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2009 DIGILAW 3675 (ALL)

Waqar Alam v. Additional District Judge

2009-12-07

SHISHIR KUMAR

body2009
JUDGMENT HON. SHISHIR KUMAR, J. Heard Sri S.M. Fazal assisted by Sri P.R. Ganguly, learned counsel for the petitioner and Sri Arun Kumar Singh I, learned counsel appearing for the respondents. 2. This writ petition has been filed for quashing the order dated 20.11.2009 passed by respondent no.1, Annexure-4 to the writ petition by which the appeal filed by the respondent-landlord has been allowed. The respondent being landlord filed an application under Section 21 (1) (a) of Act No. XIII of 1972 for release of the shop in question on the ground to establish his son. The Prescribed Authority after considering the need of the parties was pleased to dismiss the application holding therein that the need of the landlord is not genuine and bonafide and as other shops are also available which are on rent and no efforts have been made by the respondent to get it vacated and during this period one of the sons has opened the shop of readymade garments, therefore, the need of landlord -respondent is not bonafide and genuine but the appellate court vide its order dated 20.11.2009 was pleased to allow the appeal filed on behalf of the respondent-landlord holding therein that every adult member of the family has a right to be settled down in the independent business and further it has been held that the need of the landlord is more genuine and bonafide. The tenant aggrieved by the aforesaid order has filed the present writ petition. 3. Learned counsel for the petitioner submits that the Prescribed Authority has recorded a finding that as one of the son has already established a business of readymade garments and in the application filed under Section 21 (1) (a) of the Act, in para 5 it has been stated that he wants to establish his sons in a business, therefore, now the need of the landlord is not genuine and bonafide. Further the Prescribed Authority has recorded a finding that the petitioner is doing the business in the shop in question for 19 years and he has earned a goodwill. Therefore, in case the shop in question is released, the tenant will suffer more hardship than the respondent. Further it has been submitted that the Prescribed Authority after considering the evidence on record has recorded a finding that the shop is being released only for the purpose of construction of the stair case. Therefore, in case the shop in question is released, the tenant will suffer more hardship than the respondent. Further it has been submitted that the Prescribed Authority after considering the evidence on record has recorded a finding that the shop is being released only for the purpose of construction of the stair case. In such a situation, the Prescribed Authority has rejected the application but the appellate authority without considering this fact has allowed the application. 4. On the other hand Sri Arun Kumar Singh, learned counsel for the respondent submits that it is not the case of the tenant that during the pendency of the proceeding any shop which was on rent, has been got vacated and it has been rented out by the landlord. Further the court or the tenant cannot suggest that he can do the business on the nearby shop after taking it on rent. Further submission has been made that the appellate authority has recorded a finding of fact that the tenant, during this period, has not made any effort to make any alternative accommodation. 5. I have considered the submissions made on behalf of the parties and have perused the record. The appellate court after due consideration of the claim of the parties has recorded a finding that tenant cannot suggest the landlord to get some accommodation somewhere else for the purpose of establishing the business of his son. Further a finding has been recorded that no effort has been made by the petitioner during the period of the pendency of the proceeding to get an alternative accommodation. Further in my opinion every member of the family has got a right to settle independent business and need of the landlord cannot be rejected on the ground that the same is not bonafide. It is not the case of the petitioner that during pendency of the proceeding any shop on rent was vacated by the tenant and it has been let out to other tenant. 6. In view of the aforesaid fact, in my opinion, the finding recorded by the court below is a finding of fact based on evidence and need no interference by this Court while exercising the powers under Article 226 of the Constitution of India. The writ petition is devoid of merit and is hereby dismissed. No order is passed as to costs. 7. The writ petition is devoid of merit and is hereby dismissed. No order is passed as to costs. 7. At last the learned counsel appearing for the petitioner submits that some reasonable time may be granted to the petitioner to vacate the said premises. Accordingly, six months' time is granted to the petitioner to vacate premises in dispute subject to condition that the petitioner will submit an affidavit in the shape of undertaking within three weeks from today before the Prescribed Authority specifically indicating therein that he will handover peaceful possession of said accommodation without inducting any third person within a period of six months and will pay the arrears of rent as well as current rent, then and in that condition, the Prescribed Authority will grant six months time to the petitioner to vacate the said premises.