- (1.) S. U. Khan, J. Heard learned Counsel for the parties.
(2.) THIS writ petition has been filed by the second lessees or transferees of lessor's right during continuance of tenancy of the original tenant Sampat Roy whose heirs are respondents in this writ petition. Petitioners may be described as transferees or assignees of the reversion which was reserved to the owner landlord after he executed the lease in favour of tenant Sampat Roy. Such an assignee is in the position of landlord as far as recovery of rent and ejectment is concerned in respect of the tenant who was earlier inducted by the original owner-landlord. In this regard reference may be made to an authority of this Court reported in Munshi Lal Niyaria v. Lala Kedar Nath, 1970 AWR 803. I have also considered this question in Ved Prakash Arya v. A. D. M. , 2003 (2) ARC 797. In the said authority, I placed reliance upon several authorities including the authority of this Court reported in 1978 ALJ 759. A contrary view has been taken by the Calcutta High Court in AIR 2005 Cal. 281, Shambhoo Nath Misra v. Khaitan Consultant Limited. With great respect, I do not agree with the view of the Calcutta High Court. Moreover, an authority of this very Court has got binding force in preference to the view taken by another High Court. It is also important to note that this question has been decided in favour of the petitioners landlords by the lower appellate Court however in the counter-affidavit filed in this writ petition correctness of the said view has not been assailed. Only oral arguments were raised in respect of the said point. This writ petition arises out of release proceedings initiated by landlords/second lessees against tenant Sampat Roy since deceased and survived by respondents on the ground of bona fide need under Section 21 of U. P Urban Building (Regulation of Letting, Rent, and Eviction) Act, 1972 (hereinafter referred to as 'act' ). Release application was registered as P. A. Case No. 13 of 1998 and was allowed by the prescribed authority under the Act/ii Additional Civil Judge (S. D.), Allahabad on 8-8-2000. Against the said judgment and order original tenant Sampat Roy filed R. C. Appeal No. 151 of 2000. During pendency of appeal Sampat Roy died and was substituted by the legal representatives who are respondents in this writ petition. Additional District Judge Court No. 3 Allahabad/appellate Court through judgment and order dated 23-3-2005, allowed the appeal and set-aside the eviction order passed by the prescribed authority. This writ petition is directed against the said appellate order.
(3.) THE lease of reversion was executed by the original owner landlord Sri Gyan Prakash in favour of M/s. Hotel Vilas a partnership firm at that time in which sons or daughters in law of Sri Gyan Prakash were partners. Sri Gyan Prakash left behind three sons, Yasharth, Purusharth and Parmarth. When release application was filed wives of Purusharth and Yasharth i. e. Smt. Ranjana and Smt. Nutan alongwith Parmarth the third son of late Sri Gyan Prakash were partners of the firm M/s. Hotel Vilas. THEy sued in the capacity of landlords/second lessees/assignees of the right of reversion of the owner landlord. During pendency of appeal partition took place among the partners and partnership was annulled and entire assets of the partnership firm were given to Smt. Nutan wife of Sri Yasharth who is petitioner No. 2 in this writ petition. M/s. Hotel Vilas is now a trade name and its proprietor is Smt. Nutan. This arrangement has been accepted by the heirs of the original owner landlord late Sri Gyan Prakash (incidentally the major heirs of late Gyan Prakash are his three sons ). Rent was also paid by the tenants to Hotel Vilas. THE appellate Court decided the said question in favour of the landlord and held that M/s. Hotel Vilas a proprietorship of Smt. Nutan and Smt. Nutan became the landlord of the tenants after family partition in 2001 (24-7- 2001 and 8-9-2001 ). As stated earlier, in the counter-affidavit absolutely nothing has been said against the said finding. Even otherwise in my opinion such an arrangement among different persons belonging to the set of second lessees is quite permissible. THE heirs of the owner have got no objection hence tenants can not say anything against that. The property in dispute is a big shop consisting of three shops privately numbered as 3, 4 and 5. Map is on page 97 of the writ petition dimensional correctness of which is substantially admitted to the tenants also. There is no partition wall in between the three shops hence it is actually one big shop dimensions of which are about 33 feet frontage and 23 feet depth. The case of the landlords was that just adjacent to the shop in dispute they have got their Hotel by the name of Hotel Vilas which contains about 30 rooms and they proposed to extend the hotel by adding certain facilities and by providing better and bigger lobby cum reception. They specifically stated that they required the shop in dispute for opening a fast food restaurant in its 2/3 portion towards south and they required 1/3 portion of the shop in dispute towards north for establishing/extending lobby cum reception alongwith adjoining accommodation, which was in their possession. The landlords further stated that towards south of the shop in dispute there were two shops total frontage of which was about 22 feet and tenant of the said shops Sri N. N. Sharma had promised to vacate the same and in the said two shops landlords intended to open/build a kitchen for fast food restaurant. All these things are mentioned in the map on page 97. The prescribed authority found the need of the landlord to be quite genuine and bona fide. However appellate Court held that the need was not bona fide. This question was discussed by the appellate Court under issue/point No. 2. The appellate Court mainly held that other accommodation available to the landlords could satisfy their need. Appellate Court further found that in 1995 a portion was given to one Smt. Gita Agarwal for opening Bridges restaurant. (In fact the restaurant was opened by Smt. Shivani wife of Parmarth and Smt. Gita Agarwal, para 17 of counter-affidavit filed by Respondents 1 to 5 ). Appellate Court also held that some other adjoining shops had also been vacated by their tenants. Entire accommodation has been shown in the map on page 97. The portion which was occupied by Bridges restaurant has been shown as dining hall and it is on the back side of hotel. The shops No. 9,10 and 11 are being used as health centre of the hotel. Incidentally one of the tenants is also member of this health centre. Shop No. 8 has been shown to be Accounts Office.;