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Allahabad High Court · body

2012 DIGILAW 1181 (ALL)

Chhotan Lal Saini v. Kuldeep Batla

2012-05-15

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-landlord for the release of the disputed premises on the ground of bonafide and genuine need. The Prescribed Authority allowed the said application filed under Section 21 of the Act by order dated 7.10.2011. 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. Appeal No. 28 of 2011 and the same was dismissed by order dated 5.5.2012. 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 is a member of joint family having a large number of properties and carrying on a number of businesses. He further submitted that the need of the respondent is neither bonafide nor genuine and comparative hardship tilts in favour of the petitioner. 3. Heard the learned counsel for the petitioner and perused the record. 4. A perusal of the record shows that both the courts below after perusing the pleadings and evidence on record held that the need of the respondent-landlord is bonafide and genuine and the comparative hardship also tills in favour of the landlord. It has come on record that the landlord is unemployed and married having two children. Courts below have recorded a finding that the landlord, in order to support his family, took one shop temporarily on rent at Bazar, Chilkana, Sultanpur at the rate of Rs. 500/- per month for carrying on the business of sale and purchase of Bidi, since the petitioner was under distress and had no source of livelihood. The said finding is based on record. 5. The apex court in the case of Jamila Khatoon and others Vs. 500/- per month for carrying on the business of sale and purchase of Bidi, since the petitioner was under distress and had no source of livelihood. The said finding is based on record. 5. The apex court in the case of Jamila Khatoon and others Vs. Additional District Judge, Saharanpur and others, 2004 (54) ALR 62 had held that during the pendency of the application for release of the shop if any person starts some additional business for earning his livelihood, it cannot be said that his need set up for running the desired business from the said shop has come to an end. 6. Both the courts below have held that the landlord is not living in the joint family and even in the written statement it has not been averred by the petitioner that the landlord is living in the joint family. It has been held by the court below that the landlord does not have any other premises in his possession for carrying on his independent business except the disputed shop. 7. Both the courts below have recorded the findings of fact holding the need of the petitioner to be bonafide and genuine, and comparative hardship was found in favour of the landlord. It has also been held that the petitioner did not make any honest and genuine efforts to search out any alternative accommodation. 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, three 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 three 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. _