V.K.Shukla - (1.) -Munna Lal son of Ram Charan Agarwal, landlord has filed present writ petition questioning the validity of the order dated 1.8.2003 passed by the Additional District Judge Fast Tract Court No. 11, Jalaun, at Orai allowing tenant's appeal preferred under Section 22 of U. P. Act No. 13 of 1972 arising out of the order dated 15.10.1998 passed by the prescribed authority in P.A. Case No. 6 of 1994 Munna Lal v. Madan Lal in proceedings under Section 21 (1) (a) of U. P. Act No. 13 of 1972.
(2.) BRIEF facts giving rise to the instant writ petition in brief is that petitioner is landlord of shop in question which is subject-matter of dispute in the present writ petition which was let out to Madan Lal at the rate of Rs. 75 per month, subsequently enhanced to Rs. 200 per month. Release application was filed under Section 21 (1) (a) of U. P. Act No. 13 of 1972 by the landlord against the tenant in question for vacating the shop in question, setting up need for settlement of his unemployed son Mrigendra Kumar for opening shop of cloth and garment. To the said release application, written statement was filed by the tenant and therein it was accepted that Madan Lal-tenant has taken the premises in question on rent, and in the said premises in question, he is carrying on his business of selling of utensil. Plea was also taken that landlord has got shop wherein he and his son are carrying on business of Sharrafa and the shop in question is not at all required. After the said written statement had been filed, amendment was made in the written statement which was allowed on 8.7.1997 mentioning therein that one shop was again fallen vacant. The prescribed authority on the basis of evidence, which was adduced found the need of the landlord of settling of his son to be bona fide and genuine one and even on the question of comparative hardship front, finding was recorded in favour of the landlord. After the said order has been passed tenant preferred an appeal and said appeal in question has been allowed on 1.8.2003 and order dated 15.10.1998 passed by the prescribed authority has been set aside. The view taken by the appellate court is that in the present case Madan Lal is unauthorized occupant, as he has no order of allotment in his favour and in this background once he was unauthorized occupant, the provision of Section 21 (1) (a) of U. P. Act No. 13 of 1972 are not applicable and remedy of petitioner was to file suit for getting possession of the property in question. The appellate authority considered the question of bona fide need and ruled against landlord. At this juncture present writ petition has been filed. Counter-affidavit has been filed and therein it has been contended that landlord got constructed two shops in the main market near temple of Bihari Ji Maharaj, which is in the main market and same are vacant and suitable for settling his son Mrigendra. Anil Kumar elder son of petitioner has also got shop in the same market which is vacant. Reference has also been given of the Commissioner's report dated 19.2.2000, to fortify fact that landlord has got constructed shop in the main market and in this background it has been contended that application itself was not maintainable and appeal in question had been rightly allowed. To this counter-affidavit, rejoinder affidavit has been filed and therein plea has been taken that release application was not made for the use of Anil Kumar and Anil Kumar is an advocate. He has his own office/chamber and no shop is vacant in the main market. It has also been specifically contended that clinic of Mahendra Kumar is in a part of the chamber of Anil Kumar advocate which cannot be termed as separate. It has been reiterated that Mrigendra Kumar is still unemployed and intends to start his business. It has also been stated that Anil Kumar is residing at Konch Jalaun and is not residing at Madhya Pradesh. In respect of Rajeev Kumar it has been stated that he has built his own house/shop out of his own earnings. The petitioner or his other sons have no concern at all with the said house. Rest of averments have also been disputed.
(3.) AFTER pleadings mentioned above, have been exchanged, present writ petition is being taken up for final hearing/disposal with the consent of the parties. Ms. Sufia Saba, learned counsel for the petitioner contended with vehemence that in the present case appellate court has totally misdirected itself while allowing the appeal, ignoring the factum of bona fide need and comparative hardship in favour of the tenant and taking totally unsustainable plea that application under Section 21 (1) (a) of U. P. Act No. 13 of 1972 was not at all maintainable, as such order passed by the appellate court deserves to be set aside and the order of prescribed authority is liable to be restored.;