- (1.) Present writ petition in question has been filed by petitioner questioning the validity of the order passed by Prescribed Authority dated 15.5.2006 allowing application for release of premises in question under section 21(1)(a) of U.P. Act No. XIII of 1972 moved by landlord and order of its affirmance in Appeal dated 24.8.2006, by Additional District Judge, Court No. 8 Varanasi. Brief background of case as is reflected that Narain Krishna Bhagwat and others, respondents 2nd set filed release application under section 21(1)(a) of the Act being PA Case No. 41 of 2002, Narain Krishna Bhagwat and another v. Bhairo Prasad and others for the release of the shop in question situated in House No. 17/10 Mohallah Laxman Joshi Gali Ratan Phatak Varanasi. Aforesaid release application was filed with the allegations that applicants-opposite party-2nd set are owner and landlord of House No. 17/10 Mohallah Laxman Joshi Gali Ratan Phatak Varanasi and in Gali, there is one shop wherein Late Mukund Sardar was tenant at the rate of Rs. 15/- per month which subsequently enhanced to Rs. 17/- per month with effect from 1.6.1975; that after the death of Mukund Sardar opposite party 1st set became joint tenant whereas in the shop only Bhairo Prasad, opposite party No. 1 is sitting and only he is in possession; that since the application No. 2 Subhash Narain Bhagwat, is about 21 years old but on account of his being unemployed, he is not getting married, inasmuch as he wants to do business and for that he has experience that the need of the applicants is bona fide and pressing and O.P. Set No. 1 has got two shops in House No. K19/1-A Mohallah Uchawa Gali, Varanasi City wherein they can do business that repeatedly opposite party 1st set were told to vacate the shop but they refused to do so hence release application is filed. In the said proceeding petitioner filed his objection, (paper No. 19/Ga dated 10.3.2003), denying the contents made in the release application except ownership landlord ship and his tenancy. The aforesaid objection was filed with the allegations that he is doing business as sole tenant of the shop in question and the opposite party 2nd set and 4th set have got no concern with the tenancy of the shop in question nor they claimed tenancy right and he is paying rent to the landlord; that the release application was not filed with the consent of the opposite party 2nd set, as such it is defective; that no rent is due against the opposite party No. 1 and notice dated 28.6.2002/1.7.2002 was given with totally incorrect facts against which reply was sent through Counsel; that the applicants with the mala fide intention have filed suit No. 76 of 2002 Narain Krishna Bhagwat and another v. Bhairo Prasad and others in the Court of Judge, Small Cause, Varanasi with totally incorrect allegations wherein opposite party No. 1 deposited entire amount alongwith the interest cost of the suit, as required under section 20(4) of the Act before first date of hearing; that since the applicant No. 2 is not unemployed, rather he is carrying of general merchant in the shop situated in ground floor of House No. 17/10 Mohallah Laxman Joshi Gali Ratan Phatak Varanasi in the name and style Prakash Stores, and apart from that he also does the computer work of Janma Kundali etc. besides he carries on business of Pitambari Super Shining Powder which he himself supplied and also got it done, gets handsome amount and he himself refused to marriage for the reasons best known to him that since the applicant No. 2 is already doing business, hence there is no need to start the business; that the need of the applicants is neither urgent pressing or bona fide that the House No. 17/10 Mohallah Laxman Joshi Gali Ratan Phatak Varanasi does not belong to opposite parties nor they have any concern with that; that the present case is not the first case rather prior to that in respect of the shop in question, another P.A. Case No. 90/85, Krishna Vinayak Bhagwat v. Bhairo Prasad and others filed in the Court of Additional Civil Judge/Prescribed Authority Varanasi with totally incorrect allegation and upon contest by the O.P. No. 1 the said P.A. Case was dismissed that the applicants filed present case concealing the aforesaid case; that there are three shops in House No. 17/10 Mohallah Laxman Joshi Gali Ratan Phatak Varanasi, first 2-door shop is under the tenancy of Ram Nihore Halwai and the 3rd shop is in possession of Narain Krishna Bhagwat, wherein he carries on the business of General Merchant and at present applicant No. 2 is doing business therein; that behind the aforesaid shop of the applicant No. 2 there is big hall and dallan, which they used for Tent House in the name and style Firm Subh Mangal Company and they are giving tent, utensils, Dari, Chandani etc. on rent that on the first floor also, there is a big dallan where Sita Ram Charan Bhagwat, Kundaliq Bhagwat were running Sri Krishna Sangeet Maha Vidyalaya which is now closed and the said accommodation is vacant, which is available to the applicants. It was further alleged that the shop in question is the only source of income of the opposite party No. 1 and his family members; that between Opposite party No. 1 and Opposite Party No. 4 Smt. Chameli Devi it has been agreed that the opposite party No. 1 shall remain tenant and from his income, the family members will be looked after and in House No. K 19/1-A, Smt. Chameli Devi, opposite party No. 2 shall keep tenant and she also reside therein; that she will take the rent which will be their source of livelihood; that the shop in the ground floor of said house, one Munni Lal is tenant, opposite party No. 4 is residing in the first floor and in the second floor, Satya Dev and Nathu Sardar are tenants apart from said house, uncle of O.P. No. 1 does business of Halwai by keeping the Chowki, as such no vacant accommodation is available to the opposite party No. 1 in the said house; that either Smt. Chameli Devi or Anno Yadav has got no concern with the tenancy of the shop in question or its income; that the applicants have neither got bona fide, pressing and genuine need nor the release application has been filed with the correct allegations, as such the release application is liable to be rejected. In support of their respective cases, both the parties filed affidavit evidence and documentary evidence. The respondents-landlords filed affidavit of applicant No. 1 (paper No. 29/Ga) dated 20.8.2004, affidavit (paper No. 30/Ga) of applicant No. 2 dated 20.8.2004 against which petitioner filed his counter-affidavits (paper No. 46/Ga) dated 4.11.2004 and (paper No. 47/Ga) respectively, against which applicant No. 1 filed his affidavit (paper No. 52-C) dated 1.12.2004 and applicant No. 2 filed his affidavit (paper No. 53-C) dated 1.12.2004 respectively. The petitioner also filed his own affidavit dated 2.12.2004 (paper No. 50/Ga) in support of his case, against which Narain Krishna Bhagwat, landlord filed his affidavit (paper No. 63/Ga) dated 3.12.2004. In support of his case, petitioner got affidavit of witness Sri Raj Kumar Yadav filed as affidavit evidence (paper No. 51/Ga) dated 2.12.2004 against which Narain Krishna Bhagwat filed his affidavit (counter)- dated 3.12.2004 (paper No. 64/GA). Against which, petitioner filed his affidavit (rejoinder) dated 10.1.2005. The petitioner filed his own affidavit dated 22.8.2005 (paper No. 70/GA) alongwith the agreement entered into between Smt. Chameli Devi and Bhairo Prasad, petitioner dated 20.6.1977, alongwith affidavit dated 22.8.2005. Petitioner-tenant already filed 12 documents alongwith list (paper No. 39/Ga) on 4.11.2004, which were duly proved by the petitioner through his own affidavit dated 29.8.2005. Against the aforesaid affidavit of the petitioner dated 29.8.2005; Narain Krishna Bhagwat also filed his affidavit (counter) dated 4,2.2006 against which petitioner filed his affidavit (rejoinder) dated 19.4.2006. During the pendency of the case before the Prescribed Authority petitioner moved application (paper No. 58/Ga) for issue of Commission for local inspection of the House No. 17/10 Mohallah Laxman Joshi Gali Ratan Phatak Varanasi for ascertaining the availability of the accommodation to landlord and against which landlord filed their objection (paper No. 59/Ga) but the Prescribed Authority wrongly and illegally rejected the said application vide its order dated 17.2.2005. Thereafter release application in question was considered and allowed by the Prescribed Authority finding need of the landlord to settle his son to be bona fide one and on comparative hardship front also finding has been returned in favour of landlord. Aggrieved against the same petitioner preferred appeal. Said appeal in question has been rejected vide order dated 24.8.2006. At this juncture present writ petition in question has been filed.
(2.) Pleadings inter se parties have been exchanged and thereafter present Writ petition in question has been taken for final hearing and disposal with the consent of the parties.
(3.) Sri Ajay Kumar Singh, Advocate contended with vehemence that in the present case both the Courts below have erred in law while deciding the question of bona fide need and even on comparative hardship front there was perversity and the application for spot inspection ought to have been allowed in the facts of the case, as such writ petition in question deserves to be allowed.;