Poonam Srivastav - (1.) THIS writ petition was listed peremptorily yesterday. Sri J. J. Munir, learned counsel for the petitioner had submitted that it is landlord petition and release application was filed on 4.4.1994 and is pending. Counter-affidavit has been filed on behalf of the contesting respondent. Since the case was listed peremptorily and counsel for the contesting respondent-tenant was not present, learned counsel for the petitioner was directed to give a written notice to the counsel for the respondent and the case was directed to be put up tomorrow. Today an affidavit has been filed by Sri Rajendra Kumar Yadav, clerk of Sri J. J. Munir advocate stating therein that he has tried to locate Sri Ravindra Mishra, learned counsel for the contesting respondent in the Court and also searched for him on his seat but he was not available. In the evening, he had gone at his residence and gave notice to Mr. Mishra but he refused to take notice, he gave assurance that he will be present in the Court when the case is taken up. The said notice is annexed with the affidavit of Sri Rajendra Kumar Yadav. Sri J. J. Munir also informed the Court that the rejoinder-affidavit was served to the counsel for the respondent but he refused to accept the same, therefore, he has not been able to file the said rejoinder-affidavit. However, I have taken the rejoinder-affidavit on record.
(2.) SRI J. J. Munir advanced his arguments on behalf of the petitioner Smt. Raj Kumari Gupta who is landlady of the property situated at Achal Road, Aligarh. The respondent is tenant at a monthly rent of Rs. 110. The accommodation in question is situated on the ground floor of a building Bearing Premises No. 8/91E. The accommodation in question was let out to the tenant-respondent when the sons of the landlady were very small. At the time of filing of the writ petition, the number of family members including the landlady were 13, as detailed in paragraph 4 of the writ petition. The disputed accommodation was bona fidely required by the landlady for her son Bhubanesh Kumar who was unemployed but married with two children. He passed his Intermediate Examination in the year 1990 and thereafter joined his studies in B. Com. However, he did not continue with his studies therefore, there was necessity for the landlady to establish her son in an independent business. It was also contended that the other son Devesh Kumar also intended to settle his business and requires accommodation. A release application was filed by the landlady under Section 21 (1) (a) of the U. P. Act No. 13 of 1972 (hereinafter referred to as the 'Act'). In another release application, the landlady had sought release of another shop for her son, Devesh Kumar, which was in occupation of tenant Subhash Chandra. The release application was allowed but it was challenged in a writ petition which is pending in this Court. However, the said proceedings have no concern with the present one. The prescribed authority dismissed the release application on 19.8.1996 which was challenged in an appeal under Section 22 of the Act. The appeal was also dismissed by the Additional District Judge, Court No. 7, Aligarh vide its judgment and order dated 29.5.2003. Both the orders are impugned in the instant writ petition. Learned counsel for the petitioner submits that the courts below were of the view that the petitioner has an alternative accommodation by way of two rooms, which the tenant claimed to be in possession of the landlady. The petitioner had made an application in the appellate court for a spot inspection as according to her, the true position of the building was not disclosed and the courts below rejected the release application on a wrong assumption. The bona fide need was substantiated by means of an affidavit but did not find favour by the courts below only because two rooms on the first floor where Unique Enterprises and R. K. Enterprises are the tenants which was let out subsequently and, therefore, bona fide need was decided against the petitioner. This was specifically denied by means of affidavit of her husband Ghanshyam Das. The lower appellate court did not come to a conclusion that the landlady has a right to establish her son in an independent business but she already possessed two rooms on the first floor. The landlady's husband Ghanshyam Das had unequivocally stated in his affidavit that the shops alleged to have been given to Ram Kumar is not correct. The findings by the trial court that Unique Enterprises and R. K. Enterprises are running its business and it was let out subsequent to the year 1994 and, therefore, it is wrong to say that there is no bona fide need. This finding was recorded only because some accommodation was available on the first floor though it was confirmed that the landlady has no accommodation to start business on the ground floor.
(3.) LEARNED counsel for the petitioner has drawn my attention to the fact that an application for local inspection was moved which is Annexure-19 to the writ petition. The appellate court had directed that it will be decided at the stage of final hearing but neither it was taken into consideration nor any order was passed on the said application. I have heard Sri J. J. Munir, learned counsel for the petitioner. He asserts that even today two accommodations are not in occupation of Unique Enterprises and R. K. Enterprises and a local inspection was very very necessary for a just conclusion on merits. I think that the landlady cannot be deprived of her right and her claim to establish her son in an independent business since the counsel for the petitioner has clearly admitted before me that no such business is being run and exact position can be elucidated only after getting a local inspection made. I do not think it appropriate to get a local inspection made in the instant writ petition and record afresh evidence in exercise of jurisdiction under Article 226 of the Constitution of India. I cannot also overlook rightful claim of the landlady and, therefore, it is in fitness of these circumstances that the matter should be remanded to the appellate court to get a local inspection made regarding those two rooms on the first floor which is sole basis for refusing rel 7. In the circumstances, the judgment and order dated 25.8.2003, passed by the Additional District Judge, Court No. 7, Aligarh is hereby quashed. The matter is remanded to the appellate court for afresh decision after recording findings on the evidence collected and after getting a local inspection made regarding those two rooms on the first floor which is sole basis for refusing release. The matter shall be decided by the appellate court expeditiously, preferably within a period of three months from the date a certified copy of this order is produced before him, without granting undue adjournment to either parties unless and until compelling circumstances arise to do so and that too after recording reasons in writing. It will be open for the parties to lead their evidence. With the aforesaid observations, the writ petition is disposed of.;