{"id":96187,"date":"2007-03-28T00:00:00","date_gmt":"2007-03-27T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/rishi-kumar-govil-vs-maqsoodan-and-ors-on-28-march-2007-2"},"modified":"2018-09-04T20:55:28","modified_gmt":"2018-09-04T15:25:28","slug":"rishi-kumar-govil-vs-maqsoodan-and-ors-on-28-march-2007-2","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/rishi-kumar-govil-vs-maqsoodan-and-ors-on-28-march-2007-2","title":{"rendered":"Rishi Kumar Govil vs Maqsoodan And Ors on 28 March, 2007"},"content":{"rendered":"<div class=\"docsource_main\">Supreme Court of India<\/div>\n<div class=\"doc_title\">Rishi Kumar Govil vs Maqsoodan And Ors on 28 March, 2007<\/div>\n<div class=\"doc_author\">Author: D A Pasayat<\/div>\n<div class=\"doc_bench\">Bench: Dr. Arijit Pasayat, Lokeshwar Singh Panta<\/div>\n<pre>           CASE NO.:\nAppeal (civil)  1601 of 2007\n\nPETITIONER:\nRishi Kumar Govil\n\nRESPONDENT:\nMaqsoodan and Ors.\n\nDATE OF JUDGMENT: 28\/03\/2007\n\nBENCH:\nDR. ARIJIT PASAYAT &amp; LOKESHWAR SINGH PANTA\n\nJUDGMENT:\n<\/pre>\n<p>JUDGMENT<\/p>\n<p>DR. ARIJIT PASAYAT, J.\n<\/p>\n<p>Leave granted.\n<\/p>\n<p>Challenge in this appeal is to the order passed by the learned Single Judge<br \/>\nof the Allahabad High Court dismissing the Writ Petition filed by the<br \/>\nappellant. Challenge in the writ petition was to the order passed by the<br \/>\nPrescribed Authority as affirmed by the Appellate Authority allowing the<br \/>\nrelease application of the respondent No.1-landlady.\n<\/p>\n<p>Sans unnecessary details factual position is as follows:\n<\/p>\n<p>Late Ram Govil was tenant of a shop situated at Ansari Road, Bulandshahr<br \/>\nsince 1941. Smt. Maqsoodan purchased the aforesaid shop on 11.12.1979 from<br \/>\nSri Ganesh Datt, the erstwhile landlord. She moved release application<br \/>\nNo.R.C. 31 of 1984 under Section 21(1)(a) of the Uttar Pradesh Urban<br \/>\nBuildings (Regulation of Letting, Rent and Eviction) Act, 1972 (in short<br \/>\nthe &#8216;Act&#8217;) for the need of her son-Shamshad Ahmad. In the release<br \/>\napplication, the respondent No.1-landlady prayed that the shop was urgently<br \/>\nrequired as her husband intended to start business of repairing fire arms<br \/>\nfrom the disputed shop for her son- Shamshad Ahmed.\n<\/p>\n<p>The release application was contested by the appellant &#8211; tenant by filing<br \/>\nwritten statement and denying the stand.  She took the stand that the claim<br \/>\nwas not bona fide and genuine and the release application has been moved<br \/>\nwith the mal-intention of harassing him. It was also alleged that the<br \/>\nlandlady was in possession of two other shops, having basement as well<br \/>\nsituated at Ansari Road, Near Chowk Bazar which were in the use and<br \/>\noccupation of Sri Imtiaz Ahmad, husband of the landlady. The appellant<br \/>\nfurther alleged that the purpose of getting release of disputed shop was<br \/>\nneed for starting business of repair of fire arms whereas the same business<br \/>\nis being run by the husband of the landlady from the aforesaid two shops.<br \/>\nThe case of the landlady was that the disputed shop was not suitable for<br \/>\nthe purpose of carrying on business of repair of fire arms and that earlier<br \/>\nthe licence of the shop-M\/s B.A. Shastra Bhandar was in the name of one<br \/>\nShamshuddin, sister&#8217;s son of the husband of the landlady, on whose death,<br \/>\nSri Shamshad Ahmad, for whose need the release application had been moved,<br \/>\nwas carrying on the business of repair of fire arms with his father, i.e.,<br \/>\nhusband of the landlady from the aforesaid two shops.\n<\/p>\n<p>The appellant claimed that he being a medical practitioner, he has his<br \/>\nchamber in the disputed shop wherefrom his son Kumar Govil was carrying on<br \/>\nthe business as optician and that the situation of the disputed shop was<br \/>\nperfect for his above business as there was no other shop of opticians in<br \/>\nthe vicinity.\n<\/p>\n<p>In support of his case, the appellant filed his own affidavit stating<br \/>\ntherein that son of the landlady was carrying on the business of repair of<br \/>\nfire arms with his father i.e. husband of the landlady in two shops along<br \/>\nwith first basement in Chowk Bazar near Ansari Road, Bulandshahr. He<br \/>\nalleged that the family of the landlady was very rich as her husband was in<br \/>\npossession of a big shopping complex at Kala Aam Ka Churaha, Bulandshahr<br \/>\nnear D.M. Colony Road. That apart, the husband of the landlady had<br \/>\nconstructed large motor Workshop having plinth area of 1717 sq. yards.\n<\/p>\n<p>The son of the tenant &#8211; Sri Rishi Kumar Govil also filed his affidavit<br \/>\nstating therein that his father was a medical practitioner and he was<br \/>\ncarrying on the business as optician from the disputed shop. In another<br \/>\naffidavit, the appellant stated that he was running the disputed shop and<br \/>\nthat he had no other source of livelihood and in case he was evicted from<br \/>\nthe shop, he would have to suffer greater hardship than the landlady. The<br \/>\nappellant also filed an affidavit of one Sri Narendra Kumar Upadhyay in his<br \/>\nsupport who stated that the tenant was in medical profession and running<br \/>\nhis business whereas from the disputed shop his son was carrying on the<br \/>\nbusiness as optician.\n<\/p>\n<p>The prescribed authority vide judgment and order dated 08.05.1986 allowed<br \/>\nthe release application of the landlady and directed for eviction of the<br \/>\ntenant &#8211; appellant.  However, in appeal, the order was upset.\n<\/p>\n<p>Against the order in appeal, aforesaid, the landlady preferred Civil Misc.<br \/>\nWrit No. 9858 of 1998 before the Allahabad High Court, which was disposed<br \/>\nof vide judgment and order dated 13.10.1998 and the matter was remanded to<br \/>\nthe appellate court with the observation that the appellate court shall<br \/>\ndecide the appeal afresh on merits after taking into consideration the<br \/>\nmaterial subsequent events.\n<\/p>\n<p>During the pendency of the appeal, the appellant-tenant died and was<br \/>\nsubstituted by the legal heirs.\n<\/p>\n<p>On remand, the appellate authority reheard the appeal and decided the same<br \/>\nvide judgment and order dated 21.04.2001 holding that the landlady herself<br \/>\nhad offered an alternate shop to the tenant but the appellant  refused to<br \/>\ntake possession of the alternative shop offered by her with a view to<br \/>\nremain in possession over the disputed shop. Accordingly, he dismissed the<br \/>\nappeal and affirmed the judgment and decree passed by the prescribed<br \/>\nauthority declaring vacancy.\n<\/p>\n<p>Aggrieved by the above-mentioned orders of the prescribed Authority and the<br \/>\nAppellate Court, the appellant filed a writ petition.\n<\/p>\n<p>The High Court concluded that the conclusions of the Prescribed Authority<br \/>\nand affirmed by the Appellate Authority did not suffer from any infirmity<br \/>\nto warrant interference.\n<\/p>\n<p>In support of the appeal, learned counsel for the appellant submitted that<br \/>\nthe relevant factors as detailed in Rule 16 of the Rules have not been kept<br \/>\nin view. The Prescribed Authority, the Appellate Authority and the High<br \/>\nCourt failed to consider the fact that even partial eviction would suffice.<br \/>\nIt is submitted that in terms of Rule 16 so far as the commercial premises<br \/>\nare concerned the parameters have to be different.\n<\/p>\n<p>Learned counsel for the respondent no.1 supported the judgment of the High<br \/>\nCourt.\n<\/p>\n<p>It is stated by learned counsel for the respondents the premises in respect<br \/>\nof repair of guns have to be the separate premises. The appellant has 13<br \/>\nshops available and in this context it is submitted that the tenant-<br \/>\nappellant had got vacated a shop out of 13 shops situated at Khurja Bus<br \/>\nstand from one Sri Om Prakash in a rent control case. The tenant is also<br \/>\ncarrying on business in one of these 13 shops in the name and style of<br \/>\nGovil Optician. Therefore, the need of the landlady is more hard pressing<br \/>\nin comparison to the appellant-tenant. By way of reply, learned counsel for<br \/>\nthe appellant submitted that it is not a fact that there are 13 shops<br \/>\navailable, the number is much less.\n<\/p>\n<p>  Rule 16 on which reliance has been placed by both the sides reads as<br \/>\n  follows:\n<\/p>\n<p>\t&#8220;16. Application for release on the ground of personal requirement:<br \/>\n\tIn considering the requirements of personal occupation for purposes<br \/>\n\tof residence by the landlord or any member of his family, the<br \/>\n\tprescribed authority shall, also have regard to such factors as the<br \/>\n\tfollowing-\n<\/p>\n<p>(a)\twhere the landlord already has adequate and reasonably suitable<br \/>\naccommodation having regard to the number of members of his family and<br \/>\ntheir respective ages and  his means and social status, his claim for<br \/>\nadditional requirements shall be construed strictly;\n<\/p>\n<p>(b)\twhere a residential building was let out at a time when the sons of<br \/>\nthe landlord were minors and subsequently one or more of them has married,<br \/>\nthe additional requirement of accommodation for the landlord&#8217;s sons shall<br \/>\nbe given due consideration;\n<\/p>\n<p>(c)\twhere the tenant has, apart from the building under tenancy other<br \/>\nadequate accommodation, whether owned by him or held as tenant of any<br \/>\npublic premises, having regard to the number of members of his family and<br \/>\ntheir respective ages and his social status, the landlord&#8217;s claim for<br \/>\nadditional requirements shall be construed liberally;\n<\/p>\n<p>(d)\twhere the tenant&#8217;s needs would be adequately met by leaving with<br \/>\nhim a part of the building under tenancy and the landlord&#8217;s needs would be<br \/>\nserved by releasing the other part, the prescribed authority shall release<br \/>\nonly the latter part of the building;\n<\/p>\n<p>(e)\twhere there are a number of tenants separately occupying a block of<br \/>\ntenements and the landlord desires their eviction on ground of his personal<br \/>\nneed the prescribed authority shall, consider whether suitable alternative<br \/>\naccommodation is likely to be available to such tenants;\n<\/p>\n<p>(f)\twhere the landlord offers to the tenant alternative accommodation<br \/>\nreasonably suitable to the needs of the tenant and his family the<br \/>\nlandlord&#8217;s claim for release of the building under tenancy shall be<br \/>\nconstrued liberally;\n<\/p>\n<p>(g)\twhere the landlord was engaged in any employment in the same city,<br \/>\nmunicipality, notified area or town area in which the building is situate<br \/>\nand was in occupation of other accommodation by reason of such employment<br \/>\nor where the landlord is the wife or minor son or unmarried daughter of a<br \/>\nperson who was engaged in any profession, trade,  calling or employment<br \/>\naway from the city, municipality, notified area or town area within which<br \/>\nthe building is situate and was living with such person, and by reason of<br \/>\nthe cessation of such engagement, the landlord needs the building for<br \/>\noccupation by himself for residential purposes, such need shall ordinarily<br \/>\nbe deemed sufficient.\n<\/p>\n<p>(2) While considering an application for release under (a) of sub-section<br \/>\n(1) of Section 21 in respect of a building let out for purposes of any<br \/>\nbusiness, the prescribed authority shall also have regard to such facts as<br \/>\nthe following:\n<\/p>\n<p>(a) the greater the period since when the tenant opposite party, or the<br \/>\noriginal tenant whose heir the opposite party is, has been carrying on his<br \/>\nbusiness in that building, the less the justification for allowing the<br \/>\napplication;\n<\/p>\n<p>(b) where the tenant has available with him suitable accommodation to which<br \/>\nhe can shift his business without substantial loss there shall be greater<br \/>\njustification for allowing the application;\n<\/p>\n<p>(c) the greater the existing business of the landlord&#8217;s own, apart from the<br \/>\nbusiness proposed to be set up in the leased premises, the less the<br \/>\njustification for allowing the application, and even if an application is<br \/>\nallowed in such a case, the prescribed authority may on the application of<br \/>\nthe tenant impose the condition where the landlord has available with him<br \/>\nother accommodation (whether subject to the Act or not) which is not<br \/>\nsuitable for his own proposed business but may serve the purpose of the<br \/>\ntenant, that the landlord shall let out that accommodation to the tenant on<br \/>\na fair rent to be fixed by the prescribed authority;\n<\/p>\n<p>(d)  where a son or unmarried or widowed or divorced or judicially<br \/>\nseparated daughter or daughter of a male lineal descendant of the landlord<br \/>\nhas, after the building was originally let out, completed his or her<br \/>\ntechnical education and is not employed in Government service, and wants to<br \/>\nengage in self-employment, his or  her need shall be given due<br \/>\nconsideration.\n<\/p>\n<p>(3) Where the tenant being servant of Government or of any local authority<br \/>\nor any public sector corporation does not contest the application, then a<br \/>\nreasonable opportunity of being heard shall be given to the District<br \/>\nMagistrate, who shall  have the right to oppose the application.&#8221;\n<\/p>\n<p>The parameters relating to Rule 16 of the Rules have been dealt with by<br \/>\nthis Court in <a href=\"\/doc\/237144\/\">Sushila v. IInd Addl. District Judge, Banda and Ors.,<\/a> [2003]<br \/>\n2 SC 28. In the said judgment it was inter-alia noted as follows:\n<\/p>\n<p>&#8220;10. A bare perusal of Rule 16 of the U.P. Urban Building (Regulation of<br \/>\nLetting, Rent and Eviction) Rules, 1972 makes it clear that the Rule only<br \/>\nprescribes certain factors which have also to be taken into account while<br \/>\nconsidering the application for eviction of a tenant on the ground of bona<br \/>\nfide need. Sub-rule (2) of Rule 16 quoted earlier relates to the cases of<br \/>\neviction from an accommodation for business use. Clause (a) of sub-rule (2)<br \/>\nprovides, greater the period of tenancy less the justification for allowing<br \/>\nthe application; whereas according to clause (b) in case the tenant has a<br \/>\nsuitable accommodation available to him to shift his business, greater the<br \/>\njustification to allow the application. Availability of another suitable<br \/>\naccommodation to the tenant, waters down the weight attached to the longer<br \/>\nperiod of tenancy as a factor to be considered as provided under clause (a)<br \/>\nof sub-rule (2) of Rule 16. Yet another factor which may in some cases be<br \/>\nrelevant under clause (c) is where the existing business of the landlord is<br \/>\nquite huge and extensive leaving aside the proposed business to be set up,<br \/>\nthere would be lesser justification to allow the application. The idea<br \/>\nbehind Sub-clause (c) is apparent i.e. where the landlord runs a huge<br \/>\nbusiness eviction may not be resorted to for expansion or diversification<br \/>\nof the business by uprooting a tenant having a small business for a very<br \/>\nlong period of time. In such a situation if eviction is ordered it is<br \/>\ndefinitely bound to cause greater hardship to the tenant.\n<\/p>\n<p>11. In the case in hand we find that even though the period of tenancy of<br \/>\nthe respondent is no doubt long but availability of another shop to him<br \/>\nwhere he can very well shift his business as found by the Prescribed<br \/>\nAuthority, neutralises the factor of length of tenancy in the accommodation<br \/>\nin dispute. We further find that the landlady has no other shop where she<br \/>\ncan establish her son who is married and unemployed. There is nothing on<br \/>\nthe record to indicate that the business of father of Prem Prakash is so<br \/>\nhuge or that it is a very flourishing business so as to attract application<br \/>\nof Clause (c) of Rule 16(2). As observed earlier it is clear that length of<br \/>\nperiod of tenancy as provided under Clause (a) of Sub-rule 2 of Rule 16 of<br \/>\nthe Rules, 1972 is only one of the factors to be taken into account in<br \/>\ncontext with other facts and circumstance of the case. It cannot be a sole<br \/>\ncriterion or deciding factor to order or not the eviction of the tenant.<br \/>\nConsidering the facts in the light of Rule 16 pressed into service on<br \/>\nbehalf of the respondent, we find that according to the guidelines provided<br \/>\ntherein balance tilts in favour of the unemployed son of the landlady whose<br \/>\nneed is certainly bonafide and has also been so accepted by the respondent<br \/>\nbefore us.&#8221;\n<\/p>\n<p><a href=\"\/doc\/89832867\/\">In Ragavendra Kumar v. Firm Prem Machinary and Co., AIR<\/a> (2000) SC 534 it<br \/>\nwas held that it is the choice of the landlord  to choose the place for the<br \/>\nbusiness which is most suitable for him.  He has complete  freedom in the<br \/>\nmatter.  <a href=\"\/doc\/752303\/\">In Gaya Prasad v. Pradeep Shrivastava, AIR<\/a> (2001) SC 803 it was<br \/>\nheld that the need of the landlord is to be seen on the date of application<br \/>\nfor release. In Prativa Devi (Smt.) v. T.V. Krishnan, [1996] 5 SCC 353 it<br \/>\nwas held  that the landlord is the best Judge of his requirement and Courts<br \/>\nhave no concern to dictate the landlord as to how and in what manner he<br \/>\nshould live.  The bona fide personal need is a question of fact and should<br \/>\nnot be normally interfered with. The High Court noted that when the<br \/>\nPrescribed Authority passed the order son of the respondent-landlady was 20<br \/>\nyears old and the shop was sought to be released for the purpose of<br \/>\nsettling him in business. More than 20 years have elapsed and the son has<br \/>\nbecome more than 40 years of age and she has not been able to establish him<br \/>\nas she has still to get the possession of the shop and the litigation of<br \/>\nthe dispute is still subsisting. The licence for repairing fire arms can<br \/>\nonly be obtained when there is a vacant shop available and in the absence<br \/>\nof any vacant shop, licence cannot be obtained by him. Therefore, the High<br \/>\nCourt came to the conclusion concurring with that of the Prescribed<br \/>\nAuthority and Appellate Authority that the need of the landlady is bona<br \/>\nfide and genuine. Considering the factual findings recorded by the<br \/>\nPrescribed Authority, Appellate Authority and analysed by the High Court,<br \/>\nthere is no scope for any interference in this appeal which is accordingly<br \/>\ndismissed. However, considering the period for  which the premises in<br \/>\nquestion are in the occupation of the appellant time is granted till 31st<br \/>\nDecember, 2007 to vacate the premises subject to filing of an undertaking<br \/>\nbefore the Prescribed Authority within a period of 2 weeks to deliver the<br \/>\nvacant possession on or before the stipulated date.  There will be no order<br \/>\nas to costs.<\/p>\n","protected":false},"excerpt":{"rendered":"<p>Supreme Court of India Rishi Kumar Govil vs Maqsoodan And Ors on 28 March, 2007 Author: D A Pasayat Bench: Dr. Arijit Pasayat, Lokeshwar Singh Panta CASE NO.: Appeal (civil) 1601 of 2007 PETITIONER: Rishi Kumar Govil RESPONDENT: Maqsoodan and Ors. DATE OF JUDGMENT: 28\/03\/2007 BENCH: DR. ARIJIT PASAYAT &amp; LOKESHWAR SINGH PANTA JUDGMENT: JUDGMENT [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-96187","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v27.3 - https:\/\/yoast.com\/product\/yoast-seo-wordpress\/ -->\n<title>Rishi Kumar Govil vs Maqsoodan And Ors on 28 March, 2007 - Free Judgements of Supreme Court &amp; High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/rishi-kumar-govil-vs-maqsoodan-and-ors-on-28-march-2007-2\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Rishi Kumar Govil vs Maqsoodan And Ors on 28 March, 2007 - Free Judgements of Supreme Court &amp; 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