A.B. Srivastava, J. - (1.) THIS writ petition is directed against an order dated 21.3.1994 (Annexure 7 to the petition) passed by the respondent No. 1, IVth Additional District Judge, Jhansi, whereby accepting an appeal by the respondents No. 3 to 5 (hereinafter referred as the tenants), he directed the petitioner landlord (hereinafter referred as the landlord) to deliver possession of one more shop 10 x 15 ft. size, in addition to one shop of the same size already delivered to the said respondents A prayer has also been made to quash the miscellaneous proceedings purporting to be under Section 151 C.P.C. pending before the respondent No. 2, the Prescribed Authority, Jhansi, containing the prayer which was ultimately allowed by the aforesaid order dated 21.3.1994. In this writ petition the caveator - -respondents No. 3 to 5 have put in their appearance through their counsel Shri S.S. Dayal and have filed counter affidavit The other side has filed supplementary and rejoinder affidavits The petition is thus being disposed of at admission stage.
(2.) BRIEFLY stated, the facts relevant are that in Mohalla Sipn Bazar, Jhansi, the landlord owned shops bearing Municipal Nos 660, 661, 662, 663 and 664 While shops Nos 660, 661 and 662 were under tenancy of three different tenants, shops No. 663 and 664 were under the tenancy of the tenants of this case The tenant of shop No. 661 vacated it voluntarily whereas in respect of the shop No. 660, 662, 663 and 664, he filed three sets of release applications under Section 21 of Act 13 of 1972 (hereinafter referred as the Act), on the ground that shops had become dilapidated and he required the same for personal occupation, by demolishing the same, and constructing a hotel and restaurant, to settle his son in the said business These release applications were contested by the respective tenants During the course of the proceedings the landlord also filed an undertaking to provide newly constructed shops of 10 x 10 ft. size to the tenants at the site of their existing shops The learned Prescribed Authority by his order dated 28.10.1989 found the need of the landlord genuine and also taking note of the undertaking allowed the release application, in respect of the shops No. 663 and 664, with which we are concerned in the present writ petition, with a direction to the tenants to deliver possession to the landlord within one month, and to the landlord to construct and provide in place of the said shops, newly constructed shop of 10 x 10 ft. separately The two other release applications are also stated to have been allowed with similar orders. The aforesaid order dated 28.10.1989 was challenged by the tenants in appeal under Section 22 of the Act before the District Judge, Jhansi Before the appellate court the landlord filed a modified undertaking enhancing the size of the shops to be provided to the tenants to 10 x 15 ft. While dismissing the appeal by order dated 11.12.1991 (Annexure '4' to the petition) the District Judge modified the order of the Prescribed Authority to the effect that possession will be handed over to the landlord within one month and the landlord shall hand over possession of the newly constructed shop of the size 10 x 15 ft. at the place of the accommodation in question to the tenants within two months thereafter. The affidavit filed by way of modified undertaking was to form part of the operative order. A writ petition before this Court and S.L.P. before the Supreme Court filed by the tenants against the said order were dismissed.
(3.) THEREAFTER possession was taken by landlord from its tenants as well as the tenants of other shops. Since the landlord failed to construct the shop and deliver possession to the tenants as ordered by the appellate court in its judgment dated 11.12.1991, application under Section 24 of the Act was filed by the tenants with a prayer that the landlord be punished for contempt of Court, they be awarded damages and also possession of the shop in question through the help of the police. In the said application the plea taken by the landlord was that on account of injunction obtained by his son in a partition suit he could not make the required construction. Repelling the said plea the Prescribed Authority directed the landlord to construct the shop within two months and deliver possession. This order was affirmed in appeal by the District Judge. A Writ Petition No. 41932 of 1992 filed in this Court against the said order and proceedings also failed vide order dated 5.11.1992 (certified copy on record). Consequently the landlord constructed a set of shops at the site of the already demolished shops. An application was thereafter moved by the tenants before the Prescribed Authority complaining that the landlord was committing breach of the undertaking and he may be directed to comply with the same. In reply the landlord stated that he has already delivered possession of one shop each 10 x 15 ft. in lieu of the shops taken from the other tenants and was ready and willing to deliver one shop of the same size to these tenants also but they were themselves not taking possession.;