PUNIT KOHLI Vs. VINOD KUMAR JAIN

JUDGEMENT

(1.) THIS is landlord's writ petition arising out of eviction/release proceedings initiated by him against tenant respondent No. 1 on the ground of bonafide need under section 21 of U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 in the form of P. A. Case No. 18 of 1992 on the file of Prescribed Authority, Bijnore. Property in dispute is a shop dimensions of which are 19 feet x 19 feet and the rent is Rs. 500/- per month. (An amount of Rs. 50/- per month is also paid by the tenant as water tax ). It was stated in the release application that landlord had failed in B. A. final examination in the year 1991 and he intended to establish the business of selling spare parts of machinery from the shop in dispute. Prescribed Authority/ist Additional Civil Judge (S. D.), Bijnore allowed the release application through order dated 22. 5. 1995. Landlord was directed to pay Rs. 7,500/- (15 months' rent) as compensation to the tenant. Against the said judgment and order tenant-respondent No. 1 filed Misc. Appeal No. 5 of 1995. 1st Additional District Judge, Bijnore through judgment and order dated 4. 9. 1995 allowed the appeal, set aside the judgment and order of the prescribed authority and dismissed the release application of the landlord. Through this writ petition landlord has challenged the said order of the Appellate Court. Prescribed authority had held that plaintiff had failed in B. A. /b. Sc. examination. Appellate Court held that landlord had appeared in the final year examination in the subsequent year also hence version of the landlord that he required the shop in dispute to do business as he had failed in graduation level examination was false. This view of the Appellate Court is utterly erroneous in law. If a person wants to do business then lit is wholly immaterial as to whether he has passed B. A. /b. Sc. or has faileld therein. Even after passing B. A. /b. Sc. examination a person can very well choose to do business. Probably the Lower Appellate Court was of the view that educated persons should not do business.

(2.) APPELLATE Court further held that a commercial complex belonging to father or mother of the landlord was available to the landlord and if he had been serious then he would have started the proposed business in one of the shops available in the complex. Ashwani Kumar one of the witnesses of the tenant gave an affidavit to the effect that the said complex was half constructed. Similar affidavit was given by the other witness Puneet Rastogi as well as tenant Vinod Kumar Jain. Amin also reported the same thing after inspection of the said complex. Even if some commercial accommodation is available to the father or mother of the landlord still it is no ground to reject the release application filed by the landlord in respect of his own shop. A son may use the property of his father or mother only as a licensee and not as owner. Moreover Amin reported that in the alleged complex only one shop was let out. It is also important to note that all the witnesses stated that the complex was incomplete. No one can be compelled to carry on the business in an incomplete building. Appellate Court further held that landlord's father was having agricultural land and as landlord was living alongwith his father hence he must be looking after the said agricultural land. The Supreme Court in Sushila v. A. D. J. ,2003 (9) AIC 156 (SC)=2003 (52) ALR 160 (SC)=air 2003 SC 780. and Rishi Kumar Govil v. Maqsoodan and others,2007 (67) ALR 774 (SC)=2007 (4) SCC 465. has held that no one can be compelled to participate in family business. Moreover having agricultural land is no ground to reject release application for a shop.

(3.) THE prescribed authority found that tenant had got several other commercial properties available to him and he was also doing cement business. Tenant admitted that he had taken a shop but his version was that he had taken it to settle his grand son. The prescribed authority also found that tenant's son was having a factory of garments in the industrial estate and that in front of Vardhman degree college Sahitya Bihar, Najibabad Road, Bijnore tenant had purchased one godown and four shops. It was also found that tenant had about 800 meters of land in which he had constructed a house.