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2016 DIGILAW 1757 (ALL)

Sushila Devi v. Rajeev Kumar

2016-05-06

SUNITA AGARWAL

body2016
JUDGMENT Mrs. Sunita Agarwal, J. – Heard learned counsel for the parties and perused the record. 2. The release application has been filed in the year 1995 for release of two Dar Shop No. 847 and one Bhandariya situated at Maingunj, Kasba Etah. It was stated by the applicants/landlords that Bhandariya was initially occupied by defendant (second set) namely Sadhu Ram but it was later on encroached upon by defendant nos. 1 to 12 (defendants first set). They are illegally occupying the said premises. 3. So far as the shop in question is concerned, it was allotted on 2.2.1972 to the defendants and they are in possession thereof at the rent of Rs. 45/- per month. 4. The release application was contested by the tenant on the ground that the sons of the landlady whose need has been set up in the release application, are highly qualified and they are running coaching classes for school children. Assertion has been made in paragraph 22' of the written statement to this effect. 5. Several affidavits in evidence were filed by both the parties. After exchange of affidavits, the release application was partly allowed by the Prescribed Authority with regard to shop, however, so far as the Bhandariya is concerned, it was observed that a dispute is pending before this Court and on account of interim order, the defendants cannot be evicted. 6. The Prescribed Authority and the Appellate Authority had recorded categorical findings of fact that the applicant nos. 2, 3 and 5 are engaged in one business of running a coaching centre. As per the claim of the tenant himself they required the shop for the business proposed in the release application. 7. It is categorically recorded by the Appellate Authority that there is no evidence on record to support the submission of the defendants that the applicant Rajeev Kumar was working in a Multi National Company. 8. On comparative hardship, it was recorded by the Prescribed Authority that the tenant did not make any effort to get an alternative place. Before the Prescribed Authority, only this much has been stated that the tenant could not get a suitable place for his business of selling 'Chat' despite his best efforts. No specific instance has been narrated. 9. 8. On comparative hardship, it was recorded by the Prescribed Authority that the tenant did not make any effort to get an alternative place. Before the Prescribed Authority, only this much has been stated that the tenant could not get a suitable place for his business of selling 'Chat' despite his best efforts. No specific instance has been narrated. 9. So far as the Appellate Authority is concerned, it has simply affirmed the order of the Prescribed Authority on comparative hardship of the parties without recording any independent finding in this regard. 10. Challenging these judgments, submission of the learned counsel for the petitioners is that the tenant has come out with the specific case that the release application was not maintainable at the instance of applicant nos. 3, 4 and 5 who were engaged in their respective employment. These applicants did not file their own affidavit to dispute the nature of their engagement as narrated by the petitioner. 11. On comparative hardship, no independent finding has been recorded by the Appellate Court. Even this much has not been stated by the Appellate Court as to whether it has affirmed the finding on the said issue recorded by the Prescribed Authority. 12. Reliance is placed upon the judgment of this Court in Sunder Lal v. IIIrd A.D.J. & Others in Writ Petition No. 1262 of 1997, decided on 17.9.2012; Jalil Ahmad v. The IVth Addl. District Judge, Farrukhabad and others, 1980 ALJ 419 and Genda Ram v. The IInd Addl. District Judge, Muzaffarnagar and others, 1980 ALJ 422. 13. Placing reliance upon the judgment of this Court in Jalil Ahmad (supra) and Genda Ram (supra), submission of learned counsel for the petitioners is that the Court below is under obligation to record an independent finding on comparative hardship of the parties after analysis of evidence on record. Compliance of Rule 16(2)(a) is mandatory. The fact of long occupation of the premises by the tenant tilts in his favour on the scale of hardship. 14. Dealing with this submission of learned counsel for the petitioner, relevant is to note that the fact of long occupation of the shop in question by the tenant is not disputed. However, the shop in question was initially allotted to the tenant in the year 1972 when the landlady's sons were minor. 14. Dealing with this submission of learned counsel for the petitioner, relevant is to note that the fact of long occupation of the shop in question by the tenant is not disputed. However, the shop in question was initially allotted to the tenant in the year 1972 when the landlady's sons were minor. Now with the passage of time, they have grown and in the year 1995, age of four sons of the landlady is 21 years to 35 years. Now the, landlady required this shop to establish her sons in independent business. It is trite that every adult member of the family has a right to establish himself in an independent business. The need of the landlady cannot be ignored on the ground that the tenant is occupying the shop for a long time. In case, the release is rejected, the landlady's sons will not be able to establish their business. This fact tilts in favour of the landlady. 15. This apart, the tenant was under obligation to fetch for another shop as soon as the release application was filed in the year 1995. It does not appear that any such serious effort has been made for the last almost 20 years. The assertion in the affidavit by the tenant he could not get a suitable place for his business of selling 'Chat' is bereft of any specific instance. This fact again goes in favour of the landlady. 16. Now last submission of learned counsel for the petitioner that the judgment passed by the Appellate Court cannot be sustained for the reason that no independent finding has been recorded by it for affirmation of the order of release passed by the Prescribed Authority. 17. Reliance placed upon the judgment of this Court in Sunder Lal (supra) is misplaced. In the said case, reasons were not recorded by the Appellate Court while setting aside the findings of the Prescribed Authority. 18. Moreover, this Court has already granted an opportunity to the tenant to put forth his plea on the question of hardship to be suffered by him on account of eviction from the shop in question. His submissions in this regard have been dealt in detail herein above. 18. Moreover, this Court has already granted an opportunity to the tenant to put forth his plea on the question of hardship to be suffered by him on account of eviction from the shop in question. His submissions in this regard have been dealt in detail herein above. Simply because the Appellate Court has not given its reasoning for affirmation of the reasoning given by the Prescribed Authority on comparative hardship, there is no justification to remand as there is finding of one Court in this regard which could not be assailed by the petitioner. No new facts were brought before the Appellate Court. 19. For all the abovenoted reasons, no infirmity is found in the orders impugned. 20. However, at this stage, learned counsel for the petitioners submits that the petitioners may be given a reasonable time to vacate the shop in question. 21. It is, therefore, provided that: - (i) The petitioners shall file an undertaking within a period of six weeks before the Court below that they will vacate the shop in question on or before 15th May, 2017 and shall continue to pay the rent regularly to the landlady till the date of vacation of the shop in question. (ii) In case, the petitioners fail to furnish the undertaking or to vacate the shop in question within the time given above, proceeding for their eviction may be initiated. 22. The writ petition is dismissed. Petition dismissed.