Sanjay Misra, J. - (1.) HEARD Sri T.P. Singh learned Senior Counsel assisted by Sri R.K. Asthana and Sri W.H. Khan learned Counsel for the petitioners and Sri A.K. Mehrotra learned Counsel appearing on behalf of the respondent Nos. 3 and 4. Counter affidavit and rejoinder affidavit have been exchanged between the parties and with the consent of learned Counsel for the parties this writ petition of the year 1992 is being decided at the admission stage itself.
(2.) LEARNED Counsel for the petitioner has relied upon the following decisions while assailing the judgment and order of the Appellate Court and has contended that dismissal of the release application, made by the landlord on the ground of augmenting his income, for the reasons that the tenant was running his business in the disputed accommodation since a long time was not justified, S.P. Sharma v. IInd A.D.J., 1983 ARC 427, that findings of fact would not be conclusive if the Appellate Court has arrived at the same on wrong legal assumption or approach, Mahabir Prasad v. VIth A.D.J. : 1994 (23) ALR 91 (LB), that an application for release on the ground of bona fide need has to be decided on the basis of pleadings and evidence adduced, the pleadings are only to ascertain as to what is the real controversy and evidence is adduced in respect of their contentions, Bata India Ltd. v. Vth A.D.J. : 1999 (35) ALR 506, that suitability of alternative accommodation has to be seen from the convenience of the landlord and his family members and if found not suitable the eviction of the tenant on the ground of bona fide requirement of the landlord would be legal. M.L. Prabhakar v. Rajiv Singhal : 2001 (43) ALR 488 (SC), that it was incumbent on the tenant to show what efforts he had made to search alternative accommodation and in the absence of such efforts the comparative hardship would not be in his favour, Shabbir v. IInd A.D.J., 2006 (1) ARC 248. Learned Counsel for the respondent has cited the following case law in support of his case.
(3.) IN G.C. Kapoor v. N.K. Bhasin : 2001 (45) ALR 808 (SC), the Hon'ble Supreme Court held that bona fide requirement means that requirement must be honest and not tainted with any oblique motive and is not a mere desire or wish. It was also held that the crucial date was the date of filing of the petition and subsequent events were not taken into notice. In Badrinarayan Chunni Lal Bhutada v. Govindram Ramgopal Mundada : 2003 AIR SCW 330, it was held that burden to prove bona fide requirement is of the landlord and burden to prove comparative hardship is on the tenant. For proof of bona fide requirement the degree of necessity is not relevant it assumes significance when deciding the issue of comparative hardship. In the case of Shiv Sarup Gupta v. Dr. Mahesh Chand Gupta : AIR 1999 SC 250, the legislative intent behind using the words bona fide need and genuine need were explained by the Hon'ble Supreme Court and it was held that the two expressions are interchangeable in practice and carry the same meaning. In the case of Sudha Agarwal v. Xth A.D.J. : 1999 (37) ALR 110 (SC), the Hon'ble Supreme Court held that when the tenants objection is barred under Explanation of section 21(1) of U.P. Act No. 13 of 1972, no presumption in favour of the landlord can be inferred regarding his need. The landlord has still no prove his bona fide need. In Surya Dev Rai v. Ram Chander Pal : 2003 (52) ALR 707 (SC), the Hon'ble Supreme Court has held that the parameters for exercise of jurisdiction under Article 226/227 of the Constitution of India cannot be tied down in a straight jacket formula or rigid rules. Such exercise of discretion is to be governed solely by the dictates of judicial conscience. An error apparent on the face of record can be corrected but may not be substituted by its own findings. In Ramesh Kumar v. Kesho Ram : 1992 Suppl (2) SCC 623, it was held that whenever subsequent events of facts and law have a material bearing on the entitlement of the parties, the Court cannot be precluded from taking cautious cognizance of the subsequent changes of fact and law. In the case of Om Prakash Gupta v. Ranbir B. Goyal : 2002 (47) ALR 203 (SC), the Hon'ble Supreme Court held that subsequent events can be taken note of by the Court if they are brought promptly and in accordance with the rules of procedure. In the case of Imambi v. Azeeza Bee : 2000 (41) ALR 116 (SC), the Hon'ble Supreme Court held that when the tenant had purchased the premises by a sale deed he would become co -owner with the landlord. In the case of Anil Kumar Tuli v. Special Judge : 2004 (56) ALR 3 (Sum) : 2004 (2) ARC 18, this Court has held that when the tenant has purchased the shop from the co -owner he becomes co -owner of the shop and cannot be evicted. In the case of Sahjahan @ Sharda Devi v. 4th A.D.J., 2003 (50) ALR 246, this Court has held that once the landlord has transferred the house in favour of a third person he ceases to be landlord and the transferee has no locus standi to pursue the release application.;