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2016 DIGILAW 1825 (ALL)

Ganga Devi v. Chandra Prakash Joshi

2016-05-11

SUNITA AGARWAL

body2016
JUDGMENT Mrs. Sunita Agarwal, J. – Heard Sri S.P. Mishra holding brief of Sri Jitendra Singh learned counsel for the petitioner and Sri Tarun Verma learned counsel for the respondent. 2. The release application was filed in the year 2010 for the shop in question. It was specifically stated by the landlord therein that he would retire on 31.05.2012 and after his retirement, he want to start a general merchandise business in the shop in question. He further states that though he receives pension however, it is not sufficient for his need as he has liability of two children of his second wife. 3. It was contested by the petitioner on the ground that the need expressed in the release application was a future need for which it could not have been entertained. It was a mere desire of the landlord to evict the petitioner and therefore, the release application was required to be rejected out rightly. 4. Both the Courts below have recorded the findings on bona fide of the landlord and it was observed that the landlord had no other place for his business. He had retired on 31.05.2012 and his requirement to augment his monthly income cannot be said to be malafide. On the comparative hardship, it was recorded that two sons of the petitioner/tenant namely Deepak Badlani and Pankaj Badlani are occupying two shops and doing their business independently. 5. However, on the contest raised by the tenant that she is living separately with her sons and she has no other source of income, part release of the shop in question was allowed by the Prescribed Authority. The Appellate Court however, set aside the order of part release on the ground that once the bona fide need is established, the Court cannot guide the landlord to shrink his requirement. 6. The landlord is the best judge to decide as to how much accommodation would satisfy his need. 7. Challenging these findings, the first submission of learned counsel for the petitioner is that the release application could not have been entertained for the future need of the landlord. The release application was filed in the year 2010 for the need which was not alive at that time. This submission of learned counsel for the petitioner is not acceptable for the simple reason that the requirement of the landlord was not remote. The release application was filed in the year 2010 for the need which was not alive at that time. This submission of learned counsel for the petitioner is not acceptable for the simple reason that the requirement of the landlord was not remote. It was an imminent requirement which could be perceived on the date of filing of the release application. It is known to all that litigation's in Court take time and moreover, the records of this case itself speaks that it took about six years to the landlord to reach this stage. The appeal has been allowed in the year 2016 on merits, therefore, it cannot be said that the release application was wrongly entertained. 8. Second submission of learned counsel for the petitioner is that the need set up in the release application was farce in as much as there is nothing on record to establish that the landlord has a liability of two children of his second wife. There is nothing on record to indicate that they are residing with the landlord. This submission of learned counsel for the petitioner is wholly misconceived in as much as the need set up by the landlord for business is of himself and not for his children. The fact that whether they are living with the landlord or not, is irrelevant and the release order cannot be interfered for this reason. 9. The last submission of learned counsel for the petitioner is that, in any case the tenant would suffer greater hardship than the landlord as the shop in question is the only source of her livelihood after death of her husband. She is residing separately with her two sons who are not supporting her. There is nothing on record to establish this submission of the learned counsel for the petitioner. No evidence whatsoever has been brought on record to establish that the petitioner/tenant is residing separately from her sons rather a perusal of the documents filed with the Supplementary Rejoinder affidavit dated 10.05.2016 at page 24 and 26 does indicate that one son of the tenant namely Sri Deepak Badlani and the tenant namely Smt. Ganga Devi are residing in one House namely house no. 72 Shahstri Lane, Subhash Nagar, Gorakhpur. 10. 72 Shahstri Lane, Subhash Nagar, Gorakhpur. 10. This apart, it is apparent from the record that the shop in question is needed by the landlord as he wants to start a business after his retirement. He has retired in the year 2012 and could not start his business for approximately four years, therefore, hardship tilts in favour of the landlord. 11. For all the above reason, there is no justification to interfere in the release order passed by the Appellate Court. So far as part release is concerned, it is well settled that the Rent Control Authority cannot be guide to ask the landlord to satisfy his or her need in the particular manner. There was no justification for the part release. 12. Moreover, the provisions of Rule 16 (1) (d) of the Rules 1972 do not apply in case of a non residential building. The mistake committed by the Prescribed Authority has been corrected by the Appellate Court. 13. Lastly, learned counsel for the petitioner submits that the petitioner may be provided a reasonable time to vacate the accommodation in his possession. 14. There is no objection to this prayer from the other side. 15. It is, therefore, directed that the petitioner shall file an undertaking within a period of four six weeks before the Court below that he will vacate the premises in question on or before 15.11.2016. 16. In case, the petitioner fails to file the undertaking or vacate the house in question within the time given above, proceedings for her eviction may be initiated. 17. The petitioner shall regularly pay rent till the date of vacation of the tenanted accommodation. 18. The writ petition is devoid of merits and hence dismissed. Petition dismissed.