M.M. Gupta, J. - (1.) This writ petition has been filed by Om Prakash and Satyabir for a writ of certiorari for quashing the order passed by the Prescribed Authority on the 4th December, 1975 and the order passed by the learned 1st Additional District Judge, Nainital dated 18th June, 1976 (Annexure I and II respectively to the writ petition) releasing the shop in question in favour of opposite party No. 3, Sri Shanti Prasad.
(2.) It appears that a shop in Mohalla Najkari Bazar, Kashipur, district Nainital was in the tenancy of the petitioner for about 50 years. The shop was purchased by opposite party No. 3 in 1966. After purchasing the disputed shop, opposite party No. 3 moved an application under section 3 of the U.P. (Temporary) Control of Rent & Eviction Act, 1947 for permission to sue for eviction of the petitioners. This application was dismissed by the Rent Control and Eviction Officer. That order was confirmed in revision by the Commissioner as well as by the State Government.
(3.) On 19.11.1971 a fresh application was moved before the Rent Control and Eviction Officer seeking the permission to sue the petitioners for their eviction from the shop in question. During the pendency of that application the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1912 (hereafter to be referred to as the Act) came into force. The application for permission moved under section 3 of the U.P. (Temporary) Control of Rent & Eviction Act, 1947 (hereafter to be referred as the Old Act was converted into one under section 21 of the Act. The application was duly amended by adding an additional ground that opposite party No. 3 required the shop after demolition. It was also mentioned in that application that a portion of the shop after construction shall be made available to the petitioners for carrying on their business. Another ground taken in that application was that the petitioners had built a shop in Durga Mandi after purchasing a plot. One of the objections that was taken against the maintainability of the application under section 21(l)(a) for the release of the shop in dispute was that the premises were not bona fide required by opposite party No. 3. It was also claimed that the application was not maintainable and was barred by res judicata on account of the previous application moved on similar ground having been rejected. This objection relates to the provision of Rule 18 framed under the Act. It was also claimed that in the shop in question the good will was acquired and a very great hardship would be suffered by the petitioners. It was further asserted that in the shop in Durga Mandi one could carry on only the whole-sale business while in the shop in question the petitioners were carrying on the business of tobacco and vegetable ghee and under the Excise Rules that shop could not be shifted. The shop also carried on retail business. Both the Prescribed Authority as the learned Addl. District Judge did not accept the contentions raised on behalf of the petitioners and consequently ordered the release of the shop in favour of opposite party No. 3.;