Subhash Chandra Sharma vs Naresh Chand Jindal
2013 Latest Caselaw 4188 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 7
 

 
Case :- WRIT - A No. - 36202 of 2013
 

 
Petitioner :- Subhash Chandra Sharma
 
Respondent :- Naresh Chand Jindal
 
Counsel for Petitioner :- Mohammad Hisham Qadeer,Shamim Ahmad
 
Counsel for Respondent :- Sanjay Kumar
 

 
Hon'ble Rajes Kumar,J.

Heard Sri M.A. Qadeer, Senior Advocate, assisted by Sri Shamim Ahmad, learned counsel for the petitioner and Sri B.D. Mandhyan, Senior Advocate, assisted by Sri Sanjay Kumar, learned counsel appearing on behalf of the respondent.

This is the petition by the tenant, challenging the order of the Prescribed Authority dated 16.5.2012 and the order of the District Judge, J.P. Nagar (Amroha) dated 1.5.2013.

The petitioner is a tenant of ground floor house no. 91, Amroha, owned by the respondent. The respondent-landlord filed a release application under Section 21 (1) (a) of the Act No. 13 of 1972 for the release of the premises in dispute in his favour on the ground that he is an old man, aged about 65 years at that time and he is a heart patient and his wife is also suffering from Arthritis. He had four daughters and one son, all married. The son was residing at Ghaziabad. Both, son and daughter-in-law are doctors. They were earlier residing along with son at Ghaziabad upto 2004 but they have left the house because of non-understanding with the daughter-in-law and started living with his brother at Amroha. The petitioner filed written statement. In Para 24 of the written statement, it is stated that apart from house no. 91, the respondent had one more house no. 93 at Amroha, which was in the name of his father and after the death, the respondent has become owner, hence the respondent has no bonafide need of the premises in dispute. It was stated that during the pendency of the suit in 2010, the first floor has been vacated by Sri Anil Kumar and second floor has also been vacated by Sri Mahesh Bhatnagar and both the floors were available to the respondent which were sufficient for their living.

The Prescribed Authority allowed the release application on the ground that the applicant is an old man and is suffering from heart disease and has also been subjected to heart operation and his wife is suffering from Arthritis and both have been advised to live on the ground floor, which was in possession of the petitioner and, therefore, the landlord has established the bonafide need. It is further stated that it is upon the landlord to decide that which floor would be more appropriate for his living and the tenant cannot interfere on his discretion. On a comparative hardship, the Prescribed Authority has stated that the tenant was a Police personnel and is out of service and he belongs to Bijnor and after the retirement, he can live at Bijnor. It has been further observed that the tenant has neither any business nor he has any agricultural land at Amroha.

Being aggrieved by the order of the Prescribed Authority, the petitioner filed an appeal which has been dismissed by the order dated 1.5.2013, which is impugned in the present writ petition.

Learned counsel for the petitioner submitted that the Prescribed Authority in its order has stated that the second floor was vacant. The petitioner has offered to vacate the premises in case he may be provided alternate accommodation on the first floor or on the second floor. The said plea has not been accepted by the appellate authority on the ground that such offer has not been made when both the premises fallen vacant in the year 2010. He further submitted that the landlord had another house at Amroha, which claimed to have been sold in the year 2009 during the pendency of the suit and the landlord failed to establish his genuine bonafide need inasmuch as the comparative hardship is in favour of the tenant. The landlord is at present living along with his brother at Amroha comfortably and at present there is no genuine need.

I do not find substance in the argument of learned counsel for the petitioner.

The bonafide need and the comparative hardship are to be examined with reference to the premises in dispute. I am of the view that on the facts and circumstances, the landlord was able to make out a case of genuine bonafide need of the premises in dispute. The landlord was aged about 65 years when the release application was filed. At present he is more than 70 years old. Various evidences have been filed to demonstrate that he was suffering from heart disease and has also been subjected to heart surgery. The evidences have also been filed to demonstrate that his wife was Arthritis patent and both have been advised to live on the ground floor. This establishes genuine bonafide need of the landlord. So far as the comparative hardship is concerned, it is also in favour of the landlord as observed by both the authorities that the petitioner was a retired Police personnel and is out of service and belongs to Bijnor. Neither he is doing any business nor he has any agricultural land at Amroha and, therefore, he can conveniently go to Bijnor. In any view of the matter, no effort has been made since last several years to search any other accommodation. Both the authorities have recorded the findings that other house no. 93 was in the name of his father, who had executed a will in favour of his grandson and the grandson sold the said house in the year 2009. The said house was neither owned by the landlord nor it was in his possession.

In my view, the bonafide need and comparative hardship are to be examined only with reference to the property in dispute. Whether other portion of the house is vacant or it has been let out, is wholly irrelevant. It is the choice of the landlord to either let it out or to keep the property in his possession. The tenant has no right to dictate his own term. The tenant, as a matter of right, cannot claim that he may be provided alternate accommodation.

In the case of Shiv Sarup Gupta Vs. Dr. Mahesh Chand Gupta, reported in (1996) 6 SCC 222, while considering the bonafide requirement of the landlord, the Apex Court has held that the alternative accommodation available to the landlord, must be reasonably suitable, obviously in comparison with the suit accommodation wherefrom the landlord is seeking eviction. Convenience and safety of the landlord and his family members would be relevant factors. 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 style of living, their habits and the background wherefrom they come.

In the case of M.M. Quasim Vs. Manohar Lal Sharma, reported in (1981) 3 SCC 36, the Apex Court has held that the landlord does not have an unfettered right to choose the premises but merely showing that the landlord has some other vacant premises in his possession may not be sufficient to negative the landlord's claim if the vacant premises were not suitable for the purpose for which he required the premises. The Court must understand and appreciate the relationship between the legal rules and necessities of life.

In the case of Sarla Ahuja Vs. United India Insurance Co. Ltd. (1996) 5 SCC 353, the Apex Court has held that the Rent Controller should not proceed on the assumption that the landlord's requirement is not bonafide. When the landlord shows a prima facie case a presumption that the requirement of the landlord is bonafide is available to be drawn. It is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without giving possession of the tenanted premises. While deciding the question of bonafides of the requirement of the landlord, it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted himself.

In the case of Ragavendra Kumar Vs. Firm Prem Machinery and Co., reported in AIR 2000 SC 534, the Apex Court has held that it is settled position of law that the landlord is best judge of his requirement for residential or business purpose and he has got complete freedom in the matter.

In the case of Ashfaque Brother and others Vs. Additional District Judge, Court No. 10, Kanpur Nagar and others, reported in 2010 (3) ARC 544, this Court has held that it is the legal right of the landlord to decide which portion or accommodation would suit him/her for utilizing it how and in what manner. This factor of utility is to be satisfied by him to meet his needs is only dependent upon the landlord only and tenant has no say in the matter.

In view of the above, the findings recorded by both the authorities that the landlord has a bonafide need and comparative hardship is in favour of the landlord are the findings of fact, based on material on record and needs no interference.

Learned counsel for the petitioner submitted that a reasonable time may be allowed to vacate the premises.

In the facts and circumstances, it would be appropriate to allow three months time to the petitioner to vacate the premises, in case if the petitioner gives and undertaking before the court below.

In the result, the writ petition fails and is dismissed.

Order Date :- 16.7.2013

OP