BHURA MAL Vs. VISHNU SARAN

JUDGEMENT

(1.) THIS is a writ petition filed by tenant against concurrent findings of bona fide need and comparative hardship recorded against him by Prescribed Authority and Appellate Court in proceedings initiated by landlord/respondent under section 21 of U.P. Act No. 13 of 1972 registered as Prescribed Authority case No. 10 of 1985 on the file of Prescribed Authority Chandausi District Moradabad. The Prescribed Authority allowed the release application by order dated 7.4.1998. The Prescribed Authority allowed the release application only under section 21(1)(a) and dismissed the same under section 21(1)(b) of the Act. Appeal against the same filed under section 22 of the Act registered as R.C. Appeal No. 19 of 1998 and 25 of 1998 have been dismissed by Additional District Judge, Chandausi, District Moradabad through judgment dated 18.4.2003. The above -noted writ petition is directed against the aforesaid judgment and order passed by Appellate Court and Prescribed Authority. Before Appellate Court tenant had filed appeal (R.C. Appeal No. 19 of 1998) against that part of the order of the Prescribed Authority through which release application of the landlord had been allowed under section 21(1)(a) of the Act landlord/respondent had filed appeal (R.C. Appeal No. 25 of 1998) against that part of the order of Prescribed Authority through which this release application had been dismissed under section 21(1)(b) of the Act. Basically the findings with regard to bona fide need and comparative hardship are findings of fact which cannot be interfered within exercise of writ jurisdiction except on limited grounds such as non -consideration of vital aspect of the matter or perversity etc. Learned counsel for the petitioner being fully aware of limitations of writ Court has only argued that two other portions were available to the landlord, hence, the Courts below should have either dismissed the release application on the said ground or directed the landlord to give one of those portions to the tenant/petitioner on rent.

(2.) WITH regard to the shop shown by latter J the case of landlord was that it was in tenancy occupation of Kannu Mal and was not suitable for the business of his son as it was is too small being only of 5 x 3 feet. Learned counsel for the tenant/petitioner stated that his client was ready to shift in that shop. Learned counsel for the petitioner argued that the said shop is in dilapidated condition without roof and it was got released by the landlord for his own use and is actually being used. It is very difficult to accept that the shop is roofless and is still being used by the landlord for his use. Before the Lower Appellate Court landlord/respondent filed a counter -affidavit which is Annexure -XI to the writ petition in para 3(g) it has been stated that portion marked by latter J is 5 x 3 feet size and not of 6 x 4 feet. It is a roofless structure. I got it released about two years back for my personal use. It is very small and no business can be conducted from it. I am using it without roof. The affidavit was sworn on 20.12.1999.