RAVI S.DHAVAN - (1.) THIS is a tenant's petition as a consequence of two non-concurrent judgments. The Prescribed Authority rejected the release application of the landlord filed under section 21 (1) (a) of the U. P. Act No. 13 of 1972.
(2.) THE premises are being utilised as a shop by the tenant, and the landlord requires the same premises in effect, for the same purpose. In appeal, the learned District Judge, Bijnor upset the judgment of the Prescribed Authority. The facts considered, and which weighed with the learned District Judge were that the landlord was himself a poor man. His status was that of a daily labourer earning Rs. 12/- to Rs. 15/- per day. This fact was denied by the tenant who attempted to make out a case that the landlord was a Palledar ; but this submission was not accepted by the Appellate court The landlord had other liabilities also. His father was suffering from paralysis and his mother was still alive and both were living with him. Besides this he has his own family to support. The purpose for which the landlord required the accommodation was no different than the tenant. The landlord desired to install a grocer's shop in that accommodation. The Prescribed Authority took the view that these premises could not be utilised for business as it was a residential accommodation. This view is erroneous because the Prescribed Authority apparently forgot the circumstance that the tenant himself was running a tea stall there, and the landlord required the premises for the same business also ; otherwise the tenant had no business to carry on a business in a residential accommodation. The learned District Judge noticed that the tenant had another shop which he was using as a tea stall. The tenant denied this circumstances on the ground that it was not his but belonged to his ' maternal brother ' (sic). No proof was offered to rebut the allegation that the alternate shop was not his, but belonged to some one else. Thus the presumption under section 114 (g) of the Evidence Act was against the tenant as he had the best evidence but would not produce it.
(3.) LEARNED counsel for the petitioner next contended that the report which had been filed by the Commissioner was accepted on record without affording him an opportunity to file objections. It has not been denied that on the day the commission was executed the tenant was not ignorant of the fact that the Court Commission was being carried out. The tenant was totally aware that a commission was executed to report to the court and could have filed objections in case he seriously wanted to. Another aspect which this Court cannot help noticing is the manner in which the tenant has approached this Court under Article 226 of the Constitution of India. The date of the decision of the Appellate Court is 24th January, 1987 and the writ petition has been filed on 23rd April, 1987. Before this, the tenant made total use of the indulgence granted by the District Judge, Bijnor to vacate the accommodation and to remain in it for three months. The tenant consumed the entire time to his advantage and then approached this Court by the present writ petition. It would have been appropriate if the petitioner had approached this Court with a sense of urgency within a reasonable time from the date of the judgment of the appellate court.;