Research › Search › Judgment

Allahabad High Court · body

2009 DIGILAW 3862 (ALL)

B. P. Bakshi v. Dinesh puri

2009-12-23

SHISHIR KUMAR

body2009
JUDGMENT HON. SHISHIR KUMAR, J. Heard learned counsel for the petitioner and the learned counsel for the respondent. 2. This writ petition has been filed by the landlord against an order dated 5.4.2007, Annexure-1 to the writ petition by which the appeal filed by respondent-tenant has been allowed. The petitioner being a landlord filed an application under Section 21 (1) (a) of Act No. XIII of 1972 against the respondent for release of the accommodation which has been stated to be a garage for the purpose of keeping his car after the retirement from the military service. It has been submitted that the respondent is an employee of the telephone department and the accommodation in dispute, which is a garage in Bungalow No. 87, Shastri Market Cantt. , Jhansi, was given to him on rent of Rs.60/- per month, before his retirement. After retirement the petitioner is living in the said accommodation and, therefore, the said accommodation is required for the purpose of keeping his car. 3. In the written statement filed by the respondent-tenant an averment has been made that it is a out-house consisting of two rooms and it is not a garage. The Prescribed Authority after considering the claim of the parties has recorded a finding that the need of the landlord is more genuine and bona fide and the respondent being an employee of the telephone department can get an official accommodation easily in the same city, therefore, there will be no hardship to the tenant. The application was allowed on 27.9.2006. The tenant-respondent aggrieved by the order of release filed an appeal. The appellate court allowed the appeal only on the ground that it is a bungalow consisting of 4 acres open land and there are other rooms in the bungalow and only husband and wife is residing, therefore, they can construct a separate garage for the purpose of keeping the car and in such a situation there will be no hardship to the petitioner and the respondent-tenant being a Class-IV employee will suffer more hardship than the petitioner. 4. 4. Learned counsel for the petitioner has submitted before this Court that it is now settled in view of catena of decisions that the authority below, while considering the need of the parties and hardship, cannot suggest that the landlord can construct the accommodation for his need and on that ground the application for release of the accommodation cannot be rejected. But the appellate authority only on the ground that as there is sufficient accommodation available to the petitioner consisting of 4 acres open land in the bungalow in dispute, therefore, he can construct a garage. Further submission has been made that in case of denial by the respondent-tenant regarding existence of the garage, it was burden upon the tenant to prove it that the accommodation for which the release application has been filed, is not a garage and it is a out-house. The court only on the basis of pleading by the tenant in a written statement cannot record a finding to that effect. 5. On the other hand, learned counsel for the respondent submits that a specific averment was made in the written statement that it is a out-house and it is not a garage but the landlord petitioner is not able to prove before the court below, in such a situation the appellate authority has recorded a specific finding that it is a out-house and there are availability of the accommodation as well as the garage can be constructed by the landlord. The findings recorded by the appellate authority is on the basis of the relevant record as well as the comparative hardship that the respondent tenant is not having any alternative accommodation and the petitioner being a landlord is having sufficient accommodation for the said purpose. Therefore, the need of the tenant is more genuine and bona fide . In such a situation, the appellate authority's finding cannot be said to be illegal by this Court . 6. Reliance has been placed upon a judgment of this Court reported in 2006 (1) ARC 397 in the case of Santosh Kumar Sharma Vs. VI Additional District Judge, Sahranpur and others and reliance has been placed on paragraph 7 of the said judgment which is being quoted below: "7. It is correct that landlord has to be allowed some discretion for choosing the premise. VI Additional District Judge, Sahranpur and others and reliance has been placed on paragraph 7 of the said judgment which is being quoted below: "7. It is correct that landlord has to be allowed some discretion for choosing the premise. However, it does not mean that even if equally suitable or even more suitable accommodation is available to the landlord, still he can choose his tenant for eviction merely by saying that he has got complete choice and he desires a particular shop in possession of the tenant for satisfying his need. If it is proved that the accommodation available in a vacant state to the landlord is not suitable for the purpose for which release is sought, then of course, availability of the said accommodation cannot be taken to be a ground for rejection of the release application. 7. I have considered the submissions made on behalf of the parties and have perused the record. In my opinion, as the application is filed for the purpose of release of the accommodation by the landlord for keeping his car in the garage in which the tenant is living, as the tenant denied the existence of that garage, burden shifted upon him to prove that the property which is being occupied by the tenant is not a garage and it is a out-house consisting of two rooms as alleged. The burden has not been discharged by the tenant. It has only been said in the written statement that it is not a garage. Only on the basis of the pleadings in the written statement, in my opinion, the appellate authority has got no jurisdiction to record a finding. If there was any doubt in the mind of the appellate authority, an inspection should have been made by himself or on the basis of the application made by the respondent-tenant. It has not been done therefore, in my opinion, such finding cannot be recorded by the appellate court. As regards the finding recorded by the appellate authority giving a suggestion to landlord to construct a garage, it is now well settled in the catena of decisions of this Court that it is a total choice of the landlord to have the accommodation released of his choice. Tenant or anybody cannot suggest otherwise. As regards the finding recorded by the appellate authority giving a suggestion to landlord to construct a garage, it is now well settled in the catena of decisions of this Court that it is a total choice of the landlord to have the accommodation released of his choice. Tenant or anybody cannot suggest otherwise. Further the appellate authority has got no jurisdiction to suggest the landlord to construct a garage, as there is sufficient accommodation available. The Prescribed Authority has considered all the issues and has come to the conclusion on the basis of the relevant record that the need of the landlord is more genuine and bona fide but the appellate authority without taking into consideration all these facts has allowed the appeal. Further the case cited by the learned counsel for the respondent is distinguishable in the sense that in the said judgment it has been held that there are some better discretion for choosing the premises by the landlord. In that case this finding has been recorded by the court in the circumstances that if there was any other accommodation available to the landlord in a vacant state and that is not suitable for the purpose for which the release is sought, then of course availability of the said accommodation cannot be taken a ground for rejection of the release application. In my opinion, this judgment does not help the respondent. 8. In view of the aforesaid fact and circumstances, I find that the judgment and order passed by the appellate authority cannot be sustained in law and it is hereby quashed. 9. The writ petition is allowed and the judgment and order passed by the Prescribed Authority is hereby confirmed. 10. At last the learned counsel appearing for the respondent submits that some reasonable time may be granted to the respondent-tenant to vacate the said premises. 9. The writ petition is allowed and the judgment and order passed by the Prescribed Authority is hereby confirmed. 10. At last the learned counsel appearing for the respondent submits that some reasonable time may be granted to the respondent-tenant to vacate the said premises. Accordingly, six months' time is granted to the respondent to vacate premises in dispute subject to condition that the respondent 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 respondent to vacate the said premises. 11. No order is passed as to costs.