V.K.Shukla - (1.) -Tenant Swaraj Kumar has approached this Court questioning the validity of the decision dated 19.9.2005, passed in Rent Control Appeal No. 19 of 2004, Arvind Kumar v. Swaraj Kumar passed by the Special Judge (E.C. Act)/ Additional District Judge, Moradabad allowing release application, preferred on behalf of the landlord under Section 21 (1) (a) of U. P. Act No. 13 of 1972.
(2.) PETITIONER has been tenant of non-residential accommodation on monthly rent of Rs. 700 per month situated at opposite H.S.B. Inter College, Moradabad wherein he has been doing his extensive business of brass manufacturing. Arvind Kumar landlord filed application under Section 21 (1) (a) of U. P. Act No. 13 of 1972 on 20.10.2003 for release of premises in question in occupation of the tenant for settling his two sons claiming them to be unemployed. Said release application was contested by the petitioner by filing his written statement on 7.1.2004 and therein plea was taken that petitioner was running his business since 1973 and landlord is not at all in need of accommodation and need set up by the landlord is totally farce and sham. Plea was taken that original landlord is Devi Saran and he has got various properties at his disposal and apart from the same Arvind Kumar is having big factory in the name and style "Classic Collection", wherein his two sons are also engaged with large number of servant. Affidavit was filed by Arvind Kumar on 20.1.2004 taking stand that his sons are adult and unemployed and are to be involved in the business for which the disputed accommodation is required. Said affidavit was countered by the petitioner by filing affidavit on 1.3.2004. Two sons for whose benefit release application has been moved, also filed affidavit on 17.4.2004 reiterating the same that they want to do their business separately and they have no accommodation and the disputed accommodation is suited for their business. Apart from this petitioner contended that various affidavits have been filed by the parties to substantiate their respective claim. The prescribed authority on 26.7.2004 rejected the release application filed by the landlord. Prescribed authority mentioned that as landlord has not disclosed as to what business his sons will carry out and as to what was the extent of accommodation required by them in this background need is not bona fide and genuine and rejected the application. Against the judgment passed by the prescribed authority dated 26.7.2004, the landlord preferred Rent Control Appeal No. 19 of 2004 under Section 22 of U. P. Act No. 13 of 1972 and said appeal was allowed on 31.3.2005, by mentioning that need of landlord was bona fide and genuine and he would suffer greater hardship. Against the said judgment passed by the appellate authority, Civil Misc. Writ Petition No. 41729 of 2005, Sri Swaraj Kumar v. Arvind Kumar had been filed before this Court, said writ petition was allowed by this Court on 27.5.2005. Before this Court arguments are advanced on behalf of the petitioner that in view of the provision of Section 21 (1) (a) of the Act, it was incumbent on the part of the prescribed authority as well as appellate authority before directing release of the accommodation in dispute to consider as to whether the release of the part of the accommodation will serve the purpose of the landlord and tenant both and if it would have come to the conclusion that the release of part of the accommodation will serve the purpose, it should direct for release of part of the accommodation not of entire. Other issues were also raised, but since the point of part release of the accommodation was accepted by this Court, the other points were not discussed and matter was remanded back by this Court by mentioning that considering the fact and argument and judgment of Hon'ble Apex Court as well as Hon'ble High Court writ petition deserves to be allowed. Order dated 31.3.2005, passed by the appellate authority is quashed and matter was remanded back to appellate authority to consider the application of part release and decide the same in the light of the observations made in this judgment in accordance with law. As matter was treated to be old, the appellate authority was directed to decide the question involved within three months from the date of presentation of certified copy of this judgment before him. After the said remand order had been passed on 2.7.2005, application was moved mentioning therein that for proper adjudication of the matter affidavit is being filed, which is necessary to be taken on record, as additional evidence. Affidavit which was filed therein it was mentioned that landlord bona fidely needed premises in question and he needs premises in question for Export Business and he had also annexed map to show the extent of accommodation for the said Export Business. On 27.7.2005, petitioner filed objection to the said application mentioning therein that additional evidence cannot be taken on record and same should be decided on the basis of the material, which was already in existence. Affidavit was also filed to the similar effect by the petitioner on 27.7.2005. Another application was filed by the petitioner on 10.8.2005, raising objection in respect of the additional evidence to be taken on record. Petitioner has contended that thereafter, rejoinder-affidavit was filed on 12.8.2005 and case was fixed for hearing on 18.8.2005 and then same was adjourned on 24.8.2005 and then on 30.8.2005. On 30.8.2005, counsel for the both the sides were present, who were heard and then 8.9.2005 was fixed for dictation of judgment, and then on 8.9.2005 judgment could not be dictated, same was adjourned to 15.9.2005 and on 8.9.2005 written arguments were supplied with case laws and thereafter, judgment has been delivered on 19.9.2005. At this juncture present writ petition has been filed assailing the validity of decision taken.
(3.) COUNTER-affidavit has been filed and therein it has been stated that initially Devi Saran Ji was the landlord of the property and present landlord is grandson and there had been a family partition. Suit was filed being Suit No. 72 of 1991 wherein decree was passed on 4.3.1981 and thus present property came in the share of the landlord and since then petitioner is paying rent to the landlord to Rs. 700 per month. It was also mentioned that landlord is carrying on his business in tenanted portion of the property in the name and style Classic Collection. Properties described at serial Nos. 1 to 7 of the property, are not at all properties, of the landlord and landlord has no concern with the same and are not accessible to the landlord at all. Precise mention was made that landlord is not at all in possession of any factory as mentioned in para under reply which has been let out to Lohia Brass. Specific denial was made that 1/3 share of the property in the possession of Kamal J. S. Ahluwalia is not in possession and same is under litigation. It has been stated that matter has been considered and rightful finding of fact had been returned and qua application dated 11.8.2005 it has been contended that said application have been moved for dilatory tactics. Rejoinder-affidavit has been filed disputing the averments mentioned in the counter-affidavit and reiterating the averments mentioned in the writ petition and stress has been laid that partial eviction was feasible.;