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2010 DIGILAW 3684 (ALL)

Tara Chandra Gupta v. Dinesh Chandra Gupta

2010-12-09

SHASHI KANT GUPTA

body2010
JUDGMENT : Shashi Kant Gupta, J. – This writ petition has been filed by the petitioner against the concurrent judgment and orders dated 22.9.2008 and 25.10.2010 passed by Prescribed Authority and Additional District Judge respectively, whereby the application of the respondent filed under Section 21 has been allowed. 2. The brief facts of the case are as follows:- (i) An application under Section 21 was filed by the landlord-opposite party on the ground that his son Rupesh Kumar Gupta aged about 26 years has passed B.Sc. is of marriageable age and is unemployed and is sitting idle; applicant was in the service of U.P. State Electricity Board Firozabad and got retired in May, 1998 and is also sitting idle without any work; besides Rupesh Kumar Gupta, the applicant has got four daughters out of whom three are still unmarried, as such he has heavy responsibility of his family including the future responsibility for arranging the money for the marriage of his daughters and to meet the expenses of the studies of his children; he wants to settle his son and himself in the business of glass bangles and for the purpose house in dispute is required. (ii) The petitioner is a tenant in the disputed shop and is carrying on the business of glass bangles. The petitioner has filed his written statement and refuted the allegations made by the landlord. After exchange of pleadings and affidavits, the application filed under Section 21 of the Act was allowed by the Prescribed Authority by order dated 20.9.2008. (iii) Aggrieved and dis-satisfied with the said order dated 20.9.2008 the petitioner has filed an appeal and the said appeal has also been dismissed vide order dated 25.10.2010 by the Appellate Authority, hence the present writ petition. 3. Learned counsel for the petitioner has submitted that the need of the respondent is neither bonafide nor genuine and the comparative hardship leans in favour of the petitioner. He further submits that the respondent's son is doing the business of P.C.O. in the adjoining house and is also supplying electricity by using Generator to other shopkeepers as such the respondent does not have any bonafide need for setting up his son in any other business. He further submits that the landlord has retired from the Government department and getting pension which is enough to satisfy his need. 4. He further submits that the landlord has retired from the Government department and getting pension which is enough to satisfy his need. 4. Learned counsel for the petitioner has further submitted that the petitioner has acquired the goodwill of his business from the said shop and have no other alternative accommodation for doing the business of glass bangles. 5. Per contra learned counsel for the landlord has submitted that both the courts below have recorded categorical findings in favour of the petitioner and held the need of the petitioner to be bonafide and genuine and also comparative hardship in favour of the petitioner. Learned counsel for the respondent/landlord further submits that the son of the landlord/respondent is neither doing any business of P.C.O. nor have any generator, as such the need of the landlord/respondent is genuine and bonafide. 6. Heard learned counsel for the parties and perused the record. 7. It is not disputed that the petitioner has retired from the Government job and at present is sitting idle without any work. It is also not disputed that the petitioner has a large family i.e. wife, one adult son and four daughters out of which one daughter is got married. 8. The main contention raised by the petitioner is that Rupesh Kumar Gupta, the son of the petitioner is already employed, as he is running the P.C.O. as well as supplying electricity through Generator to the shop keepers of the locality. Both the courts below have disbelieved the version of the petitioner. The petitioner has not adduced any cogent evidence to prove that the son of the petitioner is carrying on any business. Earlier the daughter of the petitioner Payal Gupta was running the P.C.O. but now the license of P.C.O. has been cancelled and his daughter has also got married. The court has also held that there is absolutely no evidence on record to show that the son of the petitioner was engaged in the business of supplying electricity through Generator and earning his livelihood. 9. The application under Section 21 was filed in the year 2003 and more than seven years have passed and there is nothing on record to show that the petitioner made any efforts to search out any alternative accommodation for carrying on the business. 9. The application under Section 21 was filed in the year 2003 and more than seven years have passed and there is nothing on record to show that the petitioner made any efforts to search out any alternative accommodation for carrying on the business. More over it has also come on record that he has got his own house and the contention of learned counsel for the landlord is that he can very well shift his business to his own house which is located in the midst of the city. 10. The courts below have recorded concurrent findings of facts that needs set up by the landlord to establish his son in the disputed shop is bonafide and genuine and the comparative hardship tilts in his favour. The petitioner has not adduced any cogent evidence to show that he will suffer greater hardship if he is evicted. The findings recorded by the courts below is based on the evidence and the material available on record, as such, no adverse inference can be drawn by this Court while exercising its jurisdiction under Article 226 of the Constitution of India. 11. Lastly, it has been urged by learned counsel for the petitioner that some reasonable time may be given to vacate the premises in dispute. Learned counsel for the landlord has not raised any objection to it. 12. I do not find any illegality or infirmity in the order impugned in the writ petition. The writ petition is, accordingly, dismissed. 13. As urged by the learned counsel for the petitioner, six months' time is granted to the petitioner to vacate the premises in dispute provided the petitioner gives his undertaking in the form of an affidavit before the prescribed authority within one month from today specifically stating therein that he will handover the peaceful possession of the said accommodation to the landlord without inducting any third person within a period of six months from today and will pay the entire arrears of rent including the current rent payable upto the date of delivery of the possession as indicated herein above. 14. In the event of default of any of the aforesaid conditions, the landlord opposite party will be at liberty to proceed to evict the petitioners in accordance with law. Petition Allowed.