Sibghat Ullah Khan, J. - (1.) THIS writ petition was allowed by me on 28.4.2004 in the absence of learned Counsel for tenant -respondent. Thereafter restoration/rehearing application was filed, which has been allowed today. Heard learned Counsel for both the parties.
(2.) THIS is landlord's writ petition. Release application filed by the landlords under section 21 of U.P. Act No. 13 of 1972 against tenant -respondent No. 3 was allowed by Prescribed Authority/J.S.C.C. Gorakhpur on 5.3.1998. Release application had been registered as case No. 44 of 1995. Tenant -respondent No. 3 Jai Dev Gupta filed Miscellaneous Appeal No. 3 of 1998. A.D.J. Court No. 7, Gorakhpur through judgment and order dated 10.10.2003 allowed the appeal. The said judgment of the Appellate Court is under challenge by the landlord in this writ petition. It was stated by the tenant before the Courts below that in another shop belonging to the landlords there was another tenant by the name of Sri Najumuddin, who had been let out the shop in the year 1993, hence the said letting was illegal and landlord should have applied for release in respect of the said shop under section 16 of the Act before the Rent Control and Eviction Officer. Lower Appellate Court accepted the said argument and held that in case such a release application, as suggested by the tenant, had been filed, then the said release application would have been allowed just for the asking, as the other tenant was unauthorized occupant and the landlord would have got a cake walk.
(3.) IN respect of the year of letting of other shop there is some divergence in the case of both the parties. Lower Appellate Court held that the fact that the said shop was let out in the year 1993 was unrebutted. Learned Counsel for the landlord -petitioner has invited my attention to an affidavit of one of the landlords filed before the Prescribed Authority, copy of which is Annexure -3. In the said affidavit it was stated that said shop was let out prior to 1993 when father of the landlords had died and their mother was alive. It may be mentioned here that when release application was filed in the year 1995, father and mother of the landlords had died. Learned Counsel for the petitioner had also pointed out that when release application was filed landlord petitioner No. 1 Raj Kumar had just attained the age of majority and the other two landlords -petitioners were minors. In the release application age of Raj Kumar was shown as about 19 years. In view of this even if the assertion of tenant that the other shop was let out in the year 1993 is taken to be correct, it will not mitigate against the bona fide need of petitioner No. 1, as in the year 1993 he would have been minor aged about 17 years. In this regard reference may be made to S.B. Kevate v. R.D. Lunja : AIR 1999 SC 602.;