Sibghat Ullah Khan, J. - (1.) HEARD learned Counsel for the parties. This writ petition was earlier allowed by me on 6.2.2006 without hearing learned Counsel for the respondents, as he had not appeared. Thereafter restoration/rehearing application was filed, which has been allowed today and the writ petition has been restored.
(2.) PROPERTY in dispute is commercial in nature. The original tenant took the property on rent in connection with the business of manufacturing buckets for Rehat (an old outdated device for irrigation drawn by bullocks). The landlady -petitioner in her release application, stated that adjacent to the accommodation in dispute she held a plot of about 135 Sq. yards (containing some fallen down constructions also) and she intended to construct a house over the said plot and the land covered by the tenanted building. Release application was filed by the landlady -petitioner under section 21 of U.P. Act No. 13 of 1972 and was registered as Case No. 9 of 1985. Prescribed Authority Chandausi District Moradabad allowed the release application on 10.11.1987. Prescribed authority himself inspected the accommodation and found that nothing was carried on in the name of business by the tenant from the building in dispute. No manufacturing activity was found. Against the judgment and order passed by the Prescribed authority tenant filed R.C. Appeal No. 39 of 1987. Appeal was allowed by the Xth Additional District Judge, Moradabad on 29.3.1994. The said judgment has been assailed through this writ petition. In my earlier judgment, I quoted paragraph 14 of the judgment of the Appellate Court. The said portion is again quoted below: .........but I summarise that ample evidence has been filed by the respondents that appellant (tenant) has acquired several properties and they had shifted their rehat balti manufacturing work at Mohalla Khurja fate Chandausi but the affidavit of Sri Dhirendra belie this fact and the documents filed by the appellant regarding survey by the Sales Tax Department discloses that their business continued in the disputed property. There is no other evidence that appellant had acquired any such property which is suitable for their business.
(3.) THE concept of suitability has to be determined by the Court in an objective manner and can not be left upon the subjective satisfaction of the parties. After recording the finding that tenant had acquired several properties and had shifted his business therein, there was no occasion for the Appellate Court to hold that the aforementioned accommodation was not suitable. If the other accommodation had not been suitable then the tenant would never had shifted his business thereto. The fact rather admission of the tenant that business had been shifted to other accommodation clearly proved that other accommodation was more suitable than the accommodation in dispute.;