2021 Supreme(All) 158

IN THE HIGH COURT OF ALLAHABAD
Vivek Kumar Birla, J.
Farukh @ Faruk Khan - Petitioner
Versus
Appellate Authority /Additional District Judge And 2 Others - Respondent
WRIT -A No. -15008 of 2020
Decided On : 03-03-2021

Point of law: landlord has got every right to expand his business and in case he requires additional space for it, the need cannot be said to be mala fide. In the present case, there are four doctors in the family of landlord and if the need is being shown for establishing the hospital/nursing home or for expansion of professions, the same cannot be said to be mala fide in nature. Insofar as the comparative hardship is concerned, it is not in dispute that the tenant-petitioner has never made any effort to search out any shop during the pendency of litigation and that the landlord offered him a shop which he denied to accept the same, therefore, the issue of comparative hardship has also been correctly decided in favour of the landlord.

Headnote:

U.P. Act 13 of 1972 – Section 21 – Release of Shop – Present petition has been filed challenging the impugned order passed by the respondent no. 1 and the impugned order passed by the respondent no. 2 – Landlord filed a release application for releasing the shop in question on the ground that the shop is needed for his doctor sons for clinic and for using the same as passage, which is required for connecting the landed property behind the shop on which the landlord wants to construct the hospital. – It was asserted that no passage is available for connecting the vacant plot to the main road and therefore, present shop, being the longest one, is required for personal need. – The same was contested by the petitioner-tenant herein on the ground that names of the doctor sons have not been disclosed in the plaint and in fact, the landlord is already having nursing home/hospital and therefore, the shop in question is not required. – It was further asserted that the present shop whereon the tenant is carrying on barber shop, is the only source of his income.

Finding of the court: – Held, It is clear that the landlord has got every right to expand his business and in case he requires additional space for it, the need cannot be said to be mala fide. – In the present case, there are four doctors in the family of landlord and if the need is being shown for establishing the hospital/nursing home or for expansion of professions, the same cannot be said to be mala fide in nature. – Insofar as the comparative hardship is concerned, it is not in dispute that the tenant-petitioner has never made any effort to search out any shop during the pendency of litigation and that the landlord offered him a shop which he denied to accept the same, therefore, the issue of comparative hardship has also been correctly decided in favour of the landlord. – Court is not inclined to interfere in the impugned orders. – Court find that the said requirement is a statutory requirement as per the building regulations and cannot be waived and, therefore, prima facie, need is genuine and bona fide in nature, therefore, simply because of availability of the side passage, such need, by itself, cannot be said to be mala fide need of the landlord. – Insofar as the assertion of the learned counsel for the tenant that in fact, he has denied the allegations made in the affidavit as mentioned in paragraph 33 of the judgment of lower appellate court, suffice to note that the documents annexed with the supplementary affidavit indicates that although the tenant-petitioner has, in fact, filed reply to the affidavit filed by the landlord, however, in rebuttal no documentary evidence was filed to indicate that the map has not been filed before the development authority in the year 2014 itself and the same is pending consideration or that the requirement of building laws are not mandatory in nature. – During course of argument, reference was made to the requirement of Khurja Master Plan that for passing map for such hospital it should be directly connected with a 12 meter wide road. – The same could not be denied by the learned counsel for the tenant-petitioner. – It could also not be denied that the landlord himself is a ayurvedic doctor and his two sons are allopathic doctors and his daughter-in-law is also allopathic doctor and that they are sitting in ayurvedic clinic of the landlord, also could not be dislodged by the tenant. – Thus, their bona fide need is established.

Result: – Petition Dismissed