Court No. - 26
Case :- WRIT - A No. - 10658 of 2018 Petitioner :- Alaudeen Saifi Respondent :- District Judge Hapur And 2 Others Counsel for Petitioner :- Dhirendra Bahadur Singh Counsel for Respondent :- Manish Goyal
Hon'ble Mrs. Sangeeta Chandra,J.
Heard learned counsel for the petitioner and Sri Avijit Saxena, learned counsel for respondent no.3.
This petition has been filed by the petitioner/tenant challenging the order dated 21.12.2015 passed by the prescribed authority allowing the release application moved under section 21 (1) (a) by the landlord/respondent no.3 and the order dated 02.04.2018 passed by respondent no.1 rejecting his appeal.
Learned counsel for the petitioner has pointed out the order passed at the appellate stage on 22.01.2016 by the District Judge while entertaining the appeal and has argued that since the learned District Judge has given an interim order during the pendency of the appeal so that the appeal may not become infructuous, therefore, this Court also should grant an interim order staying the operation of the impugned orders so that the writ petition may not become infructuous.
It is to be noted that the writ petition is not filed as a matter of right but it is an invocation of the extraordinary jurisdiction of this Court and is entertained only if the petitioner can show to this Court prima facie illegality in the orders impugned.
The appeal was later on dismissed but due to it being a statutory appeal, respondent no.1 granted interim order staying the operation of the impugned order of the prescribed authority during pendency of the appeal. This ground alone would not suffice for granting an interim order in this writ petition.
Learned counsel for the petitioner could not show any illegality in the order of the prescribed authority although he has tried to impress upon this Court that the oral evidence submitted by the petitioner/tenant before the prescribed authority establishes that the shop in question was being run earlier by the grandfather of the petitioner and thereafter by his grandmother along with his father Abdul Hakim and that the petitioner has continued to work in the shop in question since the time his grandfather and grandmother were alive and he had looked after his grandmother.
Learned counsel for the petitioner has submitted that it has come on record also that the petitioner/tenant does not have any other alternative source of income and he needs a shop to carry out his livelihood and support his family. It has also come in the statement of the neighborhood shopkeeper one Abdul Khalid that the landlord/respondent has other alternative accommodation available to them on the same property on which he can set up a shop for his wife if he so wishes and, therefore, there was no bona fide need of the landlord to get the shop in which the petitioner is running a motorcycle repair works vacated. Learned counsel for the petitioner has submitted that the petitioner/tenant had tried to find out alternative accommodation to shift the shop in question but he could not find any alternative accommodation.
Learned counsel for the petitioner has tried to argue this writ petition as if it was on the original side. This Court while exercising its writ jurisdiction for grant of certiorari on orders passed by judicial authority has a very limited jurisdiction and has only to see whether the order impunged is perverse i.e. the findings recorded by the judicial authority are beyond the material on record or against the material on record or that the judicial authority has exceeded its jurisdiction in passing such orders. No such case is made out by the learned counsel for the petitioner.
I have perused the orders impugned passed by the prescribed authority.
While the prescribed authority has given a finding that the grandfather of the petitioner/tenant was the original tenant of the shop in question his son Abdul Hakim used to sit in a different shop by the name and style 'New Mechanical Works' at Bulandshahar Road along with his brothers Abdul Salam and Abdul Kalam during lifetime of his father. It was only after Abdul Rahim, the original tenant died that Abdul Hakim, the father of the petitioner/tenant shifted to the shop in question to claim his right as legal heir of late Haji Abdul Rahim. The prescribed authority has recorded a conclusion after correct appreciation of fact that only because the grandfather of the petitioner/tenant was the original tenant of the shop, the joint tenancy of the shop could not be said to have been inherited by the tenant. The prescribed authority has also looked into the bona fide need of the landlord to set up an independent business for his wife as the need for additional income to be secured by the landlord for his growing children had been made out before the prescribed authority. The prescribed authority has also come to the conclusion on the basis of failure on the part of the petitioner/tenant to look for alternative accommodation that he was not facing any great hardship in shifting the shop in question.
The learned Appellate Court while dealing with the submissions made by the learned counsel for the petitioner/tenant has observed that the finding recorded by the prescribed authority did not suffer from any perversity. The first Appellate Court having found no material evidence produced by the petitioner/tenant to show that he had inherited the tenancy from his grandfather has rejected the appeal.
Having gone through the orders passed by the appellate authority, I find that it has considered the order passed by the prescribed authority in detail and also the judgments cited by the petitioner/tenant in his appeal at great length and it has come to a conclusion that there is no merit in the appeal. I do not find any factual or legal infirmity in the orders impugned to use extraordinary jurisdiction under Article 227 of the Constitution of India.
Writ petition is dismissed.
The counsel for the petitioner prays for some reasonable time to be given to him to vacate the premises in question.
Accordingly, the petitioner is given three months time to vacate the premises in question subject to the petitioner submitting an undertaking before the prescribed authority that he will hand over vacant possession of the shop in question within three months.
For a period of three months, the rent of Rs.300/- per month shall be tendered to the landlord within seven days of its accrual each month till vacant possession of the shop is handed over to him.
Order Date :- 26.4.2018/Madhurima