- (1.) PRAKASH Krishna, J. The present writ petition relates to shop Nos. 115 and 116 Maam Road, Bulandshahr (hereinafter referred to as disputes shops ). The writ petition arises out of release proceedings in respect of the disputed shops initiated by Jagdish Saran Garg (now dead) against heirs of Gopi Chand who was the original tenant and he left behind him the opposite parties No. 1 to 5 in the release application. The landlord claimed that he needs the disputed shop to establish his son Suresh Chand who is selling medicines of M/s. Baidyanath as agent. The petitioner Ved PRAKASH was not impleaded as one of the opposite parties in the release application. He filed an application for his impleadment claiming that he is co-tenant of the disputed shops. The petitioner was permitted to be impleaded. The case of the landlord was that Ved PRAKASH, the petitioner, has no locus standi to intervene in the matter and he has been set up by the heirs of the erstwhile tenant Gopi Chand. According to the landlord, respondents herein, the heirs of Gopi Chand who have inherited the tenancy rights, are not doing any business in the disputed shops, have set up the petitioner.
(2.) THE petitioner in reply claimed co-tenancy right in the disputed property on the allegation that his father late Chiranji Lal was a co-tenant alongwith late Gopi Chand and both of them were carrying on the business in the disputed shop in the partnership. He submitted that earlier one Madan Lal was partner of Gopi Chand and thereafter Shri Chiranji Lal, adoptive father of the petitioner became partner in the Firm. THE rent receipts were being issued in the name of Gopi Chand but, as a matter of fact, both the partners were tenant. THE allegation of bona fide need of the landlord was also contested. The Prescribed Authority found the need of the landlord as bona fide and genuine. The finding of the comparative hardship was also recorded in favour of the landlord and consequently, it allowed the release application by judgment and order dated 31-10-1995. Feeling aggrieved against the aforesaid order, only the petitioner filed an appeal under Section 22 of the U. P. Act No. 13 of 1972 being Rent Control Appeal No. 24 of 1995. The heirs of Gopi Chand did not challenge the aforestated release order passed by the Prescribed Authority. The Appellate Court under point No. 3, on the basis of the evidence on record found that the petitioner was not a tenant. The appellate Court found that Gopi Chand was the sole tenant of the shop in question and even if it is accepted that Chiranji Lal and thereafter Ved Prakash, (petitioners), were taken as partner in the business. The petitioner or Chiranji Lal could not became co-tenant in the shop in question. It was not even pleaded by the petitioner that he was made co-tenant by the landlord. Even if Chiranji Lal entered into partnership with Gopi Chand, that would not create any right, title or interest in the tenancy rights, as was found by the judgment dated 31st of August, 2006. Feeling aggrieved against the aforesaid judgment and order the present writ petition has been filed. Heard Shri A. K. Mehrotra alongwith Shri Nishat Mehrotra, the learned Counsel for the petitioner and Shri Y. S. Bohra, the learned Counsel for the respondent. The parties have exchanged their pleadings and they jointly agreed that the matter may be heard and decided finally, therefore, the matter was heard and is being decided finally at the admission stage itself. The only point urged by the learned Counsel for the petitioner is that even on the findings as recorded by the Court below that the petitioner has been in occupation of the disputed shop may be as partner of Gopi Chand, the application for release under Section 21 of the U. P. Act No. 13 of 1972 was not maintainable and remedy, if any, was to initiate proceedings for declaration of vacancy or filing of a suit under Section 20 of the Act on the ground of sub-letting.
(3.) TO appreciate the above contention it is apt to notice the background facts of the case relevant to the issue involved in the present writ petition and the findings thereon. It is common case of the parties that Gopi Chand was the tenant of the disputed shop. The case of the petitioner is that Gopi Chand subsequently made Madan Lal as partner in the business and that Gopi Chand and Madan Lal jointly carried on their business from the disputed shop. Subsequently, Madan Lal got himself separated from the joint business and in his place Gopi Chand had taken Chiranji Lal, adoptive father of the petitioner, in the business. Chiranji Lal and Gopi Chand jointly carried on the business from the disputed shop and their names are recorded in the electric connection etc. After the death of Gopi Chand, Chiranji Lal continued to carry on the business in the disputed shop with the sons of Gopi Chand jointly and now the petitioner is carrying on the business from the disputed shop. The further case is that although rent receipts were being issued in the name of Gopi Chand but there is no rent receipt either in the name of Madan Lal or Chiranji Lal. After the death of Gopi Chand his sons carried on the business of Ata Chakki (flour mill) in the disputed shop. In support of the aforesaid plea, the petitioner produced receipts issued by the Electricity Department and the electric bill dated 24-7- 1990 wherein name of Madan Lal and Gopi Chand finds place. Similarly, in other bills dated 12-10-1988, 14-4-1985 and 11-10-1982 the name of Madan Lal and Gopi Chand are mentioned in the electric bills. In the municipal assessment name of Gopi Chand and Ved Prakash is recorded in the assessment year 1986 to 1991.;