Shiv Shankar v. Prescribed Authority, Moradabad — 1978 DIGILAW 886 (ALL)

JUDGMENT K.C. Agraiwal, J. - This is a tenant's writ petition filed against the judgment of Sixth Additional District Judge, Moradabad dated 30-9-1975. The petitioner was a tenant in a shop of which respondent 2 was the owner and landlord. 2. The landlord filed an application under Section 21 of U.P. Act No. XIII of 1972 for release of the aforesaid shop on the ground that the same was required by him for his personal use. The case taken by the landlord in the application was that he had been allotted this shop in the family partition of the four brothers, and that after passing the course of Electrical Supervisor front S.S.K. Technical Institute Moradabad he was sitting idle and he required the shop in dispute for starting a business. 3. The application was resisted by the tenant. He challenged that the need of the landlord was bonafide. He also claimed that the landlord was not the exclusive owner of the shop in dispute. Setting up his own need for the shop in dispute, the tenant asserted that he was carrying on the business of sale of utensils in the shop in dispute for the last several years and that he would be put to irreparable injury in case the application was granted. 4. Both the sides adduced evidence in support of their respective cases. The application was not allowed by the Prescribed Authority. In appeal preferred against the said judgment of the Prescribed Authority the learned District Judge passed the following order : "This appeal shall stand dismissed provided Shiv Shankar tenant respondent vacates and manages to get the Balakhana in the tenancy of Jag Mohan Khanna at the rate of Rs. 125/- per month and manages to obtain the consent of the landlord Shambu Nath within a period of 60 days from the date of the judgment failing which this appeal shall be allowed and the tenant respondent would vacate the shop in question within a period of next 30 days. In case of the vacation of the disputed shop according to above mentioned conditions and failure of the respondent to comply with the terms and conditions given out in this order then he would get two years rent from the landlord which should be deposited in the Court by 15th December, 1975 positively at the rate of Rs. 42.50 per month." 5. 42.50 per month." 5. It however appears that in the mean-time the landlord took up the matter before the Prescribed Authority and showed that as the tenant had not complied with the conditions laid down in the order of the ]earned Additional District Judge dated 30-9-1975, the appeal filed by him should be deemed to have been allowed and he be permitted to take vacant possession of the shop. The application was resisted by the tenant. By the order dated 9-3-1978 the Prescribed Authority held that as the tenant had not made the offer in the terms of the order of the appellate court the appeal of the landlord would be deemed to have been allowed and that he was entitled to the release. Against the aforesaid order Writ petition No. 480 of 1976 was filed in this court. In this writ petition the tenant challenged the order of the Prescribed Authority dated 9-3-1976. 6. The writ petition was allowed and the order passed by the Prescribed Authority dated 9-3-1976 was quashed. The order of the Additional District Judge dated 30-9-1975 was, however modified to the extent that the time of complying with the conditions mentioned in the said order was extended upto 31-1-1977. 7. Against the order of the High Court, the landlord filed an appeal before the Supreme Court. The appeal was allowed. The Supreme Court while disposing of the appeal made the following order : "We set aside the judgment of the High Court to dispose of the Writ petition in accordance with law. Since the parties have resiled from the alleged compromise, it shall not be taken into consideration while disposing of the Writ Petition. The Writ Petition shall be disposed of expeditiously." As a result of the aforesaid order the writ petition has again been listed now for disposal. 8. After hearing counsel for the parties, I find that the order of the learned Additional District Judge dated 30-9-1975 is liable to be set aside. 9. It would be seen from the facts narrated above that the application was filed by the landlord for the release of the shop on the ground of his personal requirement. The application was resisted by the petitioner. The Prescribed Authority held that the need of the landlord was not genuine. 9. It would be seen from the facts narrated above that the application was filed by the landlord for the release of the shop on the ground of his personal requirement. The application was resisted by the petitioner. The Prescribed Authority held that the need of the landlord was not genuine. In appeal the learned Additional District Judge did not examine either the question of bonafide requirement of the premises by the landlord or that of comparative hardship. It appears that since the District Judge thought that the need of the landlord could be satisfied by making available to him the Balakhana, which was also in the tenancy of the tenant, therefore he did not examine the said question properly. The finding of the Additional District Judge was that as the need of the landlord could be satisfied by the allotment of the said Balakhana he directed the tenant to make the said Balakhana available to the landlord. 10. As the Supreme Court observed in the order deciding the Special leave petition that since the parties have resiled from the alleged compromise, it shall not be taken into consideration while disposing of the writ petition. That being so, the proper course appears to be that the judgment of the Additional District Judge be set aside and he be directed to decide the appeal afresh. It has been necessitated on account of the, fact that the Additional District Judge neither gave a clear finding on the question of bonafide requirement of the premises by the landlord nor on the question of comparative hardship. 11. Shri H.S. Joshi counsel appearing for respondent 2 however contended that the learned Additional District Judge although did not record any finding on the question of comparative hardship but he definitely held that the need of the landlord was bonafide. I am not prepared to accept the submission. It is true that some observation have been made by the appellate authority in favour of the landlord but in view of the fact and circumstances of the present case, it appears appropriate that since the appeal is being remanded to the District Judge, he should decide both the questions. I am not able to decide a clear finding on the question of bonafide requirement from the judgment. 12. In the result the writ petition is allowed. I am not able to decide a clear finding on the question of bonafide requirement from the judgment. 12. In the result the writ petition is allowed. The judgment of the Prescribed Authority dated 9-3-1978 as well as that of the learned Additional District Judge dated 30-9-1975 are quashed. The learned District Judge is directed to decide the appeal afresh in the light of the observations made above. He may either decide the appeal himself or transfer it to any Additional District Judge for disposal. There shall be no order as to costs.