Back
2016 Supreme(All) 3325
ALLAHABAD HIGH COURT
Sunita Agarwal, J.
Lalit Mohan Das Agrawal - Appellant
Versus
Additional District Judge and 2 Others - Respondent
Writ A No. 3695 of 2015
Decided On : 27-01-2016
For the Petitioner:- Girija Shankar Srivastava, Neerad Srivastava, Advocates.
For the Respondent:- Pramod K. Gupta, Advocate.
The main legal point established in the judgment is that a release application by one co-owner is maintainable, and the landlord's genuine need and comparative hardship are crucial factors in determining the outcome of the release application.
Headnote:
Release Application - Commercial Tenancy - U.P. Act No. 13 of 1972, Section 21(1)(a) - Summary of Acts and Sections: The court discussed the maintainability of the release application by one of the co-landlords, the bona fide need of the landlord, and the comparative hardship under Rule 16(2) of U.P. Act No. 13 of 1972. The court referred to the Full Bench decision in Gopal Dass v. 1st Additional District Judge, Varanasi and others, 1987 (1) ARC 281 (F.B.) and the decision of the Supreme Court in M/s. India Umbrella Manufacturing Co. v. Bhagabandei Agarwalla (Dead) by L.R.'s and others, AIR 2004 Supreme Court 1321.
Fact of the Case:
The petitioner challenged the release order passed by the appellate court and the order passed in the review petition, arguing that the co-landlord had expressed unwillingness to eject the tenant from the shop. The petitioner presented a detailed history of the tenancy and ownership of the disputed shop, including ongoing litigation between co-landlords.
Finding of the Court:
The court found that the release application was maintainable by one of the co-landlords, upheld the bona fide need of the landlord, and determined that the comparative hardship favored the landlord. The court also provided the tenant with one year to vacate the shop.
Issues: The issues revolved around the maintainability of the release application, the bona fide need of the landlord, and the comparative hardship between the landlord and the tenant.
Ratio Decidendi: The court held that the release application by one co-owner is maintainable, the landlord's need was genuine, and the comparative hardship favored the landlord. The court also emphasized that the withdrawal of consent by one co-owner after the filing of the release application does not affect its maintainability.
Final Decision: The writ petition was dismissed, and the tenant was provided with one year to vacate the shop, subject to filing an undertaking.
Sunita Agarwal, J. –
Heard Sri Girija Shankar Srivastava, learned counsel for the petitioner and Sri Pramod K. Gupta, learned counsel for the respondents.
2. By means of the present writ petition, the petitioner is challenging the order dated 30.9.2014 passed in Rent Appeal No. 20 of 2013 as also the order dated 9.12.2014 passed on the review application namely Misc. Review Petition No. 698 of 2014.
3. The brief facts relevant to decide the controversy in hand are that a release application under Section 21 (1)(a) was filed by Sri Ashok Kumar Gupta i.e. respondent no. 3 stating therein that he required the shop in question to start a business for his livelihood. It was contested by the petitioner on the ground of maintainability of the application as well as on merits.
4. The Prescribed Authority though found that the release application was maintainable at the instance of respondent no. 3, who is the co-landlord of the disputed shop, however, has rejected the need of the landlord on the ground that he has not been able to establish his bona fide requirement for the shop in question.
5. On comparative hardship also the findings are against the landlord. In appeal, the appellate court came to the conclusion that the need set up by the landlord in the release application is bona fide, genuine, and pressing.
6. On comparative hardship, it has recorded that the tenant got a house released in his favour on the plea that it was dilapidated and was required for the construction of a shop to carry on his business of Silver and Gold Ornaments, which he is carrying on in the disputed shop. It was found that as the landlord does not possess an alternative accommodation, he would suffer greater hardship, in case the release is refused.
7. On the ground of maintainability, the appellate court found that the applicant-landlord being co-landlord of the shop in question could maintain the release application for his need. There is no requirement to implead other co-landlords for release of a commercial premises. His need cannot be thrown away on the ground that other co-owners who have only a minor shares in the disputed property have not been impleaded.
8. A review petition was filed by the petitioner before the lower appellate court with the plea that the order passed by it suffers from error apparent on the face of the record inasmuch as the fact that the co-landlord namely Praduman Kumar had specifically expressed his unwillingness for release in favour of the applicant-landlord had gone unnoticed. Two affidavits of the co-landlord showing his unwillingness, namely 69-C and 89-C were filed by the tenant before the Court below which have not been totally ignored while rejecting the objections of the tenant on the maintainability of the release application. The review petition was partly allowed vide order dated 9.12.2014. While incorporating the fact of filing of two affidavits namely 69-C and 89-C by one of the co-landlords, the appellate court refused to review the release order on the ground that these two affidavits are not of help to the tenant as the rights of the co-landlord is yet to be adjudicated by the Competent Civil Court. The fact of filing these two affidavits will not alter the judgment as there are other grounds to maintain the order of release of the shop in question.
9. Challenging the release order passed by the appellate court and the order passed in the review petition; Sri Girija Shankar Srivastava learned counsel for the petitioner vehemently urged that the co-landlord had expressed his unwillingness to eject the tenant from the shop in question by filing affidavits before the Prescribed Authority on 31.1.2013. Both the Prescribed Authority as also the appellate court had erred in coming to the conclusion that the release can be maintained by the applicant co-landlord.
10. While elaborating this submissions, certain facts were placed by him which are narrated herein below: -
11. The tenancy of the shop in question comm
