Narendra Kishore Mehrotra, J. - (1.) THIS is a petition for issuing a writ in the nature of certiorari quashing the impugned judgment and order dated 31.5.2005 passed by the opposite party No. 1, the District Judge, Barabanki as contained in Annexure No. 1 to the writ petition. Opposite party No. 2 Waris Rasheed Qidwai is the landlord of the disputed house known as 'Naseman' bearing Municipal No. C/5 -R (A), Civil Lines, Nawabganj, Near Roadways Bus Station, Barabanki. The petitioner No. 2 is the tenant in this disputed premises and is running a School in the name of the petitioner No. 1. Opposite party No. 2 Waris Rasheed Qidwai who was the Secretary General in Standing Conference of Public Enterprises, an autonomous organization recognized by the Government of India, retired from the said post on 31.3.1992 and moved an application under section 21(1)(a) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter to be referred as 'Act') for the release of the building on the ground of his bona fide need in October, 1993. This release application was contested by the petitioners by filing written statement. The Prescribed Authority dismissed the application holding that the release application made by the opposite party No. 2 is not maintainable being hit by section 21(8) of the Act and further need was not bona fide and genuine. The opposite party No. 2 filed an appeal on 12.8.1999. This appeal was allowed by holding that the need of the landlord is not only genuine but also bona fide. It was held in appeal that the release -application was not barred by section 21(8) of the Act. On comparison of the respective hardship of the petitioner, it was held that the opposite party No. 2 would suffer greater hardship than that of the petitioners in case the release -application is rejected. The Appellate Court granted time to vacate the premises by 30.5.2000. The petitioners filed Writ Petition No. 25 (R/C) of 2000. The writ petition was allowed upholding the bona fide and genuine need of the landlord and maintainability of the application but at the same time, this Court held that the opposite party No. 2 had retired from a very lucrative, responsible and high post, he can very well arrange for alternative accommodation of residence in small town like Barabanki. The landlord, the opposite party No. 2 filed a Special Leave Petition (Civil) No. 4092 of 2000 and this Special Leave Petition was got dismissed as withdraw on 18.7.2000. The opposite party No. 2 thereupon filed a review petition before this Court but this review petition was dismissed. The opposite patty No. 2 being aggrieved against the order passed in Review Petition No. 230(W) of 2000 again filed a Special Leave Petition and it was converted into a Civil Appeal No. 6595 of 2001. This appeal was allowed by the Supreme Court on 1.9.2004 and the case was remanded to this Court to re -hear the review petition on the question of comparative hardship. It was observed that this Court if, inclined can remit the matter to the Appellate Court for assessing the comparative need of the parties. After remand, the review petition was heard in this Court and the matter was remitted back to the Appellate Court namely; the opposite party No. 1, the District Judge, Barabanki to decide the appeal afresh only on the point of comparative hardship. The questions that the landlord has bona fide need and the application is not hit by section 21(8) of the Act, were not permitted to be re -opened. It was directed that the Appellate Court will decide the matter within four months from the date of receipt of the copy of the judgment.
(2.) AFTER the judgment in review petition on 23.12.2004 by this Court, the opposite party No. 2, the landlord made an application for clarification/modification of the judgment dated 23.12.2004 passed in the review petition. During the pendency of the application for clarification, the opposite party No. 2 filed a supplementary affidavit annexing the copy of the supplementary affidavit filed before the Supreme Court and the photographs showing the constructions raised by the petitioners over the land acquired in pursuance to the permission accorded by the Prescribed Authority. The petitioners filed objections by annexing the building plan of accommodation in dispute prepared by an Architect on Scale as Annexure No. 17 -A as well as the building plan of the construction already existing and the constructions raised by the petitioners over the land acquired by them. This application for clarification was disposed of by this Court on 9.2.2005. It was clarified by observing that this Court did not express any opinion on the point of comparative hardship and directed that the matter be decided by the Appellate Court and it was also directed that the observations made in the last but one Para of the Judgment dated 23.12.2004 should not be construed to mean that this Court has expressed any opinion on that point. During the pendency of the appeal after the remand, the petitioners moved an application for issuing a commission but the Appellate Court dismissed this application on 16.5.2005. The petitioners moved an application for review of the order dated 16.5.2005 but this review application was also dismissed. The opposite party No. 1 ultimately allowed the appeal after considering the comparative hardship of the parties vide impugned judgment dated 31.5.2005 (Annexure No. 1). It is against this judgment; this writ petition has been filed. The latest judgment of this Court is the judgment in Review Petition No. 230(W) of 2000 dated 23.12.2004 (Annexure No. 9) and certain observations were made by this Court on the application for clarification moved by the opposite party No. 2. The relevant portion of the judgment of this Court in Review Petition No. 230(W) of 2000 is as follows: It is now an admitted fact that the college has constructed six rooms, three on the ground floor and three on the first floor on a piece of land, acquired by it. Whether this accommodation is sufficient enough for housing, the entire college is in dispute. The landlord says that this accommodation is sufficient enough for shifting the entire school, whereas the tenant says that it is not. No doubt, if this subsequent acquisition by the tenant is found to be adequate enough for shifting the school to it, the request of the landlord for release of the accommodation may be accepted, but if this acquisition by the tenant is not found to be sufficient enough, the request of the landlord for release of the entire accommodation may not be accepted. This Court is of the view that it would be proper if the matter is remitted back to the Appellate Court to consider the impact of subsequent events, relating to the acquisition of plot or building by the tenant, on the point of comparative hardship. The Court is of the view that these subsequent events are sufficient enough to review order dated 20.7.2000 to do complete justice between the parties. So, this review petition is allowed and the judgment and order dated 20.7.2000 is set aside and the writ petition is disposed of with a direction to the Appellate Court to decided the appeal afresh, only on the point of comparative hardship, in the light of the alleged subsequent events referred to above, and also in the light of this judgment. He will consider the same after giving reasonable opportunity of hearing to both the sides. The question that the landlord has a bona fide need and the application is not hit by sub -section (8) of section 21 of U.P. Act No. 13 of 1972 shall not be reopened. The Appellate Court will decide the matter within four months from the date he receives the copy of this judgment. The parties are directed to appear before the Appellate Court on 12.1.2005, and place the material relating to subsequent events. In case, that Court is vacant, the District Judge will transfer the appeal to another Judge.
(3.) AFTER the aforesaid judgment, another order was passed by this Court on 9.2.2005 (Annexure No. 22) on the clarification application. The relevant portion of this order is as follows: This much is clear from the judgment and order dated 23.12.2004 that this Court remitted the matter to the Appellate Court for considering the question relating to the comparative hardship afresh, in view of the subsequent events as mentioned in the judgment or in the pleadings of the parties. This Court did not express any opinion on the point of comparative hardship and left the matter to be decided by the Appellate Court. It was also not considered by this Court as to whether considering the nature of accommodation in question and other aspects of the matter, purpose could be served only by release of entire accommodation or part thereof. So, the observations of this Court in the last but one paragraph as underlined above on page 1, should not be construed to mean that this Court has expressed any opinion on that point. The Appellate Court will not be influenced by those observations in deciding the matter referred to it.;