PREM PRAKASH MAHESHWARI Vs. GYANESHWAR SHARMA

JUDGEMENT

(1.) These two writ petitions, namely, Writ Petition No. 34544 of 2001 filed by Prem Prakash Maheshwari and Writ Petition No. 34545 of 2001 filed by Smt. Keshar Bai Jain and another, since raise common questions of fact and law which have been decided by the appellate authority under the provisions of U. P. Act No. 13 of 1972 (hereinafter referred to as the Act) by a common judgment. The tenants having felt aggrieved by the order passed by the appellate authority, whereby the appeals filed by the landlord were allowed by the common judgment dated 18th August, 2001, have approached this Court by means of these writ petitions under Article 226 of the Constitution of India.

(2.) The two petitioners in the two writ petitions are tenants of two shops and the respondent, Gyaneshwar Sharma, is the landlord. The landlord-respondent filed two applications against the two petitioners for release of two shops under the provisions of the Act for the purpose of bona fide requirement which has been set up by the landlord to set up his son in Girder and stone slabs business and the business of other building materials. The two applications were heard together and after hearing the parties the prescribed authority under the provisions of the Act has dismissed both the applications for release filed by the respondent-landlord. Aggrieved thereby the respondent-landlord preferred two appeals being U. P. U.B. Appeal No. 4 of 1997 against Prem Prakash Maheshwari and U.P. U.B. Appeal No, 5 of 1997 against Kailash Chandra Jain, husband of Smt. Keshar Bai Jain, petitioner No. 1 in Writ Petition No. 34545 of 2001. Both these appeals were heard and as stated above, were allowed by the appellate authority after setting aside the order passed by the prescribed authority. The appellate authority directed release of the two shops, under the tenancy of the petitioners, in favour of the landlord.

(3.) Before this Court learned Counsel for the petitioners has argued that even according to findings recorded by the appellate authority, since respondent-landlord possesses space for storage purpose he can start his business from the available open space at the back of his house and at the best some sort of office space is required for setting of the business of son as stated by the landlord and found by the appellate authority to be bona fide requirement of the landlord. It is further submitted that in that event even release of one shop will be sufficient and the other tenant need not be evicted. The other argument which has been advanced on behalf of the petitioners is that the appellate authority had not at all considered this aspect of the matter and directed release of both the shops. It is then submitted that in view of provisions of Section 21(1)(a) of the Act, it was incumbent on the part of the appellate authority to have considered the question of part release. Learned Counsel for the petitioners has relied upon recent decision of Apex Court in Ramesh Chandra Kesharwani v. Dwarika Prasad and Anr., 2002 (4) AWC 2737 (SC) : 2002 (2) ARC 298, whereby the Apex Court has approved the judgment of this Court that this Court can consider part release of the accommodation. Learned Counsel for the petitioners further relied upon the decision in Badrinarayan Chunilal Bhutada v. Govindram Ramgopal Mundada, AIR2003 SC 2713 , JT2003 (1 )SC 438 , 2003 (1 )SCALE147 , (2003 )2 SCC320 , 2003 (1 )UJ726 (SC ), and prayed that in this view of the aforesaid judgment the matter may be referred to the court below for consideration of partial eviction of the tenants. Learned Counsel for the petitioners has further relied upon the decision of the Apex Court which has been followed by this Court that even if the question of part release has not been considered by the appellate authority, it can be raised for the first time before this Court under Article 226 of the Constitution of India. Thus, it is submitted by learned Counsel for the petitioners that even assuming that the findings arrived at by the appellate authority are liable to be upheld the order passed by the appellate authority deserves to be quashed and the matter may be remanded back to the appellate authority to decide at least the question of part release in favour of the petitioners.