Research › Search › Judgment

Allahabad High Court · body

2010 DIGILAW 717 (ALL)

Ganga Prasad v. Vinod Kumar Kedia

2010-02-25

RAN VIJAI SINGH

body2010
JUDGMENT Hon'ble Ran Vijai Singh,J. The writ petition was allowed after hearing Sri Tarun Verma learned counsel for the petitioner and Sri Wajid Ali learned counsel for the respondent in the open court. It has been brought to my notice that the order has been uploaded without correction and signature. In view of that the order dated 07.01.2010 is recalled and following order is being passed. 2. This writ petition has been filed for issuing a writ of certiorari quashing the impugned judgments and orders dated 16.4.2008 passed by Prescribed Authority/Judge Small Causes Courts, Gorakhpur in P.A.Case No. 22 of 2003 (Vinod Kumar Kedia vs Ganga Prasad and another) and 16.12.2009 passed by Additional District Judge (Court No.1) Gorakhpur in Rent Appeal No.8 of 2008 (Ganga Prasad and another vs. Vinod Kumar Kedia) respectively. Vide order dated 16.04.2008 the application of the respondent (Landlord) Vinod Kumar Kedia filed under Section 21(1) (a) of the U.P. Act No.13 of 1972 was allowed with the direction to vacate the premises within a period of one month and to hand over the possession to the landlord. By the subsequent order the petitioner's appeal was dismissed. 3. The facts giving rise to this case are that the petitioner happens to be tenant of a shop situated in Mohalla Sheshpur, Gorakhpur Janta Ghee Bhandar Purdilpur, Jublee College, Road, Gorakhpur. The said shop was given on rent to the petitioner in the year 1942. It appears later on, the entire building including the shop was purchased by the present respondent on 04.06.1992 and thereafter landlord has filed an application on 18.11.2003 for releasing the said accommodation on the ground of personal need stating therein that the son of the landlord namely Sri Anil Kedia who has passed B.Com. examination and married one wants to set up a business in the disputed premises. 4. The present petitioners have filed their reply denying the need of the landlord. The parties have led their evidence before the Prescribed Authority and the Prescribed Authority after considering the material available on record has found the need of the respondent landlord bonafide and the findings with regard to the comparative hardship has also been recorded in favour of the respondent. Taking this into consideration the Prescribed Authority has allowed the release application on 16.4.2008. 5. Taking this into consideration the Prescribed Authority has allowed the release application on 16.4.2008. 5. Aggrieved by this order the petitioner has filed an appeal that was dismissed and the findings recorded by the Prescribed Authority with regard to the bonafide need and comparative hardship have been affirmed by the Appellate Court. 6. Sri Tarun Verma learned counsel appearing for the petitioner has submitted before the Court that the impugned judgments have been passed without consideration of the objection to the Amin's report. It appears that the petitioner has challenged the order of the confirmation of the report of Amin before this Court through writ petition No. 42364 of 2009. This writ petition was disposed of on 06.09.2007 with liberty to the petitioner to challenge the order of confirmation in the appeal. The operative portion of the order passed by this Court is quoted below: "Without expressing any opinion about the merit of the impugned order at this state, writ petition is disposed of with liberty to the petitioner to challenge order dated 30.04.2007 also in case release application is ultimately decided against him and he files appeal. Prescribed Authority is directed to decide release application very expeditiously." 7. Sri Verma has submitted that this order has been produced before the Prescribed Authority but the Prescribed Authority without taking into consideration of the order of this Court as well as the Amin's report has allowed the release application of the landlord. While filing the appeal the petitioner has also raised specific ground with regard to the objection to the Amin's report but that was not considered while passing the impugned order. The attention of the Court has been drawn towards the ground no.7 of the memo of appeal which has been brought on record as annexure-15 to the writ petition where specific plea has been taken in this regard. The Appellate court has not considered the objection to the Amin's report and affirmed the findings recorded by the Prescribed Authority. 8. Sri Syed Wajid Ali learned counsel appearing for the landlord has submitted before the Court that he does not propose to file counter affidavit in this writ petition and the writ petition be decided on merit. The Appellate court has not considered the objection to the Amin's report and affirmed the findings recorded by the Prescribed Authority. 8. Sri Syed Wajid Ali learned counsel appearing for the landlord has submitted before the Court that he does not propose to file counter affidavit in this writ petition and the writ petition be decided on merit. However, he has submitted before the court that the judgment of this Court was never produced before the Prescribed Authority and the order passed by the Prescribed Authority cannot be interfered with on this count. 9. I have heard learned counsel for the parties and considered their submissions. So far as the finding of fact recorded with regard to the bonafide need and comparative hardship of the landlord on the basis of considered material is concerned that finding cannot be interfered with as nothing has been argued before this Court except non consideration of the objection to the Amin's report. So far as the objection to the Amin's report is concerned it is apparent from the perusal of the impugned judgment rendered in appeal that not even a single word has been considered with regard to the same and the finding recorded with respect to the bonafide need and comparative hardship have been affirmed. 10. So far as the submissions of learned counsel for the respondent with regard to the non production of the copy of the judgment of this Court in writ petition No. 42364 of 2009 dated 06.09.2007 before the prescribed Authority is concerned that would not be fatal as it was raised in appeal and Appellate Court was under legal obligation to look into the same before affirming the findings recorded by Prescribed Authority. 11. In view of that I am of the opinion that the Appellate Court has erred in not considering the objection to the Amin's report while confirming at the finding with regard to the bonafide need and comparative hardship of the landlord. 12. In the result the writ petition succeeds and is allowed. The impugned orders are hereby quashed. The Appellate Authority is directed to consider the petitioner's objection to the Amin's report pursuant to the judgment of this Court dated 06.09.2007 passed in writ petition no. 42364 of 2009. 12. In the result the writ petition succeeds and is allowed. The impugned orders are hereby quashed. The Appellate Authority is directed to consider the petitioner's objection to the Amin's report pursuant to the judgment of this Court dated 06.09.2007 passed in writ petition no. 42364 of 2009. The Appellate court is also directed to decide the appeal within a period of six months from the date of receipt of certified copy of the order of this Court, without granting any unnecessary adjournments to the counsel for the parties. It is made clear that the writ petition has been allowed only to the extent of non consideration of the objection to the Amin's report.