Tota Ram Panthari v. Ratnambar Dutt Joshi & Ors

Advocate on the first floor was in occupation of 3 respondent nos. 1 to 3 at the time of filing release application. Only one room on the first floor was in the tenancy of Arun Parmar and rest of the first floor as well as second floor was in occupation of respondent nos. 1 to

#3. As the respondent no.3 started causing damage to the shop in dispute, the petitioner instituted a Suit No. 32 of 1996 for injunction, restraining respondent no.3 from causing any damage to the shop in question. This suit was decreed on 20.12.1996 by the Court of Civil Judge (Jr. Div.), Kotdwar.

#4. It is stated in the petition that respondent nos. 1 to 3-landlords filed application for release of the shop in dispute under Clause (a) & (b) of sub-section (1) of Section 21 of the U.P. Urban Building (Regulation of Letting Rent and Eviction) Act, 1972 (hereinafter referred to as the Act) before the Prescribed Authority, Kotdwar against the petitioner, alleging that the shop in dispute is in dilapidated condition and it requires reconstruction and the shop in dispute is also required for their personal occupation. The application was registered as Rent Case No. 16 of 2005 Ratnamber Dutt Joshi and others vs. Digambar Prasad Kainthola and others.

#5. The landlords/respondent nos. 1 to 3 also filed release applications against other tenants (Rent Case No. 12 of 2005 Ratnamber Dutt Joshi and others vs. Suman Kant and others, Case No. 13 of 2005 Ratnamber Dutt Joshi and others vs. Jagdish Prasad and others, Case No. 14 of 2005 Ratnamber Dutt Joshi and others vs. Mohd. Yameen and others, Case No. 15 of 2005 Ratnamber Dutt Joshi and others vs. Baba Nihal Singh and Case No. 17 of 2005 Ratnamber Dutt Joshi and others vs. Balwant 4 Singh and others) also under Clauses (a) and (b) of sub- section (1) of Section 21 of the Act before the Prescribed Authority, Kotdwar with identical facts and allegations. All the cases were consolidated and were tried and decided together by the Prescribed Authority.

#6. The applications were contested and written statements were filed alleging that the respondent nos. 1 to 3 have no need of the shops in dispute and the shops in dispute are not in dilapidated condition. In order to prove their version, the landlords filed affidavits of Ratnamber Joshi, Satish Chandra, Praveen Joshi, Smt. Poornima Joshi, Sandeep Naithani, Jyotsana Dhyani, Anil Kumar, rejoinder affidavit of Ratnamber Joshi and documentary evidence they filed tax assessment register, copies of applications dated 07.06.1990 and 07.07.1990 which were moved by Praveen Joshi to S.D.M., Kotdwar, report of Station House Officer, Kotdwar dated

28.07.1990, notice u/s 263 of Municipal Act issued by Municipal Board, notices dated 11.12.1991 and 27.09.1997 given to tenants and receipt, notice dated 16.07.1999 issued by Municipal Board u/s 263 of Municipal Act, notice dated 20.09.2004 given to tenants, receipt of registry, inspection report of Engineer Chamoli Associate , photographs, map and estimate prepared by Chamoli Associate. In reply, the tenants filed affidavits of Mohd. Aabid, Suman Kant, Jagdish Prasad, Mohd. Yameen, Baba Nihal Singh, Digamber Prasad, Balwant Singh Gusain, Rajeev Kumar Verma, Harendra Singh Chauhan, Virendra Dutt Tewari, Shashank Shekhar Sharma and Smt. Jyotsna Dhyani. 5

#7. After the evidence was concluded, Prescribed Authority vide her common judgment and order dated 24.04.2007 allowed the applications filed under Section 21 (1) of the Act and released the shops in question in favour of the landlords/respondent nos. 1 to 3. The petitioners were directed to vacate the shops in question within two months and further to hand over possession thereof to the landlords. Being aggrieved by the judgment dated 24.04.2007 the tenants/petitioners preferred appeals before the District Judge, Pauri Garhwal, which were registered as Misc. Civil (Rent) Appeal No(s). 16 of 2007, 18 of 2007, 19 of 2007, 20 of 2007 and 21 of 2007. The landlords/respondent nos. 1 to 3 also filed cross objections against the part of the judgment whereby their application under Clause (b) of sub-section (1) of Section 21 of the Act was rejected. The learned District Judge also did not find favour of the tenants and dismissed the appeals preferred by them but allowed the cross objections of the landlords/respondent nos. 1 to 3. Writ Petition No. 144 of 2010 (M/S) has been filed against the judgment and order dated 24.04.2007 passed by Prescribed Authority, Kotdwar in Rent Case No. 16 of 2005 and judgment and order dated 08.01.2010 passed by District Judge, Pauri in Rent Appeal no. 21 of

#2007. Writ Petition No. 145 of 2010 (M/S) has been filed against the judgment and order dated 24.04.2007 passed by Prescribed Authority, Kotdwar in Rent Case No. 14 of 2005 and judgment and order dated 08.01.2010 passed by District Judge, Pauri in Rent Appeal no. 19 of 2007. Writ Petition No. 147 of 2010 (M/S) has been filed against the judgment and order dated 24.04.2007 passed by Prescribed Authority, Kotdwar in Rent Case No. 13 of 2005 and judgment and order dated 08.01.2010 passed 6 by District Judge, Pauri in Rent Appeal no. 18 of 2007. Similarly, Writ Petition No. 148 of 2010 (M/S) has been filed against the judgment and order dated 24.04.2007 passed by Prescribed Authority, Kotdwar in Rent Case No. 15 of 2005 and judgment and order dated 08.01.2010 passed by District Judge, Pauri in Rent Appeal no. 20 of

#2007. All these four writ petitions were clubbed and are being decided by a common judgment.

#8. In their release application no. 11/2005, the landlords/ respondent nos. 1 to 3 came up with the case that the landlords/applicants have a four storeyed building situated within municipal area in Ward No. 22, House No. 6 which is about 100 years old and is in dilapidated condition. Mother of the applicants Smt. Kalpeshwari Devi was residing in said building but due to decrepitude condition of the premises in question, she left the building. The applicants instituted as many as eight civil suits for release of the premises in question. In the release application, it is stated that the applicant no.1, after his retirement, is jobless. He has two married daughters and one son. His son is unemployed after passing B.Com degree. Applicant no.2, after being retired, is also unemployed who has three daughters and a son aged about 11 years. The applicant no. 3 shall be retired in the year 2007. The applicant no. 3 has a son aged about 17 years who is also unemployed after intermediate examination. All the applicants are residing separately on rental basis, thus the applicants are in genuine need of the entire building for their residence as well as for commercial purposes. The applicants, after demolishing the premises in question, intend to construct a commercial-cum-residential building. Need of the 7 applicants/respondents is genuine and bona-fide, while the petitioner is well settled and is not using the shop/room in his possession. The petitioner is not in need of the premises in his possession. It is further stated that in the city of Kotdwar and to its surroundings, several business and commercial complexes have been constructed and opened; hundreds of such complexes are vacant for purchase as well as for hiring on rent and the petitioner can do needful according to his requirement. The petitioner will not face comparative hardship in vacating the premises in his possession. The defendant no.1 Abdul Raseed filed his written statement with the averment that the application filed by the respondents under Section 17 of the Act is not maintainable. The landlords/ applicants are not in need of accommodation in question, as applicant no. 1 was aged about 75 years who resides in Delhi with his family members. His daughters are marries and his son has been settled at Delhi. The landlords/applicants have not mentioned in their release application that for whose family or for which applicant, the accommodation is required. The applicant no.2 is not unemployed as he was retired in the year 1990 and is living at Dehradun in his own house and his family has been settled there. The applicant no.3 is in Govt. job, his wife is Vice Principal and they had their own house. One shop is vacant in the premises. The landlords/applicants have no need of the accommodation in dispute. The petitioner/tenant is running hair-cutting salon in the accommodation since long and he had no other source of income. The petitioner/tenant has earned goodwill at this place. If the is vacated, the petitioner/tenant will suffer irreparable loss. The property is on Nazool land, which 8 requires proper renewal. The applicants/landlords did nothing for ownership of the property in their names through freehold scheme as directed by the Government in the year 1992. As the property has not been renewed, now ownership rights vests on the Government only. The applicants/landlords have no locus standi so sue. In written statement, it was also stated that there involve serious question of title and the title cannot be decided summarily. The Trial Court has no jurisdiction to try the suit. In their replica, the landlords/applicants stated that in respect of alleged PATTA the landlords are paying lease rent to the Municipal Board, Kotdwar and their rights of ownership are not, at all, changed in any manner. The applicants are the owner/landlords of the property in dispute and there are relation of landlord and tenants in between the parties. The Trial Court is fully empowered to hear and decide the dispute. They further stated that the freehold policy is optional one and the holder of Nazool land cannot be compelled to indulge freehold proceeding.

#9. In Rent Case No(s). 12/2005, 13/2005 14/2005, 15/2005, 16/2005 and 17/2005, filed by the applicants/respondents, the applicants came with the identical averments as was averred in Rent Case no. 11/2005 stating therein that their need is bona fide and genuine. Rest of the averments made in the Rent Case No. 11/2005 was reiterated. In reply to the averments made by the landlords/applicants, rest of the tenants have averred that they are doing their respective business in the accommodation in dispute since long and they have no other source of income. They have earned goodwill in their business at the place of the building in dispute. 9 Further, if the shops in their possession are vacated the tenants will suffer irreparable loss and hardship.

#10. I have heard Mr. Sudhir Kumar, the learned counsel for the petitioners, Mr. B.P. Nautiyal, the learned counsel for the respondents and perused the entire material available on record and have also gone through the law cited on various issues.

#11. It is pertinent to mention here that so far the questions, as to whether is there any relation as landlords and tenants in between the parties and whether provisions of U.P. Act no. XIII of 1972 are attracted in the property in suit are concerned, these questions are not pressed by the petitioners. Now three questions are remained to be determined by this Court. First, whether the property in dispute is in dilapidated condition secondly, whether need of the landlords is genuine and bona fide and thirdly, whether comparative hardship of petitioners is grater than the landlords.

#12. Mr. Sudhir Kumar, the learned counsel for the petitioners first of all assailed the impugned judgment and orders on the ground that impugned orders are perverse, against the law and facts on record and both the Courts below failed to appreciate that motive of the Act is to protect the interests of the tenants, therefore eviction of the tenants cannot be directed on flimsy grounds, as the Courts below utterly failed to consider that applicant no. 1 has retired more than 20 years ago and at the time of filing release application he was more than 75 years of age and his 32 years’ son has been shown as unemployed. Similarly, the applicant no. 2 has been retired 15 years ago 10 at the time of moving release application and he was settled at Dehradun. Both the Courts below have failed to consider that the applicant no.3 had not retired at the time of moving release application and was in regular service. However, he contended that the son of applicant no.1 is an accountant and he has been settled at Delhi and there is no evidence as to whether he was ever interested in settling at Kotdwar, leaving Delhi. He further contended that both the Courts below have ignored to enquire into the genuineness of the alleged need of respondent nos. 1 to 3 and to find out the extent of the space required by them to satisfy their alleged need. He argued that undisputedly, the applicants had one vacant shop in their possession for a long time and had there been any need of the applicants, they could have occupied the same for doing business which itself illustrate that need of the applicants was not bona fide and genuine. He vehemently contended that after the decision of Prescribed Authority, Shri Suman Kant and Shri Balwant Singh have vacated the shops in their tenancy and these two shops also came in the possession of the applicants. He argued that in addition to it, Shri Arun Parmar also vacated the area in his tenancy on the first floor and this portion also came in occupation of the applicants. He argued that, conclusively the applicants are in occupation of three shops as well as entire first and second floor of the premises in dispute, therefore the need of the applicants, if any, stands fully satisfied.

#13. Learned counsel for the petitioners further submitted that the landlords have not given any particulars of their alleged requirement in their release application. It has not been stated as to where each of the 11 landlords had been living and what they and their sons had been doing, before the release applications were filed; what is the source of their income and the quantum thereof and whether the same is sufficient for their living or not. He further submitted that the landlords have given their addresses as Badrinath Marg, Kotdwar in their release application and have not given their correct addresses for no reasons. He argued that it is sufficiently proved on record that the applicant no.1 is living at Delhi with his family, the applicant no.2 is living at Dehradun with his family and applicant no.3 was gainfully employed in Garhwal Mandal Vikas Nigam and his wife was also employed as Principal in Govt. College. He submitted that the need of applicant no.1 for the business in the premises in question is not, at all, established and same is the position with applicant no.2. No reasons have been given as to why no business was started in the shop in the occupation of the landlords. He submitted that the landlords are in possession of three vacant shops in which they can carry out their business. Their immediate needs are totally satisfied. He submitted that the landlords have nowhere stated about the nature of the business, they want to start, and the extent of space that may be required for the said business, thus the landlord have utterly failed to prove their need and the extent of the premises required for their alleged need. He argued that the Courts below have also not considered these factors, which are required to be considered and non-consideration thereof has vitiated the decisions of both the Courts below. The counsel for the petitioners relied on the decision of Hon’ble Supreme Court in the case of Ansuyaben Kantilal Bhatt vs. Rashiklal Manilal Shah and another, reported in AIR 1997 SC- 2510, the decision of Allahabad High court 12 in the case of Jai Prakash Rastogi vs. 1st Addl. District Judge, Bulandshar and others, reported in 2000(2) ARC- 569 and decision of Allahabad High Court in the case of S.B. Bhardwaj and others vs. XIth Addl. District Judge Kanpur and others, reported in 2002(2) ARC-244.

#14. Counsel for the petitioners also contended that the Appellate Court has committed manifest error of law in recording findings that the building in dispute is in dilapidated condition and in accepting the report of the Engineer, examined by applicants, because no evidence is placed to prove that the building is hundred years old construction. He argued that the finding recorded by both the Courts below on the issue of comparative hardship is wholly against the law and facts on record. Mr. Sudhir Kumar, the learned counsel for the petitioners argued that release application under Section 21 (1) (a) and (b) of the Act is not maintainable. He vehemently argued that the Appellate Court erroneously allowed the composite application for release of the shop under both the Clauses (a) and (b) of Section (1) of Section 21 of the Act. As under Clause (a), the landlord can get the release of the premises on proof of his bona-fide requirement irrespective of whether the building is in dilapidated condition or not while under Clause (b), the landlord can get the release of the premises on proof of the building being in dilapidated condition irrespective of whether the landlord has any need of the same or not. Under Clause (b), the tenant has a right of re-entry but the tenant has no such right under Clause (a). The nature of proof for release of the premises is also totally and altogether different under both the Clauses. He argued that Order II Rule 3 of the Code of Civil Procedure provides that more 13 than one cause of action can be joined in a suit, while Order I Rule 3(b) of the Code provides that several defendants may be joined in the same suit if common question of law and facts arise. Both these rules, if read together, provide that only such cause of action can be joined in a suit when common question of law and facts arise which can be decided on the same evidence. Placing reliance on the decision of Allahabad High court in the case of Dwarike Prasad vs. Kishan Lal and others, reported in AIR 1986 Allahabad-174 and in the case of Shibboo vs. 1st Addl. District Judge, Ghaziabad and another, reported in 1983 (1) ARC-33, Mr. Sudhir Kumar, Advocate submitted that composite application for release under Clauses (a) and (b) of sub-Section (1) of Section 21 of the Act itself being not legally maintainable, is liable to be dismissed.

#15. Learned counsel for the petitioners further submitted that it is required for the landlord to seek relief under Clause (a) of sub-Section (1) of Section 21 of the Act to establish by definite and positive averments stating the nature of need and its accrual and how it is necessary for the landlord for his comfortable living. He argued that it is further to be proved by the landlord regarding the extent of the accommodation required for satisfying his alleged need. In this regard he placed reliance upon the decisions of Hon’ble Supreme Court in the case of Phiroze Bamanji Desai vs. Chandrakant M Patel, reported in AIR 1974 SC-1059 and Deena Nath vs. Pooran Lal, reported in (2001) 5 S.C.C.-705.

#16. On the other hand, Mr. B.P. Nautiyal, the learned counsel for the applicants has submitted that so 14 far as the bona-fide need of the applicants/landlords is concerned, there is concurrent finding of facts of both the Courts below. He contended that scope of writ jurisdiction under Article 226 of the Constitution of India is limited and while exercising this jurisdiction, the High Court cannot sit like a Court of appeal, thus it cannot re- appreciate or revaluate the evidence so as to arrive at a different conclusion. Only perversity in the impugned order can be judged as has been observed in the Apex Court in Surya Dev Rai vs. Ramchandra Rai, reported in 2003 SC page 675, 2003 S.C.W.-3872, (2004) 3 SCC-682 and 2004 S.C.W.4241. A preliminary objection has also been raised to the effect that one of the writ petitions has been filed by petitioner-Tota Ram Panthari who was neither tenant nor party before the Prescribed Authority or Appellate Authority. About the status of Mr. Tota Ram, there is no whisper either in the pleadings of the parties or in the orders passed by the Trial Court or Appellate Court, therefore, this petitioner has no locus standi to file writ petition as the alleged partnership is not pleaded by the tenant Shri Digambar Singh Kainthola in PA Case No. 16 of 2005 and Rent Control Appeal No. 21 of 2007, as such, the Writ Petition No. 144 of 2010 (M/S), which is filed by an outsider to the proceedings and who had never been there as tenant of the landlords in the disputed shops, is not legally maintainable and is liable to be dismissed on this ground alone.

#17. So far on the merits of the case, the learned counsel for the applicants/landlords Mr. B.P. Nautiyal submitted that in view of provision contained in Section 21 (1) of the Act itself, the applications are legally maintainable on both the grounds or any of the grounds 15 exists. For proper appreciation, Section 21 (1), 21 (1) (a) and 21 (1) (b) of the Act are reproduced as below:- its existing “21. Proceedings for release of building under occupation of tenant- (1) The prescribed authority may, on an application of the landlord in that behalf, order the eviction of a tenant from the building under tenancy or any specified part thereof if it is satisfied that any of the following grounds exists namely- (a) that the building is bona fide required either form or after demolition and new construction by the landlord for occupation by himself or any member of his family, or any person for whose benefit it is held by him, either for residential purposes or for purposes of any profession, trade or calling, or where the landlord is the trustee of a public charitable trust, for the objects of the trust; (b) that the building is in a dilapidate condition and is required for purposes of demolition and new construction.”

#18. So far the bona-fide need of the landlords is concerned, learned counsel landlords has submitted that there is concurrent finding of fact of both the Courts below on this question. The learned Prescribed Authority after considering the material evidence on record while passing the judgment and order dated

24.04.2007 has given specific findings on the bona-fide need of the landlords and has observed that the tenant cannot prevent the landlord to start business, even after retirement from any Govt. job. Further the landlords are in need of property in question for self-business as well as for the business of their sons. The tenants cannot challenge the need of landlords demanding thereby as for whose employment the tenanted shops are required either 16 for the landlords or for their children. He further contended that the learned Prescribed Authority while giving findings on the bona-fide need of the landlords has further observed that landlord no. 1 is without job after his retirement and his son, who is having B. Com. Degree, is also unemployed; landlord no. 2, after his retirement is without any job and son of landlord no. 3 is also jobless. The landlords/applicants have no other property at Kotdwar except the disputed property, on account of which the applicants are living separately on rental basis. The applicants’ need has been increased gradual on account of increase of family members. The landlords and their sons have to engage themselves separately in a job- oriented employment and they have to fulfill their residential requirements. The landlords intend demolish the dilapidated structure and want to construct a residential-cum-commercial house in its place. He submitted that the tenants did not endeavour to search alternate shops after applications for release were filed. The tenant Jagdish Prasad has started business in front of disputed property after taking the same on rent from Municipal Board, Kotdwar. Jagdish Prasad has also constructed huge commercial complex and shops in front of Tehsil heading to Badrinath way and he selling/giving on rent these shops. Besides it, one large shop (100 feet in length/depth) is ready in the same Badrinath way, near TATA MARSARI, adjacent to Dr. Bisht, which belongs to the tenant Jagdish Prasad and above it a double storey building has been constructed. On the way heading to Badrinath, near the bridge, the tenant Baba Nihal Singh has constructed a business complex measuring 100 feet X 100 feet on his own land and a small portion of which is sufficient for his business. 17 He is also having a huge double storeyed building at the same site, which was earlier in the tenancy of Forest Corporation (at present is vacant) and the shop of armory can smoothly be run there. The tenant Digambar Prasad has established his business, after purchasing the house/shop of Dr. Benerji, situated adjacent to the property in dispute, in the main way heading to Badrinath. The tenant Abdul Raseed has his own house on the main Suman Road, Kotdwar and there is enough space, therefore, shop of barber can easily be run there. Mr. Arun Parmar has his own house at Aamparao, Jaunpur, Kotdwar and he is running typing institute there. Mr. Sumankant is having commercial building at Degree College Road and his shop can swiftly run there. Mr. Balwant Singh is having a house at the commercial site situated at Jaunpur, Kotdwar and, in case, if he desires to start business, he can do so there. The tenant Mohd. Yamin has owned shop at Garighat, Kotdwar and he is running a well established Dry-cleaning and laundry shop. Counsel landlords has vehemently contended that the landlords can live and do their business simultaneously in the building in question, therefore, their need is purely bona-fide and genuine. The Prescribed Authority considered comparative hardship and found that the tenants are having suitable and sufficient alternative accommodations with them, thus they will not suffer any hardship on release of the shops under their tenancy. He submitted that, in case, if the tenant has alternate site for business, comparative hardship should be determined against him. He submitted that finding of the Trial Court is confirmed by the Appellate Court and the Appellate Court concurred with the findings of Trial Court. 18

#19. So far the question about the building being in dilapidated condition is concerned, counsel for the petitioners Mr. Sudhir Kumar has contended that the Prescribed Authority has rejected the application of the landlords on this score holding that the premises is not in dilapidated condition and the landlords cannot take benefit of their own wrongful acts. He submitted that the landlords did not file any appeal against the said decision, but preferred cross objection against the said part of the judgment, first of all, before the Appellate Court in the appeals filed by the tenant against the decision of the Prescribed Authority, about their bona fide need. He contended that provisions of cross appeal are not applicable to the proceedings under the Act. He contended that the findings of the Appellate Court that, under the Act, the cross objections are permissible and legally maintainable, is perverse and cannot be sustained in the eyes of law. It is submitted that cross-objection are filed under sub-Rule (1) of Rule 22 of Order XLI of the Code and can be maintainable only against a finding and not against a decree, as the provision contained therein specifically provides that a respondent can only challenge a finding in the decree and cannot challenge the decree itself under this provision. The cross-objections of the landlords were not maintainable and the Lower Appellate Court committed a mistake of law in entertaining the same. He placed reliance on the decision of Himachal Pradesh High Court in the case of Lata vs. United India Insurance Co. Ltd. And others, reported in 2005 (2) T.A.C.-902. He further argued that even assuming that the cross-objections of landlords were legally maintainable, even then the order of Lower Appellate Court on the question of dilapidated condition of the 19 building in question, cannot be sustained in law. It is submitted that the word ‘dilapidated’ has not been defined in the Act. The literal meaning of the word ‘dilapidated’ as given in the dictionaries is ‘beyond repairs’, ‘decayed’, ‘to bring into partial ruin due to neglect or misuse’. Reliance was placed on the judgment of Allahabad High Court in the case of Smt. Chando Devi and others vs. 3rd Addl. District Judge, Mathura and others, reported in 1984 (1) ARC-10, Ram Kumar vs. 3rd Addl. District Judge, Faizabad and others, reported in 1986 (2) ARC-275 with the arguments that in the light of these decisions, it has to be seen whether the building has suffered natural decay or has been damaged to cause the eviction of the tenants from the shops in dispute. It is submitted that none of the Courts below got the premises in dispute inspected, either personally or through a commissioner. The parties have produced opinion of experts, but the Lower Appellate Court has declined to accept the report of the expert submitted by the tenants, and has preferred to believe the report of the expert of the landlords, only on the ground of better qualification without comparing the two reports and to find out which of them should be given preference over the other.

#20. Mr. B.P. Nautiyal, Advocate has argued that the learned Appellate Court, while considering the case of the landlords regarding dilapidated condition of the building, after examining the pleadings of the parties, material evidence led by the parties and also proposition of law laid down by Hon’ble Aped Court as well as High Court, has concluded that the building in question is in dilapidated condition and it requires demolition. He submitted that the Appellate Court considered the notices 20 issued, under Section 263 of Municipality Act, by the Municipal Board, Kotdwar as well as the order passed by the District Magistrate directing one of the tenants, Mr. Nihal Singh, to shift his business to another place. He submitted that the Appellate Court has also taken into account the report of expert Engineer having degree of AMIE Civil, who certified the dilapidated condition of the building with the further report for demolition of the same. In this regard, learned counsel for the landlords placed reliance on the judgment of this Court in Padam Singh vs. D.J. Almora and ors., reported in 2008 (UAD- 423).

#21. In reply to the objection raised by the petitioners’ counsel, that the cross objection filed by the landlords in the appeal was not maintainable (reliance was placed on the judgment rendered in 2005 (II) TAC- 902), the learned counsel for the landlords has stated that the argument is misconceived and the citation relied upon by the counsel for the petitioners does not apply on the facts of the present case, as the case in hand is under the provision of U.P. Act no. XIII of 1972, whereas the citation relied on by the counsel for the petitioners is under the Motor Vehicles Act, 1988 and the Motor Vehicle Rules framed by the State of Himanchal Pradesh. He concluded that the subject matter of instant case is covered by the provisions of U.P. Act No. XIII of 1972 and the power under Section 22 read with Section 10 U.P. Act no. XIII of 1972 are same, which vest with the Appellate Authority under Order 41 Rule 22 and 33 C.P.C., therefore, the Appellate Authority has jurisdiction to entertain cross objections. He further submitted that the Appellate Authority has dealt with the question regarding 21 maintainability of cross objection filed by the landlords in the rent control appeal filed by the tenants and after considering rival contention of both the parties and relevant provision of the Act and Order 41 Rule 22 and 33 C.P.C. and also the law laid down on the maintainability of cross objection under the Act, rejected the objection of tenants and held that cross objection are maintainable. In this regard learned counsel for the landlords placed reliance on (1983) ARC-150 and 1996 (2) ARC-672.

#22. So far the argument of learned counsel for the tenants that there is no need of the landlords for the property in dispute, as the landlords are only three members but eight shops have been released by the Courts below in their favour, Mr. B.P. Nautiyal, Advocate has replied that both the Courts below have considered need of six unemployed male members and found their need bona-fide and genuine for the disputed shops, therefore, contrary arguments advanced by the counsel for the petitioners is misconceived and against the material evidence on record. Learned counsel for the landlords put emphasis on the judgment of Apex Court rendered in 1995 (SC) 576, 2009 (1) ARC-715 and 2009 (1) ARC-302.

#23. I have gone through the law cited by the learned counsel for the parties and perused the judgments of the Courts below. Both the Courts below, while considering bona-fide need of the landlords for the property in dispute, have given concurrent findings. I am also of the considered view that the tenant cannot prevent the landlord to start business at his choice place, even 22 after retirement from any Govt. job; the landlords are in need of property in question for self-business as well as for the business of their sons. The landlord no. 1 is jobless after his retirement and his son who is having B. Com. degree is also unemployed; landlord no. 2, after his retirement is without any job and son of landlord no. 3 is also jobless. The landlords/applicants have no other property at Kotdwar, except the disputed property, and the landlords are living separately on rent. The applicants’ need has been increased gradually due to increase of family members. The landlords and their sons have to engage themselves separately a job-oriented employment and they have to fulfill their requirement for residential purpose. The landlords intend to demolish the dilapidated structure and want to construct a residential- cum-commercial house in its place. The tenants in their affidavits have not denied that they have their own properties in Kotdwar city. As has been emerge out from the record, that the tenant Jagdish Prasad has started business in front of disputed property, after taking the same on rent from Municipal Board, Kotdwar. Tenant Jagdish Prasad has also constructed huge commercial complex and shops in front of Tehsil heading to Badrinath way and he is selling/giving on rent these shops. Besides it, one large shop (100 feet in length/depth) is ready in the same Badrinath way near TATA MARSARI adjacent to Dr. Bisht, which belongs to the tenant Jagdish Prasad and above it a double storey building has been constructed. On the way heading to Badrinath near the bridge the tenant Baba Nihal Singh has constructed a business complex measuring 100 feet X 100 feet on his own land and a small portion of which is sufficient for his business. He is also having a huge double storeyed building at the 23 same site which was earlier in the tenancy of Forest Corporation and at present is vacant and the shop of armory can smoothly be run. The tenant Digambar Prasad has established his business, after purchasing the house/ shop of Dr. Benerji situated adjacent to the property in dispute in the main way heading to Badrinath. The tenant Abdul Raseed has his own house on the main Suman Road, Kotdwar and there is enough space therefore, shop of barber can easily be run there. Arun Parmar has his own house at Aamparao, Jaunpur, Kotdwar and he is running typing institute there. Mr. Sumankant is having commercial building at Degree College Road and his shop can run swiftly there. Mr. Balwant Singh is having a house at the commercial site situated at Jaunpur, Kotdwar and, in case, if he desires to start business, he can do so there. The tenant Mohd. Yamin has his own shop at Garighat, Kotdwar and he is running a well-established Dry- cleaning and laundry shop. The landlords intend to live and do their business simultaneously in the building in question, therefore, their need is bona-fide and genuine. The Prescribed Authority considered the comparative hardship and found that the tenants are having suitable and sufficient alternate accommodations with them, thus they will not suffer any hardship on release of the shops under their tenancy. Thus, if the tenant has alternate site for business, comparative hardship shall be determined against him. Now, if the property in question be released, the tenants shall not suffer any irreparable loss, as they had alternative business sites, rather the landlords, who living separately on rental basis, shall suffer irreparable loss, in case release application is rejected. The landlords cannot be prevented to start business at their place of choice. I am convinced with the findings 24 recorded by both the Courts below so far bona-fide and genuine need of the landlords is concerned.

#24. So far on the point of dilapidated condition of the building in question is concerned the landlords have come up with the case that the building in question is 100 years old construction. Walls are constructed with stones and thick mud plaster. The roof is built of in old fashion with wooden logs. About 20-22 years ago, the building had rendered decrepitude due to old age and it had reached to its fallen stage. Again on 20.01.1991, due to earthquake the walls and roofs of the building became fragile. Logs of the roof have been decayed and the building can fall anytime thereby causing grave mishap. The Trial Court has observed that the building cannot be said to be in dilapidated condition because the landlords did not produce any credible or cogent evidence to prove their version. But the Appellate Court in its findings has taken contrary view, observing that composite application for release of the property in question under both the Clauses (a) and (b) of Section (1) of Section 21 of the Act was filed by the landlords. While allowing the cross- objections of the landlords, the learned Appellate Court has observed that the building in question dilapidated condition, which requires demolition. The learned Appellate Court, while giving such findings, has rightly considered the notices issued under Section 263 of Municipality Act by the Municipal Board, Kotdwar and also the order passed by the District Magistrate directing one of the tenants Mr. Nihal Singh to shift his business to another place. The Appellate Court has also taken into account the report of expert Engineer having degree of AMIE Civil who certified the dilapidated condition of the 25 building with the further report for demolition of the same. This Court is in conformity with the findings recorded by the learned Appellate Court, hence the finding recorded by the Appellate Court is upheld.

#25. In view of above discussion, the writ petitions fail and are dismissed. In the peculiar circumstances of the case, it is directed that the tenants/writ petitioners shall vacate the shops/premises in question on or before 31st March, 2011 and hand over peaceful possession thereof to the respondents/landlords.

#26. No order as to costs.

#27. Let certified copy of the judgment be placed in all the connected writ petitions. NCM: (V.K. Bist, J.) 03.09.2010