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2016 DIGILAW 3986 (ALL)

Ravi Prakash Gupta v. Madhuri Devi

2016-12-09

ANJANI KUMAR MISHRA

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JUDGMENT Anjani Kumar Mishra, J. -- Heard learned counsel for the parties. 2. The writ petition arises out of a release application under Section 21 (1) (a) of U.P. Act No. 13 of 1972 filed by the opposite party and seeks quashing of the appellate order dated 25.08.2014, whereby the release application has been allowed. The Prescribed Authority had dismissed the release application. 3. The dispute between the parties pertains to a shop. It was purchased by the opposite party on 02.12.2006. The release application was filed on 30.03.2010 alleging that the shop in question was required by the land lady to settle her son in business. 4. The submission of learned counsel for the petitioner is that the release application was dismissed by the Prescribed Authority for cogent reasons. The appellate Court has allowed the release application without setting aside the findings recorded by the Prescribed Authority. The impugned appellate order of reversal is clearly vitiated and deserves to be set aside. 5. The second contention raised is that the appellate Court has not considered the question of bonafide need as required by Rule 16 (2) of the Rules framed under the Act, which again vitiates the order impugned. 6. The last contention raised is that in view of Section 21 of the Act, the petitioner was entitled to six months notice prior to the filing of the release application. This mandatory notice was never served upon the petitioner and, therefore, the release application itself could not have been filed and was clearly not maintainable. 7. Learned counsel for the opposite party has supported the impugned order referring to the findings returned therein. He has submitted that the finding of the Prescribed Authority on the question of bonafide need was a finding returned on irrelevant considerations. The same therefore did not amount to a valid finding. 8. Referring to page 83 of the Paper Book, he has submitted that in so far as the question of service of six months notice upon the tenant is concerned, the same was duly served and a finding in this regard has been returned by the appellate Court. This finding of fact has not been assailed in the writ petition. 9. Elaborating further, he has submitted that the property was purchased by the respondent on 02.12.2006. The release application was filed on 30.03.2010 after serving the mandatory six months notice upon the petitioner. This finding of fact has not been assailed in the writ petition. 9. Elaborating further, he has submitted that the property was purchased by the respondent on 02.12.2006. The release application was filed on 30.03.2010 after serving the mandatory six months notice upon the petitioner. He therefore submits that the impugned order is liable to be affirmed. 10. I have considered the submissions made by learned counsel for the parties and have perused the record. 11. Perusal of the order passed by the Prescribed Authority reveals that the release application has been dismissed on the ground that the land lady did not appear in person before the Court. It further observed that there was no evidence on record to indicate as to what business was proposed to be set up by the land lady's son and it was also not established that she had sufficient resources for setting up a business. It also observed that apart from the shop in question, the land lady had a house of her own and her husband was carrying on business in a rented shop. For these reasons, it found that the need set up in the release application was not bonafide. 12. I find substance in the submission of learned counsel for the respondent that this finding on the issue of bonafide need was recorded for irrelevant considerations. Various affidavits were filed in support of the release application, including one of Surendra Prasad, the husband of the land lady, wherein it had been alleged that the three sons of land lady and the deponent Surendra Prasad were all unemployed. It is not the case of the petitioner that these allegations were such that they were only within the knowledge of the land lady and that her husband was not competent to state this fact on oath. It would be relevant to reiterate that the release application was filed by a lady setting up the need of her sons. The affidavit filed on record was that of her husband, the father of the very same sons. 13. Apart from the above, there was other evidence on record in the form of affidavits of Mujibur Rehman, Ayodhya Prasad as also a Power of Attorney ostensibly of the land lady in favour of her husband. The affidavit filed on record was that of her husband, the father of the very same sons. 13. Apart from the above, there was other evidence on record in the form of affidavits of Mujibur Rehman, Ayodhya Prasad as also a Power of Attorney ostensibly of the land lady in favour of her husband. It is the settled position in law that proceedings under Section 21 (1) (a) of U.P. Act No. 13 of 1972 are to be decided primarily on the basis of affidavits. 14. Under the circumstances therefore, the first reason given in the order of the Prescribed Authority that the bonafide need was not established since the land lady herself has not appeared before the Court, in my considered opinion is not sustainable. I also do not find any justification for the Prescribed Authority to have rejected the release application on the ground that the nature of the business proposed to be set up after the release of the shop had not been specifically averred. It is not denied that the sons of the land lady were unemployed. 15. Moreover, the existence of a residential house belonging to the land lady cannot be a ground for finding her need for a commercial accommodation to be, not bonafide. The Prescribed Authority has also ignored the fact that it stood admitted between the parties, that the husband of the land lady was carrying on business in a tenanted accommodation. 16. I therefore, find substance in the submission that the finding of the Prescribed Authority on the question of bonafide need was a finding returned for irrelevant considerations and was therefore not a valid finding. Therefore, even if the same has not been specifically reversed by the appellate Court, the order of the appellate Court cannot be said to be vitiated. 17. On the question of service of the mandatory six months notice, the finding returned in this regard by the appellate Court has not been specifically disputed in the writ petition. The only averment is that this notice was not received by the petitioner which assertion has been categorically denied in the rejoinder affidavit. However, since a categorical finding of the appellate Court that such a notice was duly served has not been assailed in the writ petition, in my considered opinion, it is not open for the petitioner to raise this issue during arguments. However, since a categorical finding of the appellate Court that such a notice was duly served has not been assailed in the writ petition, in my considered opinion, it is not open for the petitioner to raise this issue during arguments. The submission made in this regard is without substance and is repelled. 18. In paragraph 41 of the writ petition, it has been averred that an illegal finding was returned by the appellate Court stating that a valid notice was given to the tenant and, thereafter, the release application was filed, but, no finding was given about receipt of this notice. This averment is factually incorrect. The appellate Court has observed that the notice sent was duly served upon the tenant on 05.09.2009 and the same is established by Paper 9 Ga. The contention of learned counsel for the petitioner therefore, cannot accepted. 19. As regards the submission that the question of bonafide need has not been considered in accordance with Rule 16 (2) of the Rules framed under the Act, it would be relevant to note that this provision has been held to be ultra vires by a Full Bench decision of this Court in Chandra Kumar Sah Vs. District Judge, AIR 1976, Allahabad 328. 20. The appellate Court has observed that there is no evidence on record to show that the petitioner/tenant made any attempt to search for alternative accommodation during the pendency of the proceedings. It has therefore rightly decided the issue of comparative hardship in favour of the petitioner and I find any illegality therein. 21. In view of the foregoing discussion, the writ petition is found to be devoid of merits and is accordingly, dismissed.