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CASE NO.: Appeal (civil)  579 of 2008

PETITIONER: Rakesh Kumar Joshi

RESPONDENT: Narendra Kumar & Ors.

DATE OF JUDGMENT: 22/01/2008

BENCH: S.B. Sinha & Harjit Singh Bedi

JUDGMENT: J U D G M E N T

[Arising out of SLP(C) No. 2179 of 2007]

S.B. SINHA,  J :

1.      Leave granted.         This 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.            Relationship 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 \021shop\022 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.            The said release application was dismissed by the learned Trial Court,  inter alia, opining : \023Sheel Kumar has been carrying on his business  under the name and style \021Balaji Welding Store\022 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.\024

                In regard to the contention raised by the respondent herein that the  appellant had been carrying on three flourishing businesses, it was opined; \023It 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.\024

                It was held :

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\023From 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.\024

2.      An appeal was preferred thereagainst by the respondents. The  Appellate Authority, however, reversed the said findings of the Rent  Controller, inter alia, holding :

\023\005.The 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.    According to Hon\022ble Supreme Court the landlord can  carry the additional business also and for that purpose  he may require shop in dispute.\024  

4.      It furthermore relied upon Rule 16(3) of the U.P. Urban Buildings  (Regulation of Letting, Rent and Eviction) Rules, 1972 to hold : \023In 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.

In 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  Ram\022s wife where the business is being carried.    However, the same is not sufficient for 4 brothers.\024  

5.      The 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

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having acquired alternative accommodations had no legal right to continue  in the disputed accommodation.

6.      Mr. 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.   7.      Mr. 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 correct premise. 8.      We may, at the outset, notice the relevant statutory provisions : \023Section 12. Deemed vacancy of building in certain  cases. \026 (1) A landlord or tenant of a building shall be  deemed to have ceased to occupy the building or a  part thereof if \026 (a)     xxxxxxxxxxxxxxxxxx (b)     xxxxxxxxxxxxxxxxxx (c)     xxxxxxxxxxxxxxxxxx (2)     xxxxxxxxxxxxxxxxxxxxxxx (3)     In 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 :

Provided 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. \026 For the purposes of this sub-section \026

(a)     a 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 licensee;

(b)     the expression \023any member of family\024, in  relation to a tenant, shall not include a person  who has neither been normally residing with  nor is wholly dependent on such tenant.\024

    Section 16 of the Act provides for the powers of the District  Magistrate to pass order in regard to allotment and release a of vacant  building.           Rule 16 of the U.P. Urban Buildings (Regulation of Letting, Rent and  Eviction) Rules, 1972 reads, thus :

\02316. Application for release on the ground of personal  requirement. (1)xxxxxxxx

\005\005\005..x\005\005\005\005\005\005x\005\005\005

(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

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prescribed authority shall also have regard to such facts  as the following \026

(a)  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;

(b)  where 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; (c) 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 ;

(d)  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.\024

9.      By 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 \021a\022 of sub-Section (1) of  Section 21 of the Act. 10.     The High Court, therefore, clearly erred in invoking the provisions of  Section 12(3) and 16 of the Act.         The 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.      The 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.

11.     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,

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there shall be no order as to costs.