High Court
Case Details
Neutral Citation No. - 2024:AHC:113860 Court No. - 6 Case :- MATTERS UNDER ARTICLE 227 No. - 7507 of 2024 Petitioner :- Mohammad Tajrid Khan Respondent :- Akhilesh Chandra Agrawal Counsel for Petitioner :- Javed Habib,Salamuddin Khan Counsel for Respondent :- Alok Tiwari Hon'ble Saral Srivastava,J.
Legal Reasoning
1. Heard learned counsel for the petitioner and learned counsel for the respondent. 2. The petitioner by means of the present writ petition has assailed the order dated 01.04.2022 passed by the Prescribed Authority/Civil Judge (Senior Division), Pilibhit in P.A. Case No.18 of 2017 and order dated 26.02.2024 passed by the District Judge, Pilibhit in P.A. Appeal No.22 of 2022. 3. The release application has been filed by the respondent/landlord for eviction of the petitioner/tenant on the ground that respondent/landlord was employed in Madhyanchal Vidhyut Vitran Nigam Ltd. and he had retired. It is stated that the wife of the respondent/landlord has suffered cancer and he had invested huge amount in the treatment of his wife. 4. It is further stated that the younger son of respondent/landlord is married and is running medical business in a rented shop, and the elder son of the respondent/landlord is unemployed. It is further stated that since respondent/landlord had invested huge amount in the treatment of his wife, and after the retirement, he wants to augment his income, therefore, the shop in question is needed for establishing a Kirana business. 5. The release application was contested by the petitioner/tenant denying the averments made in the release application. It is stated that there are two shops with the respondent/landlord; in one shop the younger son of respondent/landlord is running medical business and in other shop, elder son is doing Sarafa business. On the basis of said objection, the need of the respondent/landlord was challenged by the petitioner/tenant. 6. It is further stated that the comparative hardship is in favour of the petitioner/tenant inasmuch as the petitioner/tenant has ten members in the family and in case, he is evicted from the shop in question, his source of livelihood would vanish, and the family of the petitioner/tenant shall come to the state of starvation. 7. The Prescribed Authority framed as many as three issues which are as under; कयय पककयरर कक मधय मकयनदयर व ककरययकदयर समबनध सथयकपत हह और दयवय धरय ककरययक तथय बकदखलर कय कवकनयम) ककरययक पर दकनक, "1. 21(1)(ए) उ o प o अधधकनयम, 1972 शहरर भवन ( कक अअतररत पपषणरय हह? 2. कयय आवकदक कप पशनरत ददकयन कक वयसतकवक एवअ सदभयकवक आवशयकतय हह? कयय 3. तदलनयतमक रप सक रदरतर हह?" ककरययकदयर कप हपनक वयलर ककठनयई आवकदक कप हपनक वयलर ककठनयई सक to prove his case and 8. On the issue no.1 the Prescribed Authority returned a finding that the application under Section 21(1) (A) of the Act No.13 of 1972 is maintainable. On the question of bonafide need, the Prescribed Authority returned a finding that burden is upon the the respondent/landlord respondent/landlord has filed cogent evidence on record and has also filed affidavits of P.W.1-Akhilesh Chandra, P.W.2-Munish Chandra and P.W.3-Shishir Kumar Garg to prove his case, and since there was consistency in the affidavits of P.W.1, P.W.2 & P.W.3 and the fact that respondent/landlord had spent huge amount in the treatment of his wife is established by him by filing documentary evidence on record, therefore, the need of the respondent/landlord is genuine. 9. The Prescribed Authority also considered the fact that the respondent/landlord has two shops in which his two sons are running business and that would not diminish the bonafide need of the respondent/landlord as the respondent/landlord wants to establish Kirana business to augment his income. 10. The Prescribed Authority also held that the petitioner/tenant did not adduce any evidence in rebuttal to the evidence led by the respondent/landlord to prove his case that the respondent/landlord is doing Sarafa business with his sons. By recording the aforesaid finding, the Prescribed Authority held that the respondent/landlord has established bonafide need. 11. On the issue of comparative hardship i.e. issue no.3, the Prescribed Authority recorded a finding that the case of the respondent/landlord in release application is that the petitioner/tenant is running milk business in the shop and he was not particular and regular in opening the shop. The Prescribed Authority further considered the fact that the petitioner/tenant has filed an application dated 04.01.2018 before the District Magistrate (RC & EO), Pilibhit for allotment of a shop, but the petitioner/tenant did not file any evidence on record indicating that he had made any effort to search out any alternative shop, and the application dated 04.01.2018 has been filed only with a purpose to show that an effort has been made by him to find out an alternative shop. 12. The Prescribed Authority further held that once the respondent/landlord has established his bonafide need and has established that the respondent/landlord shall suffer comparative hardship as compared to the petitioner/tenant in case the petitioner/tenant is not evicted from the shop in question, consequently, it held that the comparative hardship also lays in favour of the respondent/landlord. 13. The petitioner/tenant preferred P.A. Appeal No.22 of 2022 against the order of the Prescribed Authority which was also dismissed by the Appellate Authority vide order dated 26.02.2024 by affirming the finding of the Prescribed Authority. 14. Challenging the aforesaid orders, learned counsel for the petitioner has contended that the finding of the Prescribed Authority as well as Appellate Authority is perverse and based upon misappreciation of evidence on record, and therefore, the impugned orders cannot be sustained. He submits that the Appellate Authority has not recorded any reason in dismissing the appeal of the petitioner. Accordingly, he submits that the impugned orders cannot be sustained and are liable to be set aside. 15. Per contra, learned counsel for the respondent/landlord would contend that elaborate finding has been returned by the Prescribed Authority after appreciating and considering the entire evidence on record. It is submitted that the learned counsel for the petitioner could not demonstrate from the record as to which evidence of the respondent/landlord has been misread by the authority below to return a finding on the issue of bonafide need and comparative hardship. 16. It is submitted that that the finding returned by both the Courts below are finding of fact and does not call for any interference by this Court. 17. I have considered the rival submissions of the parties and perused the record. 18. So far as first the contention of learned counsel for the petitioner is that the orders passed by both the Courts below are based upon mis-appreciation of evidence is concerned, the Court has repeatedly asked the learned counsel for the petitioner to demonstrate as to which evidence has been misread by the Prescribed Authority or the Appellate Authority in returning a finding on the issue of bonafide need and comparative hardship, but he could not point out from the order impugned any of the evidence led by the respondent/landlord which has been misread by the Prescribed Authority or Appellate Authority while deciding the issue of bonafide need and comparative hardship, therefore, the said contention is devoid of merit and is rejected. 19. So far as the second contention of the learned counsel for the petitioner that the order of the Appellate Authority is non- speaking, this Court has perused the finding returned by the Appellate Authority. The Appellate Authority while deciding the bonafide need and comparative hardship has considered in detail the testimony of P.W.1, P.W.2 & P.W.3, and thereafter, returned a finding that the respondent/landlord has proved his case by leading cogent evidence. 20. The Appellate Authority has also returned a finding that the petitioner/tenant did not lead any evidence before Prescribed Authority in respect of the income of the respondent/landlord to establish that the respondent/landlord does not need any enhancement of his income. Accordingly, the Appellate Authority held that the case set up by the respondent/landlord is genuine. 21. On the issue of comparative hardship, the Appellate Authority also recorded a finding that the shop in question is needed by the respondent/landlord for running his business, and when the notice for eviction was given by the the respondent/landlord petitioner/tenant did not endeavour to find out any alternative shop. Accordingly, it decided the issue of comparative hardship in favour of the respondent/landlord. the petitioner/tenant, to 22. The aforesaid facts reveals that the Appellate Authority has also returned detail finding, therefore, it cannot be said that the order passed by the Appellate Authority is non-speaking and without application of mind.
Decision
23. Thus, for the reasons given above, the writ petition lacks merit and is hereby dismissed with no order as to costs. Order Date :- 16.7.2024 Sattyarth