POONAM SRIVASTAV, J. - (1.) HEARD Sri P.K. Jain, Senior Advocate, assisted by Sri Kamal Mehrotra, learned Counsels for the petitioner and Sri M.A. Qadeer Advocate for the contesting respondent.
(2.) COUNTER and rejoinder affidavits have been exchanged which are on record and as agreed between the learned Counsels for the parties, this writ petition is finally decided. This case has a long chequered history. The landlord filed an application before the Prescribed Authority under Section 21 (1)(a) of the U.P. Act No.13 of 1972 (hereinafter referred to as the Act) for eviction of respondent No.2 from the shop in question. In fact the dispute relates to only a staircase. This application was filed by the petitioner on 26.8.1985 for starting a Nursing Home for her son Dr. Arun Kumar Mehrotra and daughter-in-law Smt. Seema. The second son Anoop Kumar has taken retirement from Indian Nevy therefore, after demolition of the portion under the tenancy of the tenant as well as three other shops which are already in vacant possession of the staircase in dispute. A plan has already been sanctioned by the Development Authority with dimension of 57 x 21 feet. The Prescribed Authority rejected the application for release vide order dated 30.3.1996. However, the Appellate Authority allowed the appeal of the petitioner vide judgment and order dated 1.12.1999. The appellate order was challenged in Writ Petition No.54262 of 1999 and this Court remanded the matter for the reason that it was not clear that whether any map was submitted indicating as to the plan for constructing the Nursing Home which requires demolition and the construction of the tenanted staircase since it requires specific finding on this as­pect. The Appellate Authority was further directed to record as to what is the plan to construct the Nursing Home, the rooms and space required for it. The Appel­late Authority was permitted to appoint an Advocate Commissioner who will pre­pare a map on this aspect and record a finding on both the matters after affording opportunity to the parties concerned. Finding was called for within six weeks from the date of production of the certified copy of the order dated 23.12.1999 passed in the aforesaid writ petition. The Appellate Authority recorded its finding vide order dated 17.2.2000 pursuant to the direction given by this Court and the matter once again came up before this Court. The Appellate Authority had sub­mitted its finding and found that the landlady had already got the map sanctioned of the construction by Nagar Palika on 28.12.1999. The length and width of the Nursing Home was 57 x 21 ft. Eight rooms are proposed to be constructed on the first floor and 8 rooms on the ground floor. While remanding the matter another suggestion was made that the landlord has three other shops where the Nursing Home can also be constructed but the appellate authority reported that these three shops which are situated towards South to the Four shops, are not fit for construction of the Nursing Home. The third suggestion was that the landlady can construct Nursing Home on an open place near Petrol Pump which is 4 kilometers from the disputed accommodation. However, the appellate authority was of the view that the accommodation sought to be released for construction of the Nursing Home does not suffer from any illegality. Admittedly, Dr. Arun Kumar son and daughter-in-law of the landlady are doctors. The mere fact that they are doing medical practice from their residential house do not debar them from constructing Nursing Home as this was proposed in the release application. The entire matter was heard in detail by this Court allowing the writ petition. The order of the appellate authority was quashed with the direction to the Appellate Court that it will record a fresh finding as to whether three shops south to the four shops are vacant and in possession of the respondents and if other persons are occupying, such shops whether they are valid tenants in accordance with the provisions of the Act. The Appellate Court was permitted to issue notice to the occupants to ascertain this fact and it is found that the tenants were subse­quently inducted by the respondent No.2, the petitioner shall be evicted only after an alternative shop will be made available to the petitioner. In the event it is found that the other three shops are under a valid tenancy of the other tenants, the petitioner can not lay any claim for an offer to be made by the landlady and, therefore, the application filed for release in the year 1985 should be allowed as the petitioner/tenant has not made any effort to find out any alternative accom­modation. The appellate authority was directed to decide the release application within two months from the date of production of the certified copy of the order dated 16.8.2000. The copy of the judgment and order dated 16.8.2000 is Annexure-11 to the writ petition.
(3.) LEARNED Counsel for the petitioner submits that the appellate Court failed to issue any notice to the tenant of the three shops as directed by this Court and to appoint the Advocate Commissioner to report the matter. A report was pre­pared by the Advocate Commissioner without visiting the shop. The petitioner filed her objection to the report of the Advocate Commissioner along with her own affidavit as well as the affidavit of three tenants namely Shamsher Khan, Ram Dutt Monas and Shamshul Haq. The tenants also filed rent receipts issued to them. The Appellate Authority also failed to decide the objection to the Commissioner's report and made an observation that it shall be examined at the time of final decision but the appellate authority passed an order formulating three points for decision of the case on 18.12.2000 and finally without examining them decided the objection of the petitioner to the Commissioner's report, vide order dated 11.5.2001 to the effect that the shop in dispute shall be released to the petitioner subject to the availability of one shop to the respondent No.2 which is impugned in the instant writ petition.;