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2012 DIGILAW 1163 (ALL)

Panna Lal Sonkar v. Swami Nath Singh

2012-05-14

SHASHI KANT GUPTA

body2012
Shashi Kant Gupta, J.— 1. An application under Section 21 of U.P. Act No.13 (in short "Act") was filed by the respondent for the release of the disputed premises on the ground of bonafide and genuine need to establish his two educated unemployed sons in business. After exchange of pleadings and evidence, the Prescribed Authority allowed the said application filed under Section 21 of the Act by order dated 28.7.2011. Being aggrieved and dissatisfied with the said order, the petitioner filed an appeal under Section 22 of the Act which was registered as P. A. Case No. 95 of 2011 and the same was dismissed by order dated 11.10.2011. Hence the present writ petition. 2. Learned counsel for the petitioner has submitted that the findings recorded by the court below on the question of bonafide need and comparative hardship is based on a complete misreading of the case and misconception of the legal position relevant to the matter, and has not considered the evidence available on record in right perspective. Learned counsel for the petitioner further submitted that the respondent-landlord has got three shops in his possession which are sufficient to establish his sons in business and satisfy their needs. It was further submitted that the Respondent landlord is doing business along with his sons in two shops while the third shop is lying vacant. 3. Per contra, learned counsel for the respondent-landlord has supported the impugned orders passed by the courts below and has submitted that the courts below have recorded a categorical finding of fact holding the need of the landlord to be genuine and bonafide, and also found the comparative hardship in favour of the landlord. He further referred to the Amin Report in support of his contention. 4. Heard the learned counsel for the parties and perused the record. 5. A perusal of the record shows that the application under Section 21 of the Act for release of the disputed premises was filed by the respondent-landlord for establishing his two educated unemployed sons namely Ajay and Sanjay in business, who did not have any independent business. The Amin Report further shows that there are three shops in the disputed building. Out of the three shops disputed shop is occupied by the petitioner and the other two by the landlord. The Amin Report further shows that there are three shops in the disputed building. Out of the three shops disputed shop is occupied by the petitioner and the other two by the landlord. One of which having two shutters is used by him for business purpose and the smaller one for storing goods. The respondent has two educated and unemployed sons. If the small shop is utilized by one of his son for his independent business still the respondent landlord would require one more shop to engage his second son. Every adult member of the family has a right to carry on business of his/her own choice. The sons of the respondent landlord cannot be denied of this right. There is nothing on record to show that the sons of the respondent are carrying on any independent business. 6. Both the courts below after perusing the pleadings and evidence on record held that the need of the landlord is bonafide and genuine and the comparative hardship also tills in favour of the landlord. It has also been held that during the pendency of the release application, the petitioner did not make any effort to search out any other alternative accommodation. 7. Both the courts below have recorded the findings of fact holding the need of the petitioner to be bonafide and genuine and the said findings are based on the evidence available on record. Both the courts below have given cogent, convincing and satisfactory reason while passing the order in favour of the landlord. The finding recorded by the courts below are neither perverse nor based on any extraneous or irrelevant material. The court below has on meticulous evaluation of evidence and material available on the record, found the need of the landlord to be bonafide and genuine. This court under Article 226 of the Constitution of India can not substitute its own opinion to the opinion of the courts below unless it is found that the conclusion drawn by the lower court is erroneous being contrary to the mandatory provisions of law. 8. No other point has been pressed by the learned counsel for the petitioner. 9. I do not find any illegality or infirmity in the impugned orders. In the result this petition is dismissed. 10. 8. No other point has been pressed by the learned counsel for the petitioner. 9. I do not find any illegality or infirmity in the impugned orders. In the result this petition is dismissed. 10. 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. 11. In the event of default of any of the aforesaid conditions, the landlord will be at liberty to proceed to evict the petitioner in accordance with law. _