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2013 DIGILAW 1822 (ALL)

Ayal Das v. Anoop Kishore

2013-07-10

RAJES KUMAR

body2013
JUDGMENT Rajes Kumar,J. Heard Sri Atul Srivastava, learned counsel for the petitioner and Sri Atul Sharma, appearing on behalf of the respondents. With the consent of learned counsel for the parties, the present petition is being disposed of at the admission stage itself. 2. This is a writ petition filed by the tenant. It appears that the landlord filed a release application under Section 21(1)(a) for release of the building, which is in the nature of a shop on the ground of bonafide need. 3. The petitioner contended that the landlord has 6-8 vacant shops in his possession and there is no bonafide need while the landlord took a stand that such shops have been converted into the residential accommodation. The petitioner moved an application before the Prescribed authority for appointment of the commission to verify the fact that whether the shops have been converted into the residential accommodation or not, but the Prescribed authority has rejected the said application by the order dated 14th May, 2010 and allowed the release application of the landlord directing the petitioner to vacate the premises in dispute within two months. Being aggrieved by the said order, the petitioner filed a Rent Control Appeal No. 107 of 2010 alongwith the stay application. The Appellate court has passed an interim order in favour of the petitioner. During the pendency of the said appeal, the petitioner moved an Application under Rule 27 for appointment of an Advocate Commission to verify whether six shops are still in existence or they have been converted into residential accommodation. The said application has been rejected by the impugned order dated 23rd May, 2013. 4. Learned counsel for the petitioner submitted that unless it is verified that whether the vacant shops are still existing or they have been converted into the residential accommodation, the real issue of the bonafide need and the comparative hardship, as required to be adjudicated, cannot be adjudicated. To verify the said fact, spot inspection by the Commission is necessary, therefore, the order of the Appellate court, rejecting the application for appointment of Commission, is unjustified. 5. Learned counsel for the respondents submitted that the petitioner-tenant has moved such application earlier before the Prescribed authority also and the same has been rejected and, therefore, the Appellate court has rightly rejected such application. 5. Learned counsel for the respondents submitted that the petitioner-tenant has moved such application earlier before the Prescribed authority also and the same has been rejected and, therefore, the Appellate court has rightly rejected such application. He further submitted that the petitioner has filed the application for the appointment of the Commission just to delay the proceeding inasmuch as the interim order is operating in his favour. 6. I have considered rival submissions and gone through the impugned order as well as materials available on record. 7. Merely because the application for appointment of the Commission has already been rejected by the Prescribed authority cannot take away the power of the Appellate court to appoint the Commission to make a spot inspection to verify whether shops are still in existence or they have been converted into residential accommodation. The question involved in the Rent Control Appeal is whether for the purposes of Section 21(1)(a), there was a bonafide need and to examine the comparative hardship. To adjudicate this issue, it is necessary to verify the rival claims of the parties, that is, whether the shops are still in existence or not, as claimed by the petitioner, or the shops have been converted into residential accommodation and no shop is in existence as claimed by the landlord for which the spot inspection by the Commission is necessary. 8. In the facts and circumstances, the impugned order passed by the Appellate court, dated 23rd May, 2013 is not sustainable and is liable to be set aside. 9. In the result, the writ petition is allowed. The order dated 23rd May, 2013, passed by the Additional District Judge, Court No. 8, Agra, in Rent Control Appeal No. 107 of 2010, is set aside. The Appellate court is directed to appoint any Advocate as the Commission, within a week, from the date of presentation of a certified copy of this order with the direction to the Commission, so appointed, to give the report, within another period of fifteen days. On the receipt of such report, the parties may be directed to file their respective objections within a period of another two weeks and thereafter proceed to decide the Appeal, expeditiously, preferably within a period of three months, in accordance to law. 10. The parties are directed to cooperate in the proceeding and not to seek any unnecessary adjournment.