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2015 DIGILAW 1912 (ALL)

Jagvir Singh v. Gyanwati Rastogi

2015-07-15

SUNITA AGARWAL

body2015
JUDGMENT Mrs. Sunita Agarwal, J. The amendment application filed today be taken on record after serving a copy of the same upon the learned counsel for the respondents. Amendments are formal in nature. 2. The amendment application is allowed. 3. Necessary amendments be carried out within the course of the day. 4. Heard learned counsel for the parties. 5. By means of the present writ petition, the petitioner is challenging the order dated 15.5.2015 passed by the Additional District Judge, Court No. 1, Farrukhabad. 6. Challenging the order passed by the appellate court, learned counsel for the petitioner submits that the release application was allowed by the Prescribed Authority considering that applicant no. 2, Anil Kumar is tenant in one shop at Mohalla Meera Darwaja, Samshabad. The release application has been filed with a plea that he was facing eviction from the shop in his tenancy in SCC Suit No. 5/70/78 which has been filed on the ground of default in payment of rent. The Prescribed Authority has recorded a categorical finding that applicant no. 2 Anil Kumar is carrying on cycle business in a shop which is on rent for a long time and hence the need set up by him in the release application is not bona fide. 7. The petitioner tenant is in occupation of the tenament since a long time. As this is an old tenancy from the time of the father of the tenant and he could not find any other shop despite best efforts made by him, he would face more hardship if asked to vacate the shop. This finding of the Prescribed Authority has not been set aside by the appellate court and it has been concluded that the respondent landlord is in bona fide need of the shop in question. Finding on comparative hardship is also not justified in the facts and circumstances of the case. 8. From a perusal of the findings recorded by the appellate court, it is evident that 11 properties, description of which has been given in the judgment, have been pleaded to be the alternative accommodations available to the landlord for setting up his cycle business. The appellate court has dealt with the question of availability and suitability of each accommodation and recorded a finding of fact that there is no other alternative accommodation available to the landlord for his need. 9. The appellate court has dealt with the question of availability and suitability of each accommodation and recorded a finding of fact that there is no other alternative accommodation available to the landlord for his need. 9. It is further recorded that the landlord cannot be forced to run his business in a tenanted accommodation. He is facing eviction and hence on the ground of comparative hardship, it was opined that the landlord would face more hardship than the tenant. It was further observed by the appellate court below that the tenant has not brought anything on record to establish that he made any effort to get an alternative accommodation. 10. Learned counsel for the petitioner has not been able to assail the findings of fact recorded by the appellate court on the basis of evidence on record which are not open to juridical review in exercise of the extraordinary jurisdiction under Article 226 of the Constitution of India. 11. The writ petition lacks merit and hence dismissed. 12. Lastly learned counsel for the petitioner submits that the petitioner may be given a reasonable time to vacate the premises in question so as to enable him to arrange the alternative accommodation. 13. To this submission, Sri Rajesh Kumar Srivastava, learned counsel for the respondents has no objection. In view thereof, it is provided that: - (1) The petitioner shall file an undertaking in the shape of an affidavit alongwith a certified copy of this order within a period of three weeks before the Prescribed Authority. (2) In case such an undertaking is filed within the period given above, the petitioner shall be allowed to occupy the shop in question till 31st January, 2016. Meaning thereby that the petitioner would vacate the shop in question on or before 31st January, 2016. 14. In case, the petitioner fails to file the undertaking as directed above or vacate the shop in question within the period given above, proceedings for eviction in accordance with law shall be undertaken against him.