S.N.Saxena - (1.) THE petitioner, by means of this writ petition, has prayed for issuance of a writ of certiorari, order or direction in the nature of certiorari quashing the impugned order d3ted 6th October, 1993, passed by the XII Additional District Judge, Moradabad, a copy of which is Annsxure 9 of the writ petition (wrongly mentioned as Anuexure 7 at page 21 of the writ petition),
(2.) THE petitioner is a tenant in the shop in dispute. His landlord was respondent no. 2 Krishna Autar Agarwal, who alone had moved application for release of the shop in dispute before the Prescribed Authority on the ground that it was in a dilapidated condition and he wanted to get it demolished and, thereafter, reconstructed-vide Annexure 1 which is a copy of the said application. ln para 1 of Annexure No.1 Krishna Autar Agarwal, the sole landlord, pleaded that he was the sole owner of the disputed shop. He had contended that he had submitted a plea for the reconstruction of the shop to Municipal Board, Hasanpur, and was also possessed of means sufficient for its reconstruction after getting it demolished. THE release application was contested by the tenant who now is petitioner before this Court on various grounds. He contended that the contention of the landlord, that the shop was in a dilapidated condition, was wrong, that it did not require demolition and reconstruction and that the landlord had moved the application for release simply to pressurise him for enhancement of rent. Both the parties filed affidavits before the Prescribed Authority who vide his judgment and order dated 6-7-1992 dismissed the release application. Annexure No 7 is a copy of the said judgment and order. The landlord preferred appeal which was decided by the learned XII Addi. District Judge, Moradabad, who allowed the same and set aside the judgment and order of the Prescribed Authority dated 6-7-1992. He further directed tenant Bankey Lal to give vacant possession of the shop in dispute to respondent no, 2 within 45 days of the order. Feeling aggrieved, the tenant preferred this writ petition. It was contended for the petitioner that material change had taken place during the pendency of the appeal before the learned Addl. District and Sessions Judge due to which the appeal should have been dismissed and that in any view of the matter this writ petition is liable to succeed. It was contended for the petitioner that during the pendency of the proceedings between the parties before the learned Addl District and Sessions Judge, a family settlement had taken place between the co-owners of the properties belonging to the family of Krishna Autar Agarwal according to which his son Dinesh Kumar had become the sole owner of the shop in dispute due to which release order could not be passed by the lower appellate Court in favour of Krishna Autar Agarwal as he had ceased to have any concern whatsoever with the shop.
(3.) LEARNED counsel for the petitioner relied upon a copy of a notice dated 7-8-1993 which was served by laudlord Krishna Autap Agarwal upon tenant Bankey Lal informing him that a family settlement had taken place in his family on 2-8-1993 according to which all the property owned by the co-owners had been divided amongst them and in terms of the same, the shop in dispute had fallen in the exclusive share of his son, Dinesh Kumar. He further directed Bankey LaS to pay rent of the shop in dispute for the period subsequent to 2-8-1993 to his son, Dinesh Kumar He very clearly disclosed in the last line of the said notice that he had ceased to be the owner and landlord of the shop which was in the tenancy of Bankey Lal. It was also contended for the petitioner that Dinesh Kumar had not submitted any construction plan of the shop in dispute to the Municipal Board, Hasanpur nor he had disclosed that he was possessed of sufficient means for reconstruction of the shop in dispute after demolition, that he thus did not fulfil the requirements of Rule 17 of the Rent Control and Ejectment Rules 1972 ; that the release was claimed on the sole ground that the shop having become dilapidated was to be got demolished and reconstructed by the landlord and that due to the changed circumstances, the order of release of the shop in favour of Krishna Autar Agarwal was liable to be quashed. It also contended forcefully that the learned Addl. District and Sessions Judge, Moradabad was faced with the said difficulty and, therefore, he did not name the person to whom Bankey Lal was to handover vacant possession. For respondents no. 2 and 3 it was argued that the change which had taken place during the pendency of the appeal could not be taken note of as the rights of the parties were to be decided as on the date of the presentation of the release application before the learned Prescribed Authority and Krishna Autar Agarwal, tnerefore, even now was entitled to get possession of the shop in dispute by eviction of appellant Bankey Lal. The argument, however, appeared to be devoid of merits. The proceedings before the learned Prescribed Authority and, thereafter the Court of appeal were of a nature in which changes during the pendency of the release application and the appeal against the order of the Prescribed Authority could not be ignored by this Court. Evidently the landlord namely Krishna Autar Agarwal had ceased to have any concern with the shop in dispute and therefore no order requiring the tenant to handover the possession of the shop to him could be validly pasted by any Court of law. Krishan Autar Agarwal, thus, was faced wi'h a great difficulty and that Is why in para 22 of his counter affidavit filed in this petition, he raised a false plea that inspite of the family settlement, he continued to be the onwer of the shop in dispute and his son was given a limited right to collect and realise the rent only of the shop in dispute. The letter sent by him to Bankey La! in this behalf has already been discussed above in which he has very clearly disclosed that he had ceased to have any concern at all with the shop in dispute and his son Dinesh Kumar in terms of the family settlement had become the owner thereof. He (Dinesh Kumar) consequently was the sole landlord of the petitioner (Bankey Lal).;