SHISHIR KUMAR,J. - (1.) HEARD learned counsel for the petitioner and the learned counsel for the respondent.
(2.) THIS writ petition has been filed by the landlord against an order dated 5.4.2007, Annexure-1 to the writ petition by which the appeal filed by respondent-tenant has been allowed. The petitioner being a landlord filed an application under Section 21 (1) (a) of Act No. XIII of 1972 against the respondent for release of the accommodation which has been stated to be a garage for the purpose of keeping his car after the retirement from the military service. It has been submitted that the respondent is an employee of the telephone department and the accommodation in dispute, which is a garage in Bungalow No. 87, Shastri Market Cantt., Jhansi, was given to him on rent of Rs.60/- per month, before his retirement. After retirement the petitioner is living in the said accommodation and, therefore, the said accommodation is required for the purpose of keeping his car. In the written statement filed by the respondent-tenant an averment has been made that it is a out-house consisting of two rooms and it is not a garage. The Prescribed Authority after considering the claim of the parties has recorded a finding that the need of the landlord is more genuine and bona fide and the respondent being an employee of the telephone department can get an official accommodation easily in the same city, therefore, there will be no hardship to the tenant. The application was allowed on 27.9.2006. The tenant-respondent aggrieved by the order of release filed an appeal. The appellate court allowed the appeal only on the ground that it is a bungalow consisting of 4 acres open land and there are other rooms in the bungalow and only husband and wife is residing, therefore, they can construct a separate garage for the purpose of keeping the car and in such a situation there will be no hardship to the petitioner and the respondent-tenant being a Class-IV employee will suffer more hardship than the petitioner.
(3.) LEARNED counsel for the petitioner has submitted before this Court that it is now settled in view of catena of decisions that the authority below, while considering the need of the parties and hardship, cannot suggest that the landlord can construct the accommodation for his need and on that ground the application for release of the accommodation cannot be rejected. But the appellate authority only on the ground that as there is sufficient accommodation available to the petitioner consisting of 4 acres open land in the bungalow in dispute, therefore, he can construct a garage. Further submission has been made that in case of denial by the respondent-tenant regarding existence of the garage, it was burden upon the tenant to prove it that the accommodation for which the release application has been filed, is not a garage and it is a out-house. The court only on the basis of pleading by the tenant in a written statement cannot record a finding to that effect.;