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2014 DIGILAW 1933 (ALL)

J. S. Gujral v. Additional District Judge

2014-07-03

PANKAJ MITHAL

body2014
JUDGMENT Pankaj Mithal, J. – Heard Sri Ravi Kant, Senior Advocate assisted by Sri Vishal Agrawal, learned counsel for the petitioner. Sri Sanjay Agrawal has appeared for the contesting respondents. 2. The dispute in this petition is in relation to shop situate in house no. 32/89 Purana Kutalpur, Chipitola Rakabganj, Agra wherein petitioner is a tenant on rent of Rs. 570/- per month. 3. The respondents landlords applied for release of the aforesaid shop under Section 21 of U.P. Act No. 13 of 1972 for the need of two grandsons of Smt. Sumaria Devi and sons of Kalidas namely Mukesh Kumar and Dheeraj Kumar. The release application was rejected by the prescribed authority with the specific finding that both the aforesaid persons are well settled in their independent business and the need as established by the respondents landlords is not at all genuine and bonafide. The appellate court has set aside the judgment and order passed by the prescribed authority and has allowed the appeal and the release application vide judgment and order dated 16th April, 2007. 4. It is against the aforesaid judgment and order of the appellate court that the petitioner tenant has preferred this writ petition. 5. The first submission advanced by Sri Ravi Kant is that the appellate court has passed the impugned judgment with pre-determined mind. The appellate court has not reversed any of the findings recorded by the prescribed authority and at the same time has failed to record a clear finding with regard to bonafide need of the respondent landlord. In the absence of such finding judgment and order of the appellate court stands vitiated in law. 6. As far as the need of Dheeraj Kumar is concerned, both the courts below have concurrently held that he is well settled in cycle business and that he does not require the shop in dispute for independent business or extension of the business. Thus, the fate of release application is dependent upon the need of Mukesh Kumar only. 7. A bare reading of the judgment and order of the prescribed authority would reveal that it has elaborately considered the need of Mukesh Kumar and Dheeraj Kumar. Thus, the fate of release application is dependent upon the need of Mukesh Kumar only. 7. A bare reading of the judgment and order of the prescribed authority would reveal that it has elaborately considered the need of Mukesh Kumar and Dheeraj Kumar. The prescribed authority in considering the need of Mukesh Kumar has held that he is working with Flexon Company and the argument that he had taken a contractual employment only for a year with the said company is not acceptable. A further finding has been recorded that he is drawing Rs. 6,392/- and after necessary deductions he is getting a sum of Rs. 5,500/- per month. 8. It has also been recorded that no evidence was adduced to establish that the respondent landlords have vacated the shop situate in house no. 32/94/2 from where they have started doing business in the name of M/s. Shiv Baba. They have not produced any affidavit of the landlords of the said premises that he has obtained possession thereof. No other evidence was brought on record to indicate that the said business has been closed down. 9. In other words, the finding of the prescribed authority is that Mukesh Kumar is employed in Flexon company. His mother is doing the business in the name of M/s. Shiva Baba and that he is also assisting her in carrying on the said business and as such he does not require any shop for starting any new business. 10. The appellate court has all through stated that the judgment and order of the prescribed authority is not tenable and is not correct. However, none of the findings as returned by the prescribed authority have been touched by the appellate court rather it accepts that Mukesh Kumar was working with the Flexon company as data operator. The appellate authority simply for the reason that Kalidas has retired and that he has asked for release of the shop for establishing his sons who are stated to be unemployed has allowed the release application by holding the need to be genuine and bona fide. 11. The appellate court failed to set aside the findings which were recorded by the prescribed authority and had proceeded to record its own finding. He could not have recorded/substituted his own findings without setting aside those returned by he prescribed authority. 11. The appellate court failed to set aside the findings which were recorded by the prescribed authority and had proceeded to record its own finding. He could not have recorded/substituted his own findings without setting aside those returned by he prescribed authority. Moreover, the finding of the appellate court that the need of the respondent landlords is genuine and bonafide is based upon conjunctures and surmises without reference to any evidence on record. 12. In view of the aforesaid facts and circumstances, I am of the opinion that the judgment and order passed by the appellate court is not sustainable and that matter requires reconsideration by the appellate court. 13. Accordingly, the impugned order dated 16th April 2007 passed by the Additional District Judge as appellate authority is quashed and the matter is remanded for re-deciding the appeal in accordance with law as expeditiously as possible preferably within a period of six months from the date of production of the certified copy of this order. 14. The writ petition is allowed.