B.K.SINGH,J - (1.) THE petitioner, who is a tenant of a shop owned by contesting respondent Nos. 3 to 7, has preferred this writ petition challenging the order dated 14.12.1988 passed by Prescribed Authority, Meerut, by which he released the shop in the tenancy of the petitioner and against the judgment and order dated 30th July, 1990, by which the learned Additional District Judge rejected the petitioner's appeal and confirmed the order passed by the Prescribed Authority.
(2.) I have heard the learned Counsel for the petitioner as well as the learned Counsel appearing on behalf of the contesting respondent Nos. 3 to 7. The learned Counsel for the petitioner has submitted that the Prescribed Authority as well as the learned Additional District Judge have committed material illegality in recording a finding that the need of the contesting respondent Nos. 3 to 7 was bona fide and that the shop in question would meet the need which was set up by the owner landlords. It was also urged by the learned Counsel of the petitioner that the contesting respondents have also been carrying on business of money lending. A such, their alleged need of carrying on business in the shop in question is wholly against their own case. According to the learned Counsel the business of sale of fodder is already being carried on in the adjoining shop and by adding another shop to it the quantum of business is not likely to increase. The learned Counsel further pointed out that the application for release of the accommodation was moved within three years from the date of purchase of the shop in question. The first Proviso to Section 21(1)(a) of U.P. Act No. XIII of 1972 (hereinafter referred to as the 'Act') prohibits the entertainment of an application under Section 21(1) (a) of the Act within three years from the date of purchase of the shop. That being so the Courts below have illegally exercised jurisdiction in respect of the shop in tenancy of the petitioner. The said application was, therefore, liable to be dismissed merely on this ground. The learned Counsel for the petitioner has further submitted that the petitioner had purchased two shops, but, on account of pressing demand of the person, from whom the loan had been taken, the petitioner had to sell shop No. 327 for the same price for which it had been purchased. As regards shop No. 326 is concerned, a litigation is going on, but the petitioner has not been successful. The result is that in case the petitioner is evicted from the shop in question, he shall be losing the source of livelihood and in this regard the Courts below have wrongly held that the comparative hardship would be more to the landlord than to the petitioner. Lastly, the learned Counsel of the petitioner has submitted that in case his submissions do not find favour with this Court, then some time may be granted to the petitioner to vacate the shop in question.
(3.) THE learned Counsel of the respondents has submitted that the Courts below have, after considering the evidence led by the parties, come to the conclusion that the owner landlords' family is a large family and to meet the requirements of their livelihood the shop in question was needed. This need was held by the Courts below as bona fide. On assessment of the comparative hardship also, the Courts have taken into consideration that the petitioner purchased two shops in the neighbourhood i.e., shop Nos. 326 and 327. The petitioner sold away shop No. 327 for making gain and it is wrong to say that the shop was sold at the same price for repaying the loan. The learned Counsel has submitted that, in any case, the findings on the point of need as well as comparative hardship are factual in nature and since the Courts below have concurrently held that the need of the landlords is bona fide and comparative hardship would be more to him, this Court in exercise of writ jurisdiction seldom interference. The learned Counsel has further submitted that the ground about the petition under Section 21 (1)(a) of the Act being filed within three years and that it is barred by the first Proviso to Section 21 (1) (a) of that Act has not been taken in the writ petition. As such, the ground which has not been taken in the memo of the writ petition cannot be permitted to be urged. He has further submitted that this ground is based on facts about the date of purchase and about the date of filing of the writ petition. As such, when such facts have not been mentioned, then this ground cannot be permitted to be raised at the stage of writ jurisdiction. The learned Counsel has further submitted that this view of the learned Counsel of the respondents is also not tenable in view of this Court's decision reported in 1979 ARC 178 : 1979(2) RCR 533(All), Nanda Ballabh Gurnani v. IVth Additional District Judge, Nainital and another. The Court, in this case, considered the first proviso and held that the word 'entertain' does not mean either 'receive' or 'accept'. It means to proceed to consider on merit to adjudicate. In this case, the decision of the Prescribed Authority was rendered long after the expiry of three years from the date of purchase and as such this submission of the learned Counsel of the petitioner does not have any legal significance. As regards the request for grant of further time, the learned Counsel has submitted that it should only be granted in case the petitioner furnishes undertaking.;