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2015 DIGILAW 1353 (ALL)

Sudhir Kumar v. Imran

2015-05-22

SUNEET KUMAR

body2015
JUDGMENT Suneet Kumar, J. The respondent filed a release application under Section 21(1)(a) of Act No. XIII of 1972 setting up a need for the shop in question for the third respondent, Parvej Alam, who upon obtaining a degree in law wants to practice law. The petitioner/tenant appeared and contested the release application by filing objection/written statement. It was admitted that the shop is in the tenancy and it was not disputed that the third respondent has a law degree. The prescribed authority allowed the release application on both the count of bonafide need and comparative hardship in favour of the respondent/landlord. Aggrieved, petitioner preferred an appeal being Rent Appeal No. 16 of 2014 which was dismissed on 28.2.2015. The petitioner is assailing the aforesaid orders in writ jurisdiction. 2. The submission of the learned counsel for the petitioner is that the appellate Court has not considered that ample accommodation was available with the respondent/landlord, the non-issuance of a Commission has eventually affected the proceedings while recording the finding that the shop in question is the only available shop with the landlord. It is contended that the appellate Court did not consider the relevant aspect that other rooms were available. The Courts below were bound to consider, as to whether the rooms were suitable for the proposed profession. In support of his submission learned counsel for the petitioner has relied upon the following judgments: Radhey Shyam Rastogi vs. Ashish Kumar and another (2008 (4) AWC 3624 (SC), Shanti Devi (Smt.) and others vs. Smt. Ramshree and others (2013) (2) ARC 67 , Roman Catholic Diocese Private Limited vs. Addl. District Judge Room No. 13 Agra and others (2014(2) ARC 787), Dr. Krishna Dev Verma vs. VIth Additional District Judge, Gonda [2014(32) LCD 1054]. 3. In rebuttal Sri Siddharth Verma, learned counsel appearing for the respondent would submit that there is no illegality, infirmity or jurisdictional error in the order passed by the Courts below. 4. This Court in writ jurisdiction would ordinarily not disturb the concurrent finding of fact recorded by the Courts below on the question of bona fide need and comparative hardship. The case of the petitioner is that the respondent/landlord had other accommodation in which he could adjust his son by giving him space for office. 4. This Court in writ jurisdiction would ordinarily not disturb the concurrent finding of fact recorded by the Courts below on the question of bona fide need and comparative hardship. The case of the petitioner is that the respondent/landlord had other accommodation in which he could adjust his son by giving him space for office. In effect the tenant/petitioner's argument was that the respondent/landlord should not give office space to his son which was actually required for the profession but should be given a space which was being suggested by the tenant/petitioner that would suffice the bona fide need of the landlord. Alternative accommodation disentitling landlord to release a possession must be reasonably suitable in comparison with the suit property. Convenience, safety of the landlord and the purposes for which the accommodation is required are factors relevant to the consideration. While considering the totality of the circumstances, the Court may keep in view the profession or vocation of the landlord and his family members, their living standard, their habits and the background from where they come. (Shiv Sarup Gupta vs. Dr. Mahesh Chand Gupta ( AIR 1999 SC 2507 ). 5. The respondents were confronted with the accommodation which he had on the ground floor and the first floor by the tenant and the Court. The respondents had been successful in satisfying the Court that no portion of the alternative accommodation which was being suggested by the tenant/petitioner was available for establishing his son's office. 6. The Courts below have recorded a concurrent finding of fact relying upon the material available on record, this Court in writ jurisdiction would not reassess the evidence and material to record a finding different from that recorded by the Courts below. The argument of the petitioner that the Commission was not appointed by the Courts below, was duly considered. It has been noted that the accommodation which was being sought to be inspected by the Commission was being used by the respondent/landlord in one way or the other. The ground floor was being used, as a living room, servants room and to accommodate the buffaloes, whereas, the first floor accommodated the family of the landlord. As the respondent/landlord are Muslims it was not possible to have a office of a lawyer on the first floor as it was predominantly being used by the ladies of the family. The ground floor was being used, as a living room, servants room and to accommodate the buffaloes, whereas, the first floor accommodated the family of the landlord. As the respondent/landlord are Muslims it was not possible to have a office of a lawyer on the first floor as it was predominantly being used by the ladies of the family. The Courts below have further recorded that the petitioner/tenant have made no effort to find an alternative accommodation, accordingly, the finding of comparative hardship tilted in favour of the landlord. Further it was not denied that the petitioner had a shop in his own house into which he could easily shift. 7. For the reasons stated herein above, the writ petition being devoid of merit is, accordingly, dismissed. 8. On the request of the learned counsel for the petitioner, it is provided that in case the petitioner gives an undertaking on oath before the District Judge, Muzaffar Nagar that he shall vacate the premises in question and hand over the possession of the same peacefully to the respondent-landlord on or before 30 November 2015. The aforesaid undertaking on oath shall be given by the petitioner before the Court below within 10 days from the production of certified copy of this order and the petitioner shall deposit the monthly rent of the premises in question before the Court below, as per the current rent fixed and shall continue to deposit the same by 07th of the each calendar month till the vacation of the premises in question, which amount may be permitted to be withdrawn by the respondents-landlord after due verification by the Court concerned. 9. It is made clear that in the event of default committed by the petitioner/tenant in any of the conditions, the order shall stand automatically vacated without reference to the Court.