Brijesh Kumar - (1.) THE dispute in the present writ petition centres round a shop which was refused to be released in favour of petitioner in proceedings initiated by them under section 21 of Act 13 of 1972 (hereinafter referred to as the Act) and the appeal filed against the order of the prescribed authority also met the same fate. Certified copies of the judgments passed by the prescribed authority and the appellate court have been filed as Annexures 1 and
(2.) RESPECTIVELY to the petition. 2". I have heard learned counsels for the parties. Initially, it appears that one Ashiq Ali was the tenant of the shop in question situate in Bazar Shambha in the town of Shahabad, district Hardoi. Ashiq Ali met within his death sometime before eviction proceedings were initiated, impleading his heirs as opposite parties, the petitioners, namely, the landlords of the shop in dispute sought release of the shop in their favour and eviction of the opposite parties on the ground that walls and roof of the shop had fallen down; it is in a dilapidated condition, they wanted to demolish the shop and reconstruct it. After reconstruction, they wanted to settle their sons to carry on business in the said shop. The shop was thus required for their personal need. The application was contested by the opposite parties saying that the shop was not needed by the petitioners and since the shop had totally fallen down, it is not a "building" within the meaning of the term as defined under the Act, hence the provisions of the Act are not applicable to the premises in question. It was also pleaded that the shop was mortgaged with some Chandra Dutt, who had also been given right to realise half of the rent, hence he was aiso a necessary party and for non-joinder of necessary party, the proceedings were bad.
(3.) THE prescribed authority after framing issues decided the case against the present petitioners and dismissed their application. It was held that the shop was not bona fide required by the petitioners. It was also held that the need of opposite parties were greater. THE proceedingwere held to be maintainable even in absence of Chandra Dutt as party to the proceedings and also that the provisions of the Act were applicable to the premises in question. THE prescribed authority also recorded a finding that the shop was in a dilapidated condition within the meaning of section 21 (1) (b) of the Act, but compliance with Rule 17 of the Rules framed under the Act was not made as it was found that the estimate of demolition and reconstruction did not include cost of demolition likely to be incurred. THE application was, therefore, rejected. The order of the prescribed authority was impugned by filling an appeal. The appeal, as indicated earlier, was also dismissed. The appellate court upheld the findings recorded by the prescribed authority. It held that the petitioners failed to established that the accommodation was bona fide seeded for establishing their sons. It also found that the shop was in a dilapidated condition but the petitioners failed to establish that they had sufficient means to demolish and reconstruct the building as in the estimate prepared by one J.K. Sharma, cost which was likely to be incurred in demolition of the building, was not included and thus Rule 17 of the Rules was not complied with- It was observed that the amount shown to be deposited in the pass-book of A.W. I Raees Ahmad, son of Zafar Hussain was sufficient only for raising of walls and for putting up a roof over the walls.;