Dharmdas vs Babu Lal Sharma

Shishir Kumar, J.—It is a tenant's writ petition filed against the order dated 19.11.2008 by which the application for release of the accommodation filed by the landlord has been allowed.

This is the second inning by the respondent. An application u/s 21(1)(a) of the Act was filed by the respondent-landlord before the Prescribed Authority that he wants to settle his two sons after establishing the Off-set Printing Business Press for the purpose of livelihood. The Prescribed Authority as well as the Appellate Authority has rejected the claim of the land-lord respondent and have found that need of the tenant is more genuine and bonafide. The respondent landlord aggrieved by the aforesaid orders, filed a writ petition before this Court as writ petition No. 14197of 2000 which was finally allowed by this Court on 19.11.2008 and the orders passed by the Appellate Court was set-aside and the matter was remanded back to the Appellate Authority to decide the case on merits and in view of the observations made in the judgment.

Now the order impugned has been passed by the Appellate Authority allowing the appeal and releasing the accommodation in favour of respondent-landlord. The petitioner who is the tenant has filed the present writ petition on various grounds. Sri Atul Dayal, learned Counsel appearing for the petitioner submits that the order passed by this Court in the writ petition filed by the respondent there was a mistake which is apparent that as the order of the Prescribed Authority as well as Appellate Authority was quashed and matter was remanded to the Appellate Authority. The effect was that as the order of Prescribed Authority was quashed the matter should have been decided by the Prescribed Authority not by the Appellate Authority. This objection was taken before the Appellate Authority but the Appellate Authority has not considered the same and has held that in view of judgment and order passed by the High Court , the Appellate Authority has been conferred the power to decide the appeal.

It has been submitted that the finding to this effect regarding that the petitioner is having a shop in the front of the shop in the question is not correct, i.e. residential accommodation. But the Appellate Authority has not considered the same. Further submission has been made that in the application for release filed by the respondent-landlord a specific averment has been made that in case of release of the property in dispute they will use premises which is being used as a press for other purposes, meaning thereby the need for residential accommodation of the respondent was not there. Learned Counsel for the petitioner has placed reliance upon the Constitutional Bench Judgment of the Hon'ble Apex Court reported in A.R. Antulay Vs. R.S. Nayak and Another, . Placing reliance on the aforesaid judgment learned Counsel for the petitioner submits that as there was a mistake in the judgment passed by this Court, therefore, in view of the Hon'ble Apex Court's judgment no person should suffer because of the mistake of the Court " and no man should suffer wrong by a technical procedure is erroneous. The Rules on procedures are the main of justice and not the mistress of justice. Learned Counsel for the petitioner wanted to submit that the remedy of appeal in view of the judgment and order passed by this Court has been taken away once this Court was of the opinion that the judgment and order passed by the Prescribed Authority and the Appellate Authority was bad and was quashed then the Prescribed Authority should have decided the matter on merits.? Effect of judgment passed by this Court is that petitioner who was having a remedy of appeal u/s 22 can not avail the same and now he has to approach this Court under Article 226 of the Constitution of India.

As regard the finding, the learned Counsel for the petitioner submits that petitioner is not having any other shop in the front of this shop in question and, therefore, in case the property in dispute is released in favour of the respondent he will suffer more hardship than the respondent-landlord.

On the other hand Sri A.D. Saunders, learned Counsel for the respondent submits that the Appellate Authority on the basis of evidence on record has recorded a finding of fact that in front of shop in question the petitioner is having a three story building and this fact has been admitted by him.? It is also admitted that there is a tenant in the said building. Further a finding has been recorded that during this period the petitioner has not made any efforts to get an alternative accommodation has held by the Apex Court in various judgments. In such a situation learned Counsel for the respondent submits that the Appellate Court has considered each and every aspect as the petitioner is running a Tea-stall in his house and he can shift his Tea Stall at his house.

I have heard the submissions of the parties and perused the record. After consideration of the claim of the parties a finding has been recorded that as it has been admitted by the petitioner regarding the availability of the shop under the tenancy was not been considered by the courts below.? In view of the statement made in the written statement filed by the petitioner that he is having a house on the main road near the shop in question and in the front portion is being occupied by the tenant but the authorities have not considered the said aspect of the matter, therefore, this Court by order dated 19.11.2008 has allowed the writ petition and remanded the matter. The petitioner aggrieved by the aforesaid order filed a SLP before the Apex Court as SLP No. 6185 of 2009 and that was dismissed by order dated 27.3.2009 "with the observations we are not inclined to interfere with the order passed by the High Court by which the High Court had remanded the matter to the Appellate Authority". The grievance raised by the petitioner in the present writ petition is that in view of the operative portion of the order passed by the High Court as the orders of the Prescribed Authority and Appellate Authority was quashed so matter should have been remanded to the Prescribed Authority instead of Appellate Authority. But as the petitioner has challenged the said order before the Apex Court, if this was so the petitioner should have raised this grievance before the Apex Court but there was no pleading and the judgment and order passed by this Court has been affirmed by the Apex Court, therefore, in my opinion whether at this stage the argument raise by petitioner can be expedited. As regards the finding recorded by the Appellate Authority regarding need and hardship has been discussed in paragraph 8 of the judgment. In my opinion a specific finding of fact has been recorded that as the petitioner is having a three story building in the front of the shop in question and front portion of the said building is in occupation of the tenant, therefore, the petitioner can shift his Tea-stall and can earn the livelihood from that place.

The land lord admittedly is running a printing press in the back portion of the accommodation in dispute and they need it for the said purpose. Further a finding has been recorded that during the pendency of the proceedings against the petitioner no effort have been made by the petitioner to get an alternative accommodation. Therefore, I am of the view that the finding as recorded by the court are finding of fact and in view of the aforesaid fact the writ petition is dismissed without imposing any cost.

In the last learned Counsel for the petitioner submits that some reasonable time may be granted to vacate the said premises. Six months time is granted to the petitioner provided he files an affidavit in the shape of undertaking within three weeks from today to the Prescribed Authority giving a clear undertaking that he will vacate the said shop in question within a period of six months and will not undertake any three person, in that condition the Prescribed Authority after satisfaction will grant petitioner six months time to vacate.

The rent payable by the petitioner will be paid for this period.