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2005 DIGILAW 218 (ALL)

Ramesh Chandra Gupta alias Ramesh Gupta v. Laxmi Narain

2005-02-04

ANJANI KUMAR

body2005
ANJANI KUMAR, J. ( 1 ) BY means of present writ petition under Article 226 of the Constitution of India, the petitioner-tenant challenges the order dated 5th April, 2003, passed by the appellate authority under the provisions of the U. P. Act No. 13 of 1972, whereby the appeal filed by the respondent-landlord against the order dated 21st December, 1998, passed by the prescribed authority was allowed by the appellate authority and the accommodation in question was released in favour of the respondent-landlord. ( 2 ) THE facts leading to the filing of present writ petition are that the landlord filed an application under Section 21 (1) (a) of the U. P. Act No. 13 of 1972, hereinafter referred to as the Act, for the release of the accommodation, which is a shop, in favour of the landlord, who wants to settle his son in the business. It is thus stated by the landlord that the accommodation was bona fide required. On the question of comparative hardship, it is stated by the landlord in the application under Section 21 (1) (a) of the Act that the petitioner-tenant keeps the shop in question closed and secondly he has another rented shop in front of Dr. Raj and thirdly the petitioner-tenant can occupy the shop on rent in Prem Tiwari Market, Friend Market and Bharat Dubey Market, situated in front of Navbharat hotel. With these allegations, the application under Section 21 (1) (a) of the Act was filed, which was contested by the petitioner-tenant. The petitioner-tenant has also taken Up a plea that the shop in question was jointly owned by Laxmi Narain and Babu Lal and there is no evidence on record that there is any family settlement as alleged by the landlord, wherein the shop in question has come in the share of Laxmi Narain and since Babu Lal has not been impleaded in the present proceeding, therefore the application under Section 21 (1) (a) of the Act is not maintainable. There is no evidence on record that the tenant has any other shop in front of Dr. Raj and in fact the tenant has only the shop in question from where he is running his business, which is well established. There is no evidence on record that the tenant has any other shop in front of Dr. Raj and in fact the tenant has only the shop in question from where he is running his business, which is well established. On the question of alternative accommodation, it has been asserted by the petitioner-tenant that no shop is vacant in Bharat Dubey Market and in respect of the shops of Prem Tiwari Market, since the constructions in Prem Tiwari Market are in dispute therefore it should not be advisable to go for the shop in the aforesaid Prem Tiwari Market, thus, there is no bona fide need of the landlord and the tilt of the comparative hardship is also not in favour of the landlord. ( 3 ) BEFORE the prescribed authority the point that Babu Lal has not been impleaded as applicant in the application found favour and the application filed by the respondent-landlord under Section 21 (1) (a) of the Act has been held to be not maintainable. ( 4 ) AGGRIEVED thereby, the respondent-landlord preferred an appeal before the appellate authority and the appellate authority vide order impugned in the present writ petition dated 5th April, 2003, allowed the appeal filed by the landlord and directed the release of the shop in question, situated in premises No. 397a, Sadar Bazar, Jhansi. The appellate authority formulated the following three questions for decision between the parties : " (1) Whether there is any legal impediment in entertaining the release application on the ground that the co-owner/his heirs have not joined in the application? (2) Whether the landlord has bona fide and genuine need of the accommodation in question? (3) What is the tilt of the comparative hardship?" ( 5 ) COMING to the first question, the appellate authority discussed the evidence on record and found that since the tenant is paying the rent to the respondent-landlord, the landlord has discharged his burden of establishing that there had been a partition and the application cannot be rejected on the ground that Babu Lal or his heirs had not joined the application. The appellate authority also found that a similar application was filed by Babu Lal against his tenant wherein similar objections were pleaded and it was found that there had been a partition between Babu lal and Laxmi Narain. The appellate authority also found that a similar application was filed by Babu Lal against his tenant wherein similar objections were pleaded and it was found that there had been a partition between Babu lal and Laxmi Narain. The appellate authority has considered the fact that in the application filed by Babu Lal of course Laxmi Narain was not impleaded, but the factum of partition in the present case has been established by the landlord, coupled with the fact that the tenant had been paying rent to the Laxmi Narain alone and so far as the question of printed rent receipts are concerned, the appellate authority has dealt with the question that these are the old printed receipts when both the co-owners were joined and all the receipts that have been brought on record by the tenant were signed by Laxmi Narain alone. In this view of the matter, the appellate authority recorded a finding that the appeal filed by Laxmi Narain alone cannot, be said to be either not maintainable or that the Laxmi Narain is not the sole landlord of the shop in question. ( 6 ) ON the question of bona fide requirement of the accommodation in question, the appellate authority considered the relevant case law of this Court and arrived at the finding that the application for settling his son is a bona fide requirement, thus, the appellate authority arrived at the conclusion that the need of the landlord is bona fide and on the question of comparative hardship, the appellate authority found that the tilt of the comparative hardship is also in favour of the landlord and the landlord will be failing in his duty if he will not take any steps for settling down his son. Thus, the appellate authority set aside the order passed by the prescribed authority and allowed the application filed by the landlord while allowing the appeal filed by the landlord. ( 7 ) LEARNED counsel appearing on behalf of the petitioner argued that the findings arrived at by the appellate authority on the question of maintainability of the application under Section 21 (1) (a)of the Act on behalf of Laxmi Narain alone and on the question of bona fide as well as comparative hardship suffer from the manifest error of law and are perverse findings. Nothing has been brought to the notice of this Court that these findings arrived at by the appellate authority either suffer from the manifest error of law or are perverse. Nothing has been brought to the notice of this Court that any of the evidence which is there on record has not been considered or that the view taken by the appellate authority is a view which no reasonable person can come. On the contrary, the finding on the question of maintainability of the application under Section 21 (1) (a) of the Act is supported by the decision of the Apex Court in AIR 1998 sc 1132 and also by the evidence which has been discussed by the appellate authority. It is settled view of this Court that the findings regarding bona fide is a finding of fact, which unless demonstrated to be perverse, need not be interfered with by this Court by sitting in appeal and re-appraise the evidence. This view finds support from the case in Ranjeet Singh v. Ravi prakash, 2004 (2) AWC 1721 (SC ). Thus, the view taken by the appellate authority cannot be said to be either perverse or are suffers from the manifest error of law. So far as the question of comparative hardship is concerned, the appellate authority has dealt with the respective case of the landlord and then recorded a finding after discussing the evidence on record that the tilt of the comparative hardship is also in favour of the landlord and therefore allowed the application by holding that the alternative accommodations are available to the tenant where he can shift his business. ( 8 ) IN view of what has been stated above, I do not find any error in the order impugned in the present writ petition, so as to warrant any interference by this Court in exercise of power under article 226 of the Constitution of India. This writ, petition therefore has no force and is accordingly dismissed. The interim order, if any, stands vacated. However, the parties shall bear their own costs. . .