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2005 DIGILAW 1532 (ALL)

Pavitra Kumar Garg v. Addl. District Judge

2005-08-17

ANJANI KUMAR

body2005
ANJANI KUMAR, J. ( 1 ) THESE three writ petitions since raise common question of facts and law, therefore with the consent of learned Counsel appearing on behalf of the parties, they are being heard and decided together by common judgment. ( 2 ) THESE three petitioners-tenants, by means of present writ petitions under Article 226 of the constitution of India, have challenged the order dated 13th August, 2002, passed by the prescribed authority under Section 21 (1) (a) of the U. P. Act No. XIII of 1972 (In short the Act)and the order dated 24th December, 2002, passed by the appellate authority under the provisions of Section 22 of the Act, whereby the appellate authority has dismissed all the three appeals preferred by the petitioners-tenant against the order passed by the prescribed authority by which the release applications under Section 21 (1) (a) of the Act against the three tenants have been allowed by the prescribed authority, copies whereof are annexed as Annexures-7 and 8, respectively, to the writ petition. ( 3 ) IT is not in dispute that respondent No. 3, namely, Rajendra Prasad Sharma is the landlord of the three shops in dispute situated in the building in dispute, which are under the tenancy of these three petitioners. It is also not in dispute that on the first floor, accommodation is in possession of the landlord for its residential requirement. The landlord filed a combined application under Section 21 (1) (a) of the Act, against all the three tenants for release of these three shops in favour of the landlord for the bona fide requirement of the landlord whos family consists of landlord himself, his wife and two sons aged about 16 and 18 years, respectively as well as father of the landlord Laxmi Narain Sharma. It is further asserted in the release application that the aforesaid accommodation was purchased by the landlord for its personal use. The landlord is a practising lawyer and have put in twenty five years practice in criminal side and has set up his office in a very small store room and that he does not possess any place where he can consult with his clients and also there is no place for library. The landlord is a practising lawyer and have put in twenty five years practice in criminal side and has set up his office in a very small store room and that he does not possess any place where he can consult with his clients and also there is no place for library. The landlord also does not have any drawing room and in the absence of any place, he is parking his car on road side and that is why the landlord requested the tenants to vacate the accommodation in their possession, but they have not vacated the same, thus these release applications. The landlord further asserted that the tenants are running very small business and in fact they do not require the shops in dispute. ( 4 ) THE petitioners-tenants contested the aforesaid release application filed by the landlord and denied the allegations made therein. The petitioners-tenants asserted that the business which they are carrying on in the respective shops in dispute is only source of their livelihood, therefore from the facts stated in their reply, it is apparent that the landlord does not require the shops in dispute what to say for bona fide requirement. The prescribed authority on the basis of the materials on record arrived at the conclusion that the need of the landlord is bona fide and further that the tilt of the comparative hardship is also in favour of the landlord. Thus, the prescribed authority vide order dated 13th August, 2002 allowed the release application filed by the landlord and directed release of the shops in dispute in favour of the landlord. ( 5 ) AGGRIEVED thereby, the petitioners-tenants preferred appeals before the appellate authority. Before the appellate authority, same arguments were advanced as were advanced before the prescribed authority. Before the appellate authority, the tenants also raised plea that since the shops in dispute in their possession have not been allotted under the provisions of the Act and the petitioners are the tenants because the landlord have inducted them as tenants, therefore the application for release under Section 21 (1) (a) of the Act against the person who is not occupying the shops in dispute under any allotment order, is not maintainable. Before the appellate authority, reliance has been placed on Apex Court and Full Bench decision of this court in Nutan Kumar and Ors. v. 2nd Additional District Judge and Ors. Before the appellate authority, reliance has been placed on Apex Court and Full Bench decision of this court in Nutan Kumar and Ors. v. 2nd Additional District Judge and Ors. AIR2002 SC 3456 , 2003 (1)AWC213 (SC), JT2002 (7)SC 481 , rlw2003 (1)SC 141 , 2002 (7)SCALE81 , (2002)8 SCC31 , and also a decision in Banshi Lal v. IVth Additional District Judge, Saharanpur and Ors. 1994 (1) ARC 374, in which also the reliance of Full Bench decision of Nutan Kumars case (supra) has been placed. The appellate authority while considering the case set up by the parties and in view of the law laid down in the case in Shanker Lal Khandelwal v. IVth Additional District Judge, Mathura and Ors. 1998 (4)AWC 838 , wherein this Court has held that that an application under Section 21 (1) (a) of the Act for release of the accommodation in dispute is maintainable with regard to such persons, who were not occupying the premises under any allotment order. The appellate authority has also considered the effect that Full Bench decision in the case of Nutan Kumar (supra) has been overruled by the Apex Court in its judgment in Nutan Kumars case and in view of the decision in the case of Shanker Lal Khandelwal (supra), the plea that the application under Section 21 (1) (a) of the Act is not maintainable deserves to be rejected and therefore the appellate authority rejected the same. On the question of bona fide requirement a well as on the question of comparative hardship, the appellate authority affirmed the findings arrived at by the prescribed authority and vide order dated 24th December, 2002 dismissed the appeals filed by the petitioners-tenants. ( 6 ) BEFORE this Court, learned Counsel for the petitioners-tenants relied upon a decision of learned single Judge of this Court in Kamrul Haq v. VIth Additional District Judge, Gorakhpur and Ors. 2003 (1) ARC 601, wherein the learned single Judge relying upon a decision in Jagdish v. District Judge and Ors. 2002 (1) AWC 766 : 2002 (1) ARC 327, has held that "the application under Section 21 (1) (a) of the Act is not maintainable against a person-tenant who is said to have been inducted by the landlord privately without any allotment order in his favour". 2002 (1) AWC 766 : 2002 (1) ARC 327, has held that "the application under Section 21 (1) (a) of the Act is not maintainable against a person-tenant who is said to have been inducted by the landlord privately without any allotment order in his favour". The aforesaid decision in the case of Jagdish (supra); the decision of the Apex Court in the case of Nutan kumar (supra) and also in the case of Smt. Protima Chatterji and Ors. v. Special Judge (Aa. Va. Aa.)/a. D. J. , Kanpur Nagar and Ors. has not been considered. These three decisions and the later decision of this Court in Munna Lal Agarwal v. Rent Control and Eviction Officer/city magistrate, Mathura and Ors. 2005 (2) AWC 1647 : 2005 (1) ARC 144, has not been considered, which are direct decisions on the controversy involved in these writ petitions, whereas the decision relied upon by learned counsel for the petitioner of learned single Judge in the case of kamrul Haq (supra) is not a direct decision on the controversy and is distinguishable on facts. ( 7 ) IN view of what has been stated above, I do not find any error, much less error apparent on the face of record in the orders impugned passed by the prescribed authority and affirmed by the appellate authority, so far as the question of maintainability of an application under Section 21 (1) (a) of the Act is concerned. On the question of bona fide requirement and the comparative hardship, the findings arrived at by the prescribed authority and affirmed by the appellate authority do not warrant any interference by this Court in exercise of jurisdiction under Article 226 of the Constitution of India in view of decision in Ranjeet Singh v. Ravi Prakash AIR2004 SC 3892 , 2004 (2)AWC1721 (SC), (SCSuppl)2004 (3)CHN152 , [2004 (3)JCR85 (SC)], JT2004 (4)SC 127 , (2004)3 MLJ72 (SC), 2004 (3)SCALE481 , (2004)3 SCC682 , as this Court cannot sit in appeal over the findings arrived at by the prescribed authority and affirmed by the appellate authority by reappraising the evidence on record unless the same is demonstrated to be perverse or suffer from the manifest error of law. ( 8 ) IN view of the discussions above, all these three writ petitions have no force and are accordingly dismissed. The interim orders, if any, stand vacated. ( 8 ) IN view of the discussions above, all these three writ petitions have no force and are accordingly dismissed. The interim orders, if any, stand vacated. However, there will be no order as to costs. . .