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2012 DIGILAW 2537 (ALL)

Raj Kishore & Others v. Vth A. D. J. , & Others

2012-10-31

SUDHIR AGARWAL

body2012
Sudhir Agarwal, J.;— 1. Heard Mrs. Kamini Pandey, learned counsel for the petitioner, Sri R.M.Saggi, learned counsel for contesting respondent No.2 and perused the record. 2. The writ petition is directed against the order dated 18.11.2000 passed by respondent No.1 allowing respondent No.2-tenant's appeal and setting aside Prescribed Authority's order dated 19.12.1998 whereby Prescribed Authority had released shop in question in favour of petitioner-landlord finding his need genuine and bona fide and comparative hardship in favour of landlord. The Appellate Court has reversed both the findings by means of the impugned judgment and order dated 18.11.2000. 3. In order to revert findings of Prescribed Authority, the Appellate Court has observed that during pendency of release proceedings, petitioner-landlord Raj Kishore started a business in a rented shop at Qasba Ete and since he is running the said shop for the last eight years, it cannot be said that he is now not settled. The Appellate Court further held that another landlord namely Santosh Kumar, though is still unemployed but he can be settled and accommodated in the business of father or two brothers. 4. The release application was filed in 1991 and decided in 1998. Meaning thereby it took eight years in its disposal. The appeal was filed by tenant in 1999 and was decided in November, 2000 while this writ petition is pending for the last eleven years before this Court. If release proceedings remained pending before different authorities for two decades, it cannot be said that landlord should/would not seek some kind of alternative source of livelihood to sustain himself and also to find out source for mitigating routine expenses during pendency of the proceedings. In such a case, a subsequent event that landlord has taken rented shop cannot mitigate the factum of personal need of landlord for running a business in his own shop. The Appellate Court has totally misled itself in reversing the otherwise well discussed and well reasoned order of Prescribed Authority. 5. In effect, In the present case Appellate Court has proceeded to dictate the petitioner-landlord which is totally misconceived. In Prativa Devi Vs. T.V.Krishnan (1996) 5 SCC 353 , the Apex Court said that the landlord is the best judge of his residential requirement. He has a complete freedom in the matter. 5. In effect, In the present case Appellate Court has proceeded to dictate the petitioner-landlord which is totally misconceived. In Prativa Devi Vs. T.V.Krishnan (1996) 5 SCC 353 , the Apex Court said that the landlord is the best judge of his residential requirement. He has a complete freedom in the matter. It is no concern of the courts to dictate to the landlord how and in what manner he should live or to prescribe for him a residential standard of their own. Therein the Court considered the age of landlord and doubted his need on the ground that in such advanced age, he would be requiring somebody to take care and therefore should live with other family members instead of alone. The Apex Court observed that High Court is rather solicitous about the age of the appellant and thinks that because of her age she needs to be looked after. That is a lookout of landlord and not of High Court. The Apex Court disapproved the approach of High Court and observed: "We fail to appreciate the High Court giving such a gratuitous advice which was uncalled for. There is no law which deprives the landlord of the beneficial enjoyment of his property." 6. In Shiv Sarup Gupta Vs. Dr. Mahesh Chand Gupta, AIR 1999 SC 2507 the Apex Court said: "Once the court is satisfied of the bonafides of the need of the landlord for premises or additional premises by applying objective standards then in the matter of choosing out of more than one accommodation available to the landlord his subjective choice shall be respected by the court. The court would permit the landlord to satisfy the proven need by choosing the accommodation which the landlord feels would be most suited.for the purpose." 7. Similarly, in R. C. Tamrakar Vs. Nidi Lekha, AIR 2001 SC 3806 , the Court in paras 10 and 11 said: "10. Law is well settled that it is for the landlord to decide how and in what manner he should live and that he is the best judge of his residential requirement. In deciding the question of the bonafide requirement, it is unnecessary to make an endeavor as to how else landlord could have adjusted himself. 11. Though the son of the landlady is a doctor and has constructed his own house, the landlady wants to stay in the suit premises. In deciding the question of the bonafide requirement, it is unnecessary to make an endeavor as to how else landlord could have adjusted himself. 11. Though the son of the landlady is a doctor and has constructed his own house, the landlady wants to stay in the suit premises. It is not the case of the tenant that landlady has any other suitable accommodation. Therefore, the High Court rightly set aside the finding of the First Appellate Court holding that landlady could not be compelled to reside with her son as her case was that she wanted to stay by herself in the suit premises because of her health condition and the climatic condition of that place suit her." 8. This court followed the above dictum laid down by the Apex Court, in Writ Petition No.33466 of 1998 (Sri Chhannu Lal (since deceased) & others Vs. Vth A.D.J., Varanasi and others) decided on 26.7.2012 and in para 5, the Court said: "5. As a matter of proposition, it cannot be disputed that it is the privilege of landlord to determine his way of living and accommodate himself and his family according to his status, requirement etc. He cannot be compelled to live in a particular manner either by tenant or any other agency. Even the Court of law must not dictate such terms to a landlord to live an a particular manner and adjust his needs accordingly." 9. It was not the case before Appellate Court that landlord has got any own accommodation vacant so as to satisfy his need of running his own business in his own shop and the mere fact that for sustenance, one of the landlord has got a shop on rent, would not mitigate his personal need and deprive him from seeking release of the shop in question. 10. Further once it is admitted that another landlord Santosh Kumar, brother of Raj Kishore, was still unemployed, requirement of landlord for release of the shop could not have been denied by observing that said unemployed applicant-landlord no.3 would have been adjusted in the business of father or brothers. The approach and reasoning given by Appellate Court is thoroughly misconceived and misleading. 11. The impugned appellate order therefore cannot sustain. The writ petition is allowed. The approach and reasoning given by Appellate Court is thoroughly misconceived and misleading. 11. The impugned appellate order therefore cannot sustain. The writ petition is allowed. The impugned judgment and order dated 18.11.2000 (Annexure no.5 to the writ petition) is hereby set aside and the judement and order dated 19.12.1998 passed by Prescribed Authority is hereby restored and confirmed. 12. The petitioner-landlord now may proceed, taking necessary steps, for getting possession of shop in question by execution of order dated 19.12.1998 passed by Prescribed Authority. 13. No costs. _____________