POONAM SRIVASTAV,J. - (1.) HEARD Sri Arvind Srivastava, learned counsel for the petitioner and Ms. Tulika Prakash advocate for the contesting respondents.
(2.) TWO writ petitions are being decided by a common judgment since basic questions involved are identical and does not require separate decisions. These writ petitions are on behalf of landlord Sarika Kedia, wife of Pankaj Kumar Kedia and Sumit Kumar Kedia who are landlords of the dispute premises which is part of original property of Sri Shanker lal Kedia. The property was bequeathed in favour of Jagdish Prasad Kedia, Gopi Krishna Kedia, Sumit Kedia. Saurabh Kumar Kedia alias Arun Kumar Kedia, Sri Sanjay Kedia and Smt. Sarika Kedia by virtue of Will dated 5.1.2001. One third share came to the petitioner. However, it is a subject-matter of dispute of Suit No. 56 of 2003. A release application was preferred by the landlord vide P.A. Case No. 2 of 2005 which was in occupation of Sri Vishwanath Kanodiya, respondent No. 2 (tenant). The petitioner being daughter-in-law of Sri Jagdish Prasad Kedia who is son of Sri Shanker lal Kedia, preferred release application under Section 21 (1) (a) of U. P. Act No. 13 of 1972 (hereinafter referred to as the Act) in respect of shop, a detailed description of which is in the release application, Annexure-5 to the writ petition. The tenant-respondent filed his objection primarily raising question of maintainability of the release application since the application was not instituted on behalf of all the landlords and they have been impleaded as opposite parties in her release application. The tenant though admitted in his objection that the petitioner was one of the co-landlords as well as objections regarding grounds such as need and hardship on which the release application was instituted. The questions of bona fide need and comparative hardship was decided in favour of the landlords. The release application was allowed by the prescribed authority on 23.8.2007, a copy of judgment in Annexure-19 to the writ petition. The respondent No. 2 preferred an appeal under Section 22 of the Act alongwith stay application.
(3.) SRI Arvind Srivastava appearing on behalf of the petitioner has brought to my notice that the petitioner filed objection to the stay application apprising the Court that the shop in question has an area of 525 sq. ft. and is located in the heart of the city. The going circle rate on the basis of assessment of commercial area is Rs. 15,000 per sq. ft. and current circle rate is Rs. 30,000 sq. ft. This objection was accompanied with the valuer's report of the disputed property. The petitioner did not file any reply to the aforesaid objection. The appellate authority allowed the appeal by means of judgment dated 11.10.2007, a copy of the judgment is Annexure-21 to the writ petition. It is also pointed out by learned counsel for the petitioner that though finding on the question of 'bona fide need' and 'comparative hardship' was confirmed but the appeal was allowed only on the ground that the release application was not maintainable on behalf of a single co-landlord and also that the question on the basis of which Smt. Sarika Kedia claims herself to be sole landlady, i.e., the Will dated 5.1.2001 is subject-matter of a civil suit and dispute is still pending. Thus, the appellate court was of the view that all the co-landlords should have joined hands while instituting the release application. The application on behalf of a co-landlord, arraying other landlords as proforma respondents could not be instituted. Sri Arvind Srivastava appearing on behalf of the petitioner has critically analyzed the judgment impugned. His submission is that the findings are against the settled principles of law and in ignorance of a Full Bench decision of this Court setting the controversy regarding maintainability of a release application at the instance of a single landlord at rest in 1987 ARC 281, Paragraph 17.;