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2016 DIGILAW 3961 (ALL)

Mainuddin v. Jai Prakash Verma

2016-12-08

ANJANI KUMAR MISHRA

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JUDGMENT Anjani Kumar Mishra, J. -- Heard learned counsel for the petitioner and Shri Krishan Ji Khare for the respondent no. 1. 2. This petition has been filed by the landlord and arises out of a release application under Section 21 (1) (a) of the U.P. Act No. 13 of 1972 filed for release of a shop in the tenancy of the tenant/respondent. 3. Release of the shop was sought on the ground that the petitioner did not have any business and was surviving on rental income. The shop was therefore urgently and bonafide required for setting up his business. 4. Upon contest by the tenant, the Prescribed Authority vide judgment dated 27.10.2014, allowed the release application. 5. Aggrieved by the order, the tenant filed an appeal no. 6 of 2014 under Section 22 of the Act No. 13. 6. This appeal has been allowed vide order dated 28.02.2015. The order of the Prescribed Authority has been set aside and the matter has been remanded back for a fresh decision. 7. The contention of learned counsel for the petitioner is that the appellate Court being a court of fact was fully competent to pass appropriate orders on the appeal after having appreciated the evidence available on record. It has unnecessarily remanded the matter back. This order of remand is a futile exercise which will unnecessarily, prolong the litigation between the parties. 8. The second submission in this regard is that the matter has been remanded back for consideration of the case of the landlord in accordance with Rule 16 (2) of the Rules framed under the Act. This provision has already been held to be ultra vires by a Full Bench of this Court in Chandra Kumar Sah Vs. District Judge, 1976 AIR (All) 328. 9. Learned counsel for the respondent Shri Krishan Ji Khare has tried to support the impugned orders. He states that the tenant claimed title to the property in question on the basis of a family partition which was not proved by him. This question necessarily required consideration and, therefore, the matter has been remanded back to afford parties opportunity to adduce evidence in this regard and thereafter decide the case. 10. I have considered the submissions made by counsel for the parties and have perused the impugned order. 11. This question necessarily required consideration and, therefore, the matter has been remanded back to afford parties opportunity to adduce evidence in this regard and thereafter decide the case. 10. I have considered the submissions made by counsel for the parties and have perused the impugned order. 11. I find substance in the contention of counsel for the petitioner that the appellate court was competent to appreciate the evidence on record and pass appropriate orders, thereafter. There appears no justification why the matter has been remanded back. 12. Even otherwise the contention of counsel for the petitioner that Rule 16 (2) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 has been held ultra vires by this Court and, therefore, the matter was not liable to be remanded for its consideration appears to be sound in view of the judgment in Chandra Kumar Sah (supra). 13. In view of the above discussion, the order of remand in my considered opinion is not liable to be sustained. 14. Accordingly, I allow the writ petition, set aside the appellate order dated 28.02.2015 and remand the matter back to the appellate Court to decide the appeal afresh after hearing all concerned. 15. It is further provided that this exercise may be completed expeditiously, preferably within a period of four months from the date, a certified copy of this order, is filed before the Appellate Authority.