- (1.) V. K. Shukla, J. Present writ petition has been filed by the peti tioner for quashing of the order dated 15. 7. 1996 passed by llnd Additional District Judge Saharanpur allowing the Appeal preferred on behalf of Smt. Sudharshan Devi respondent No. 3 and others under Section 22 of U. P. Act No. 13 of 1972.
(2.) BRIEF background of the case is that an application was moved under Sec tion 21 (1) (a) of U. P. Act No. 13 of 1972 requiring the shop in question for expend ing the business for benefit of petitioner No. 1 and petitioner No. 4. After said release application was filed an application for amendment was also moved that need has much more increased after filing of the said application. Written state ment was filed on behalf of respondents. Affidavit of Sardar Gurucharan Singh husband of petitioner No. 4, affidavit of Smt. Rajendra Kaur wife of petitioner No. 3 and two more affidavits were filed one of Harbinder Singh and other of Sudhir Kumar. Report of Vakil Commissioner dated 9. 9. 1993 was also brought on record. Shop in question was directed to be released. Aggrieved by aforesaid order re spondents preferred Appeal and said Appeal in question has been allowed by holding that application itself was not maintainable. At this juncture present writ petition has been filed. Pleadings inter se parties have been exchanged and thereafter matter has been taken up final hearing and disposal. Sri Manish Kumar Nigam, learned Counsel for the petitioners contended with vehemence that in the present case appellate Court has totally misdirected itself in passing the order impugned whereas respondents themselves admitted that premises in question is shop and while depositing amount under Section 30 of U. P. Act No. 13 of 1972 it was clearly and specifically described as shop as such view takes is incorrect view consequently writ petition deserves to be al lowed.
(3.) FROM the side of respondents, in spite of matter is being taken up in the revised list, no one is present. Factual position which is emerging in the present case is that respondents had been occupying a part from the present accommodation first floor of the accommodation in question also and qua the same separate, proceedings were undertaken under Section 21 (1) (a) of U. P. Act No. 13 of 1972 and same was ultimately allowed and the orders were passed for releasing of the premises in question situated at first floor where persons were residing on 4. 11. 2004. Against the said order passed writ petition No. 50677 of 2004 has been filed and said writ petition was dismissed by this Court on 18. 2. 2005. Petitioners claim that pos session of first floor has been handed over which was exclusively meant for resi dential purpose. This particular premises in question which is subject matter of dispute, as per the tenants was being used by respondents for parking their scooter, and was store of Transport Company. Release application has been moved and same has been allowed after recording finding on both Courts i. e. on the question of bona fide need and of comparative hardship. Appellate Authority has proceeded to allow the Appeal by mentioning that premises in question was not shop as such application in term of Section 21 (1) (a) of U. P. Act No. 13 of 1972, Third provision clause (ii) (a) was not liable to be entertained as said pre mises for residential purpose cannot be occupied for business purpose. Appel late Court has proceeded to mention that as it was residential building as such release for business purpose cannot be allowed. Appellate Authority has further proceeded to mention that need has been set up for married daughter and she does not fall within the definition of family, as such for her accommodation in question cannot be released.;