The landlord's privilege to choose the nature and place of business, and the consideration of comparative hardship in release applications.

Suneet Kumar, J.

The respondent-landlord filed a release application being P.A. Case No. 16 of 2008 for release of a shop situated at Kaushi Kala, Biharipura, Mathura. The bonafide need set up by the respondent-landlord was that the petitioner an employee in the Directorate of Education, New Delhi, superannuated on 31 December 2004, thereafter, the respondent registered himself as an Advocate with the Bar Council of Delhi on 30 April 2005. Since then the respondent-landlord is residing at Kosi Kalan, Mathura and is interested in setting up a business of Tax Consultancy for which the disputed shop is needed. The petitioner/tenant contested by filing objections, wherein, it was stated that the respondent has not disclosed the material fact that he has other houses in Delhi and is a permanent resident of Delhi along with his family, a malafide and illusory need has been set up, the respondent wants to sell the shop in question. There is a vacant room on the first floor of the shop in question which would suffice the need of the respondent-landlord.

2. The Prescribed Authority by judgment and order dated 18 January 2012 allowed the release application. Aggrieved, petitioner filed an appeal under Section 22 of the Act being P.A. Appeal No. 4 of 2012 which was dismissed on 4 March 2015. Petitioner under Article 226 of the Constitution of India is assailing the aforementioned orders.

3. Submission of learned counsel for the petitioner is that the Prescribed Authority committed serious error of fact and law in holding the need of the respondent-landlord bonafide and pressing. The respondent/landlord was a permanent resident of the Delhi and a practicing lawyer in Delhi Courts, further it is contended that the authorities below have failed to consider the evidence on record while deciding the question of comparative hardship.

4. In rebuttal Sri Upendra Upadhyay, learned counsel for the respondent would submit that a concurrent finding of fact has been returned by the authorities that the need set up by the respondent/landlord is bonafide, genuine and not illusory; the comparative hardship in releasing the property is in favour of the landlord as compared to that of the petitioner/tenant. There is no illegality or perversity in the judgments.

5. Learned counsel for the petitioner has failed to show any perversity in the findings recorded by the authorities. The learned counsel would contended that the shop situated on the first floor was conducive to the need set up by the respondent-landlord. The Prescribed Authority rejected the plea for the reason that the tenant cannot dictate as to which premises would suit the need of the landlord. The tenant cannot dictate terms or advise to the landlord that what he should do or what he should not. It is the privilege of the landlord to choose the nature and place of business. Therefore, it was not open for the petitioner to contend that the shop at the first floor would be most suitable to the landlord in carrying on the business in that premises. The plea that the respondent is a permanent resident of Delhi and, therefore, the premises is not needed, was not acceptable by the authorities for the reason that merely because the landlord was residing at Delhi would not mean that he would not come to Kosi, Mathura, his parental home, rather there is all the more reason for the landlord to reside or to open a office for Tax Consultancy, accordingly, the authorities found the need set up by the landlord to be bonafide. While considering the comparative hardship, it was duly proved by the landlord that the petitioner has other shops in the city, accordingly, relying upon Rule 16(2)(b) of the Rules of 1972 which provides that if the tenant is having alternative accommodation in his possession, there shall be greater justification for allowing the release application.

6. The petitioner in respect of the shop owned by him contended that it was not used as the shop but as a godown but failed to s