SURYA PRAKASH KESARWANI,J. - (1.) Heard Sri M.A. Qadeer, learned Senior Advocate assisted by Sri M.H. Qadeer, learned counsel for the defendant -petitioner and Sri Rajiv Joshi, learned counsel for the plaintiff -respondent.
(2.) Learned counsel for the defendant -petitioner submits as under: - (i)The defendant no.1 Smt. Anwari Begam was the tenant. She died during the pendency of the appeal. She had vacated the premises and thereupon the defendant -petitioner who was defendant no.2 in the P.A. Case No.3 of 2005 before the Prescribed Authority, unauthorizedly occupied the tenanted premises and as such provisions of Section 21 of U.P. Act No. 13 of 1972 were not applicable and consequently, the application filed by the plaintiff - respondent/landlord before the Prescribed Authority itself was not maintainable. The provisions of Sections 12 and 16 were applicable for release, which provides a different forum and authority for adjudication. (ii) The Prescribed Authority passed the order dated Ist January, 2006, which order was recalled by order dated 19.8.2006, yet the Prescribed Authority proceeded to decide the P.A. Case. (iii)The Appellate Court has not recorded any finding on the bonafide need but merely returned finding on the comparative hardship and as such the order of the Appellate Court is legally unsustainable. (iv)The Amendment application of the defendant -petitioner was allowed by the Appellate Court vide order dated 24th December, 2010 incorporating the amendment in the pleadings that six months notice is required under section 21(1) (a) of the Act was not given, yet no finding has been recorded on this point by the Appellate Court. (v)The Appellate Court has wrongly held that the defendant - petitioner (defendant No.2) being an unauthorized occupant has no right to hold the tenanted premises.
(3.) Sri Rajiv Joshi, learned counsel for the respondent vehemently argued as under: - (i)The plaintiff -respondent purchased the shop in question by registered sale -deed dated 16.5.2001 from one Sri Gajendra Prasad Sharma and in the said shop Smt. Anwari Begam was continuing as a tenant. After expiry of three years, a notice was given to her on 2nd December, 2004, which was returned by refusal. Consequently, second notice dated 6th December, 2004 was sent which was not received back and yet the plaintiff -respondent issued a third notice dated 4.1.2005 to the defendants which was duly served on them on 10.1.2005. The case was filed before the Prescribed Authority on 1.7.2005. Thus, despite the fact that there was no requirement of giving any notice for moving an application under section 21(1)(a) of the Act after three years of purchase of the shop in question, yet the notices were duly given by the plaintiff -respondent, which were duly served upon the defendants. In the case of Anwar Hasan Khan Vs. Mohd. Shafi and others (2001) 8 SCC 540 (Para -10), Hon'ble Supreme Court laid down the law that there is no requirement to give six months notice if the release application under section 21(1) (a) is filed after expiry of three years of the purchase of property. (ii) In paragraph -1 of the release application, the plaintiff - respondent has clearly stated that he is the owner and landlord of the shop in question, which fact was admitted in her written statement dated 19.4.2008 by the defendant no.1 (Smt. Anwari Begam) who was the tenant. Thus, it is undisputed that the plaintiff -respondent is the owner and landlord of the shop in question, while the defendant no.1 Smt. Anwari Begam was the tenant. That apart during the pendency of appeal the defendant no.2 who is the petitioner in the present writ petition and son of the defendant no.1 has filed a substitution application after the death of her mother, which was allowed by the Appellate Court and the name of the petitioner -defendant was substituted. However, in the writ petition, the petitioner -defendant has not disclosed whether he has filed the writ petition as a tenant or an illegal occupant. (iii)If the writ petition has been filed in the capacity as tenant by the petitioner -defendant no.2 by entering into the shoes of the defendant no.1 then the entire controversy is concluded by finding of fact recorded by Prescribed Authority as well as Appellate Court on the point of bonafide need as well as comparative hardship. The plaintiff -respondent has purchased the said property for doing business and he is in bonafide need of the said shop for the reason that adjacent to the shop in question he has taken a shop on rent and has been continuously harassed by his landlord. The restoration application for recall of the order dated 13.1.2006 to proceed ex parte was filed only by Smt. Anwari Begam (defendant no.1) and the said order was recalled by the Prescribed Authority by order dated 19th August, 2006 only with respect to the defendant no.1 (Smt. Anwari Begam) and not with respect to the defendant no.2 (the present petitioner). (iv)The second Amendment application filed by the petitioner - defendant was rejected by the Appellate Court by order dated 2 nd July, 2011, which attained finality. The third application under Order 41 Rule27 for additional evidence moved by the present petitioner was also rejected by the Appellate Court by order dated 25.7.2012, which was accepted by the present petitioner. (v)Sections 12 and 16 of the Act No.13 of 1972 are not applicable in view of the submissions made above and facts of the present case. (vi)The findings recorded by the Prescribed Authority as well as by the Appellate Court are based on consideration of relevant evidences and materials on record. The findings so recorded being findings of fact, no interference can be made in view of the law laid down by Hon'ble Supreme Court in the case of Hindustan Petroleum Corporation Ltd. Vs. Dilbahar Singh, 2014 (107) ALR 697. (vii)In the case of Krishna Kumar Rastogi Vs. Sumitra Devi, (2014) 9 S.C.C. 309, Hon'ble Supreme Court held that the landlord was running his business in a rented accommodation, then it could not be said that he was not in bonafide need of the disputed shop. ;