- (1.) SHITLA Prasad Srivastava. J. This writ petition under Article 226 of the Con stitution of India has been filed by the petitioner for quashing the judgment and order, dated 23-4-1985 passed by the respondent No. 1 (IInd Addl. District Judge] Saharanpur) which has been filed as (Annexure 16 to the writ petition ).
(2.) BRIEF facts, as stated in the writ petition, are that the petitioners claimed themselves to be the owner and landlord of shop bearing Municipal No. 4/1, Bomanji Road, Saharanpur (hereinafter referred to as disputed shop ). The petitioners sought a relief by filing an application under Sec tion 21 (l) (a) of the U. P. Act No. XIII of 1972 (hereinafter referred to as the Act ). The application was filed on 22-9-1980 against the respondent No. 3, tenant in occupation, showing the need for the shop is bona fide and genuine and greater than that of the alleged need of the tenant. The need which was shown in the application was that the petitioner Nos. 1,3 and 4 have attained the marriageable age and are not being married and their marriages are being postponed on account of the fact that they do not have any permanent busi ness and a permanent source of earning. It was stated that the petitioner No. 1 ex pressed his bona fide and genuine need to settle his two sons in some permanent business at Saharanpur and the disputed accommodation being suitable one for the iron business, therefore, it may be released. It was specifically stated that the petitioner Nos. 3 and 4 have got experience of the: business of iron and the petitioners Have sufficient funds for the purpose of establishing the said business in the dis puted accommodation. In paragraph No. 5 of the writ petition, it is stated that the petitioner Nos. 3 and 4 are not highly, educated persons and they have no per manent source of business or earning. However, by way of stopgap arrangement, they have been doing some retail and casual business at Ambala for earning their bread, therefore, they want to start their own business in the premises in ques tion. The respondent No. 3 (tenant) con tested the application on the ground that the petitioner No. 1 alone is the landlord of the disputed accommodation, which was let-out by him and the petitioner Nos. 2,3 and 4 are not the landlord nor the respon dent is their tenant. It was further stated that the petitioner did not have cordial relationship amongst themselves and they were never entered as voters at Saharan pur and they have no residential place in the city of Saharanpur, therefore, they have no bona fide need for the shop in question. It was further stated that about 7 or 8 years ago, after the disputed accom modation was vacated by one Kishan Lal, it was let out to the respondent No. 3 after receiving, from him money as Pagri. On the point of hardship, it is stated by the petitioner in paragraph No. 8 of the writ petition, that the respondent No. 3 is a rich persons having his big business in the city of Saharanpur and he does not need the accommodation in question. He is easily living, in a very big and spacious com pound besides having several businesses in the city of Saharanpur. It is submitted by the petitioners that the respondent No, 3 has a big compound at Bamanji Road, Saharanpur, which is adjacent to the dis puted premises and he could easily run his business therein. It is stated that on 6-2-1982, the Prescribed Authority allowed the released application. Aggrieved the order of the prescribed authority, the respondent No. 3 filed an appeal. During the pendency of the said appeal the respondent No. 3 filed an application seeking amendment of the written statement with mala fide intention to introduce a false and concocted story to the effect that there had been an agree ment between the parties to the effect the respondent No. 3 will reconstruct the ac commodation in question and on his doing so he will not be evicted from the accom modation in question during his life-time on the ground the said accommodation was needed by the petitioners for their own use. Then application for amendment was opposed by the petitioner and lastly dismissed by the Court of District Judge, on 8-4-1982. The tenant preferred a writ peti tion being Civil Misc. Writ Petition No. 5171 of 1982 in order to linger the proceed ings. It is stated in para 24 of the writ petition that during the pendency of the appeal the respondent No. 3 although ac knowledge the petitioners bona fide and genuine need by filing their affidavit and purporting to offer an alternative accom modation to the petitioners for satisfying their need, but no note of this fact has been taken by the respondent No. 1. 1 while deciding the release application. The petitioners have a copy of this application dated 10-4-1995, as Annexure 13 to the petition. The learned IInd Addl. District Judge (respondent No. 1) on 23-4-1985 (Annexure-14) allowed the appeal of the respondent No. 3 and rejected the applica tion of the landlord, therefore, the petitioners have challenged the impugned order by this writ petition on a number of grounds. The main ground of attack is that the prescribed authority has committed error in drawing adverse inference from the address of the petitioner Nos. 3 and 4, mentioned in the release application as Ambala. Further, there was no evidence on record to prove that the petitioners were permitted by an oblique motive to have the premises released. Farther that the bona fide need of the petitioners has not been properly decided by the appellate Court.
(3.) SRI Ravi Kant appearing for the petitioners has vehemently urged that the landlord had a genuine land bona fide need and the order of the appellate Court that as the landlord was executing the agreement of sale would not mean; that the landlord had intention to start business at Saharanpur. Learned Counsel for the respon dent Sri H. S. Nigam, has vehemently urged that the appellate Court has recorded find ing of fact that the petitioners have no bona fide need, therefore, this is finding of fact which cannot be set aside in exercise of jurisdiction under Article 226 of the Con stitution of India. He has further urged that the appellate Court considered the bona fide need as well as comparative hardship in details. There is no perversity in the judgment. He further submitted that it is admitted to the landlord that two sons for whom the premises in question is re quired arc doing their business and resid ing in Punjab as the addresses given by the petitioner anti Execution Case No. 13 of 1979, it was Alleged by the landlord, Lal Chand that He was residing in Khanna, Ludhiana (Punjab) for last more than twenty years and from the plaint in the Suit No. 2 of-1969, it is clear that the sons of petitioner Lal Chand desired partition and alleged that his father was a drunker and a gambler, therefore, there is no cordial-relation between the father and sons and further that there are affidavits on record to prove this fact that Surendra Kumar son of Lal Chand is employed in Punjab in an Insurance Company and another son, namely, Narehdra Kumar works at Arhat Shop in Subzi Mandi, Ambala Cantt. and third son, namely, Sushil Kumar works in Govindgarh Mandi as. Commission Agent in the business of from, therefore, these two sons who are doing their business in Ambala have no need of any shop at Saharanpur. It was also pointed out by Sri H. S. Nigam that from the record, it is apparent that the landlord has entered into various agreement to sell the property of Saharanpur. A copy of the agreement dated 5-12-1981 has be filed to which and to Zaheer Ahmad and received the earnest money. This shows the intention of the landlord regarding His bona fide need.;