Hon'ble Rakesh Tiwari - (1.) HEARD learned counsel for the parties and perused the record.
(2.) THE facts of the case in brief are that a release application under Section 21 (1)(a) of U.P. Act No. XIII of 1972 was moved by the landlord respondent in the Court of Civil Judge (Senior Division)/Prescribed Authority, Baghpat. It was registered as P.A. No. 2 of 2008. THE application was contested by the petitioner tenant by filing written statement denying the plaint allegations. After exchange of affidavits, documents were filed by the parties and an application for appointment of Civil Court Amin was also moved by the petitioner which was allowed. THE Amin after inspection filed his report alongwith map of the spot which is appended as Annexure 4 to the writ petition. THE Prescribed Authority allowed the release application holding that the alleged shop under the tenancy of the petitioner is infact a garage; that need of landlord was bona fide and he would suffer greater hardship if the alleged shop/garage is not released in his favour and that the tenant had three other shops in his possession where he is doing his business apart from the alleged shop in dispute. Aggrieved by the order and judgment dated 13.8.2010 passed by the Prescribed Authority the petitioner preferred rent control appeal No. 39 of 2010 before the appellate Court under Section 22 of the U.P. Act No. XIII of 1972. He also filed certified copies of the assessment registers of two residential houses of respondent and voter list of district Meerut alongwith application dated 15.11.2010 under Order XLI Rule 27 C.P.C. In rebuttal, respondent filed the voter list of district Baghpat. and voter list of Meerut. The appellate Court also after hearing parties dismissed the appeal vide judgment and order dated 18.3.2011. The petitioner has then preferred this writ petition challenging the validity and correctness of the two orders aforesaid dated 13.8.2010 passed by the Civil Judge (Senior Judge)/Prescribed Authority, Baghpat in P.A. No.2 of 2008 (Kunwar Khusro Irshad v. Haji Ansar Ahmad) as well as the judgment and order dated 18.3.2011 passed by Additional District Judge (Special), Baghpat in Rent Control Appeal No. 39 of 2010 (Hazi Ansar Ahmad v. Kunwar Khusro Irshad) and praying for their quashing.
(3.) LEARNED counsel for the petitioner relied upon the judgment passed by appellate Court and has argued that earlier this shop was the in tenancy of one Tufail Ahmad whose name is shown in the house assessment register list of 1967-68 (Paper No. 69-K1) wherein the shop in dispute is registered as shop in the property No. 238/1. He has contended that the nature of the property in dispute was a shop and never a garage as is established from the documents filed by him. Regarding comparative hardship he had submitted that if he is evicted from the shop in dispute his family will suffer greater hardship as without the business in the shop in dispute it would be very difficult for him to maintain his family which is quite large having sons and grand sons. LEARNED counsel for the petitioner then relied upon the map appended with the report of Amin as annexure 4 to the writ petition and has argued that width for entry in the shop is 7 ft. 7 inches which is too narrow for parking a car in the shop in dispute in which the tenant is engaged in business of sale of polythene bags, ropes and other such miscellaneous items; that the said shop is part of the Haveli of the landlords which has an open space in front of it where the landlord can park his car and the landlord has other properties which also can be used for parking, as such the need of the landlord for using the shop as garage is not bona fide. Per contra, Sri Pramod Jain, counsel for the respondent argued that from the documents filed before the Court below in the form of municipal records it is apparent that the alleged shop is situated in a garage. The landlords are descendents of nawabs and the ladies of the family are pardanasheen women; that a perusal of the map appended with the report of the Amin would show that earlier there were three doors in the garage which were used by the ladies to enter to their respective residential portions in the Haveli after the cars were parked in the garage and this fact is apparent from record (map) and that even today one door D-1 out of the three doors in the garage/alleged shop is still used for entrance in the residential portion of the Haveli.;