nos. 6 & 2, third set filed by petitioner nos. 5 & 1 and fourth set filed by petitioner nos. 3 & 4. In their written statement they denied the need of landlady. They submitted that Anurag Sharma is engaged with his family business. They further submitted in the written statement that applicant-landlady has deliberately concealed the properties belonging to her family. She and her family have a big house in Bhawaniganj, Ram Nagar, which is vacant. The offer made by the respondent in paragraph-17 of the plaint was denied by the petitioners. Thereafter, the parties led their evidence before the Prescribed Authority. The learned Prescribed Authority vide order dated 06.03.2006 allowed the release application of the respondent. Aggrieved with the order dated 06.03.2006, the petitioners preferred the Rent Control Appeal no. 5 of 2006 before the District Judge, Nainital and the learned District Judge vide order dated 17.11.2009 dismissed the appeal. Being aggrieved with the order dated 17.11.2009, the petitioner have filed the instant petition. 6 4. The petitioners came up with the case that respondent’s husband is running a big business of agencies having annual turnover in crores. The elder son of respondent, namely, Anupam Sharma had a hotel resort in Dhikuli and youngest son, namely, Alok Sharma is a Chartered Accountant in Delhi. The second son of respondent, namely, Anurag, after completing his education in 1991, is looking after the business of his father as well as having independent business of printing in the name and style ‘Aryavrat Printing Press. The alleged closure of ‘Aryavrat Printing Press’ is without any rhyme and reason after consuming the amount of subsidy and repaying the term loan and in case he had a need of business then the Press ought to have not been closed by him. The Printing Press has been closed by respondent purposely for creating fake need. The petitioners have further mentioned in the writ petition that during the pendency of appeal before the learned District Judge, Nainital, the husband of respondent also established a new business in the name of M/s Aditya Enterprises, Ram Nagar, District Nainital having a distributorship and dealership which is being run and looked after by Anurag Sharma but purposely shown the said business in the name of Hari Om Sharma, husband of respondent. The landlady has no bonafide and genuine need of the shop in dispute. 5. The respondent filed her counter affidavit, in which the averments made in the release application have been reiterated and it was further stated that the petitioners have the following business accommodations:- i. A Brass Factory at Mohalla Bombay Gher, Ramnagar, Nainital, 7 ii. One shop in the Ahata of Krishi Utpadan Mandi, Ram Nagar, Nainital where they are carrying the business of fruits, iii. Another shop at Krishi Utpadan Mandi, Ram Nagar, Nainital where they are carrying on commission agent business of vegetables, iv. One more ship at Krishi Utpadan Mandi, Ram Nagar, Nainital, v. Business in the name of A.K. Traders at Lohara Lines, Ram Nagar, Nainital which deals in plastic goods and have their supplies in the whole of the hill area, which is claimed as successful business by the petitioner nos. 1 & 2, vi. One shop at Jwala Line, Ram Nagar, Nainital after leaving 13 shops from the shop in dispute having frontage of about 9’ and width of 51-52’, which is lying vacant. 6. It has been further stated in the counter affidavit that one portion adjoining to the road where the Brass Factory is situated at Bambagher, was under the tenancy of one Shri Azizuddin, which was got vacated by the petitioners from the said tenant. Further, in the shop in dispute, the business which is being run pertains to Flour, Rice and Pulses, can easily be run by the petitioners in the vacant shop at Jwala Lines, Ramnagar. It is further stated in the counter affidavit that the petitioners have no need of the shop in question, but they are keeping the possession of the said shop only because the rent is merely Rs. 183.33 per month. It has been also stated that the learned Prescribed Authority had found the need of the respondent for the use of said shop for her son, as bonafide and comparative hardship was also found in 8 favour of the respondent and the learned Prescribed Authority had released the said shop in favour of the respondent vide order dated 6th March, 2006. It has also been submitted that the learned Appellate Court also held the need of the respondent of the shop in question for her son, most bonafide and has also held that the comparative hardship to the respondent would be greater than the petitioners, in case, the shop is not released. 7. I have heard Shri Arvind Vashishtha, Advocate for the petitioners, Shri V.K. Kohli, Senior Advocate for the respondent and perused the material available on record. 8. Shri Arvind Vashishtha, the learned counsel for the petitioners argued that both the Courts below failed to consider that husband of the respondent and her son are engaged in their business having no need of any other accommodation for running the business. He submitted that the ‘Aryavrat Printing Industry’ run by Anurag Sharma has been closed purposely for creating fake need. He argued that there is no bonafide need of the shop in question in favour of the respondent and both the Courts below failed to consider the evidence on record establishing the fact that the bonafide need and comparative hardship is in favour of the petitioners. Had Anurag Sharma been in actual need of business, then the printing press would not have been closed. He also submitted that the Courts below did not consider that the business run by respondent’s husband and her son in the name and style M/s Teeka Ram Kallumal and Aryavrat Printing Press respectively, are registered with the Trade Tax Department. He argued that respondent could not establish that his son Anurag Sharma is residing 9 separately from her family and had a need to establish himself in the business. It was further argued that the respondent has utterly failed to establish her alleged need of accommodation in dispute and she had no bonafide and genuine need of the shop in dispute. Learned counsel for the petitioner further argued that the respondent in order to evict the petitioners also filed a S.C.C. Suit No. 1 of 2004 ‘Smt. Usha Sharma vs. Pawan Kumar and others’ with the allegations of sub-tenancy by petitioners Pawan Kumar and Akhilesh Kumar, to the other petitioners which was decided vide order dated 15.02.2008 against the petitioners, but the revision no. 24 of 2008 filed by the petitioners was allowed and the order dated 15.02.2008 passed by the Court below was set-aside. He stated that when respondent failed, she started another proceedings for the eviction of the petitioners which can not be said to be genuine. He argued that respondent is not entitled to any relief, as her alleged need is artificial. Learned counsel for the petitioners pointed out para-54 of the judgment which is incomplete and said that the Trial Court in very casual manner decided the release application. Shri Vashishtha also submitted that comparative hardship of petitioner nos. 3,4, 5 and 6, who are in business, is to be considered and same cannot be considered against Karta only. He argued that a property could not be presumed to be a joint Hindu family property merely because of the existence of a joint Hindu family. In support of his argument he relied on the judgment of Hon’ble Supreme Court reported in (2007) 10 SCC 602. Lastly, he argued that the respondent has completely failed to establish her alleged need of accommodation in dispute and she had no bonafide and genuine need of the shop in dispute but the Courts below have failed to 10 consider this aspect of the case in correct perspective and recorded a perverse finding which is liable to be quashed. 9. On the other hand, Shri V.K. Kohli, the learned Senior Advocate submitted that one vacant shop which is located at a distance of 13th shop from the shop in dispute and the length of which is about 52 feet, is lying vacant and the petitioners can use the same. He argued that the learned Prescribed Authority vide judgment and order dated 06.03.2006 has rightly released the shop in question holding therein the need of the landlady for the same as bonafide; the hardship to the landlady is greater than the tenants. The shop in dispute is being run under the name and style of M/s Kundan Ram Loti Ram and its sale tax registration no. is RN0007638, which is valid from 11th April 1991 and in the said registration, the petitioner no.7 has been shown as owner of the said firm; the tenant can shift the business in the shop which is lying vacant and is situated about 13th shop away from the shop in dispute. He also submitted that the appellant/ petitioners have seven shops available with them. He also argued that availability of the accommodation as mentioned by the learned District Judge, has also not been denied in the writ petition. He further submitted that during pendency of this petition, the petitioner no. 7 has moved an application on 16.12.2009, annexing an affidavit of Shri Kailash Chand (respondent no.7) stating therein that he is ready and willing to offer the said shop to the landlady, which is at a distance of 13 shops in his self acquired property but such offer when made by the respondent before the Court below was not accepted by the petitioners. Now landlady cannot be compelled to accept the said proposal. Learned Senior Counsel for the 11 respondent argued that son of the respondent is residing in the first floor of the shop in question and wanted to set- up a printing press in the shop in question. He submitted that setting up a press in a shop belonging to Kailash Chand will create problem for press, as certain machineries are required to be installed. He argued that under the Act, this Court has to see only the bonafide need of the landlord and comparative hardship and the tenant cannot suggest that the landlord should leave the shop owned by him and to occupy a shop offered by and belonging to tenant. He submitted that so far comparative hardship is concerned, since it is Kailash Chand (respondent no.7) who is occupying the shop and it is also on record that in the sale tax record, the owner of the shop has been shown as Kailash Chand who has vacant shop at a distance of 13 shops from the shop in dispute, hence no hardship would be caused to the tenant on the release of the shop in question. He further submitted that so far the other members in the family of the petitioners are concerned, they have sufficient accommodation, as availability of seven shops with them has not, at all, been denied. He argued that it is a settled law that concurrent findings given by both the Courts below should not be interfered with in a writ jurisdiction. In this connection he referred the decision of Hon’ble the Apex Court in Mrs. Rena Drego vs. Lalchand Soni, etc., reported in 1998- Supreme Court & Full Bench Rent Cases-147 and Surya Dev Rai vs. Ram Chander Rai and others, reported in (2003) 6 Supreme Court Cases-675. 10. During the pendency of present petition, the petitioners filed an affidavit on 16.12.2009 stating therein that deponent of the affidavit i.e. petitioner no.7 is ready 12 and willing to accept the proposal of landlady as asserted in para-17 of release application. Para-3 of the supplementary affidavit is reproduced below:- “3. That as per the version of the respondent in release application that the property which is said to have been lying vacant at the distance after leaving 13 shops in the self acquired property of deponent which was purchased by him from his own fund and the joint Hindu family has no concern with the same. In the said property, the son of the deponent is doing business. Yet for the sake of need of the petitioners of the property in dispute and without prejudice to petitioners case, the deponent is ready and willing to accept the proposal of landlady as asserted in para-17 of the release application and unequivocally offers the aforesaid shop to landlord, accepting here offer of giving the aforesaid shop to her on rent and thus need of landlord has eclipsed.” The learned Senior Counsel for the respondent refused to accept said offer and submitted that landlady cannot be compelled to accept the offer made by a tenant at this stage when the tenant-petitioners have lost from both the Courts below. This Court also feels that the offer made by the petitioners, at this stage, is not bonafide. The petitioners should have accepted the offer made by the landlady in paragraph-17 of release application, at the stage of trial itself. The landlady is the best judge of her requirement, hence offer at this stage cannot be accepted. 11. I have seen the judgments of Courts below and also gone through the material available on record. There is nothing on record which could suggest that Anurag Sharma, for whom release application was moved, is doing business with his father. He has every right to do independent business. The finding recorded by the Courts below regarding bonafide need of landlady is correct. The argument of learned counsel for the petitioners that 13 petitioners, who are members of joint Hindu family, are doing business in the disputed property, cannot be accepted in view of the fact that shop in dispute is being run under the name and style of M/s Kundan Ram Loti Ram and its sale tax registration number is RN 0007638 and in the said registration, the petitioner no.7 has been shown as owner of the firm. Case law cited by learned counsel for the petitioners will also not help them. The petitioner no. 7, in his affidavit dated 16.12.2007, has stated that the shop which is at a distance of 13th shops, is his self acquired property and he is ready and willing to offer the said shop to the landlady. Thus, it is clear that one shop belonging to petitioner no.7 is still vacant. The business which the petitioner no.7 is doing in shop in question can easily be shifted to 13th shop from the shop in dispute and petitioner no. 7 will not face greater hardship. Thus, finding given by the Courts below in respect of comparative hardship is also found correct. I do not find any illegality in the judgments impugned. 12. In view of the aforesaid decisions, writ petition fails and is dismissed. Since petitioners are carrying on their business in shop in question for last several years, time upto 31.03.2011 is granted to them to vacate the premises