Court No. - 19
Case :- WRIT - A No. - 24838 of 2018 Petitioner :- Baldev Raj Ahuja Respondent :- Smt. Jyoti Singh And 2 Others Counsel for Petitioner :- Manish Tandon,P.K. Jain (Sr. Advocate) Counsel for Respondent :- Rajeev Trivedi
Hon'ble Manoj Kumar Gupta,J.
Heard Sri P.K. Jain, learned senior counsel assisted by Sri Manish Tandon for the petitioner and Sri Rajeev Trivedi for the respondents. With their consent, the instant writ petiiion is being decided finally, without inviting a formal counter affidavit.
The writ petition arises out of orders passed in proceeding under Section 21(1)(a) of U.P. Act No. 13 of 1972 (hereinafter referred to as 'Act'). A release application was filed under the said provision by the respondents (hereinafter referred to as 'landlords') setting up need of Smt. Jyoti Singh (respondent No. 1). It was alleged that she would start a business of selling imported vegetables from the shop in the tenancy of the petitioner. She claimed that she had no other alternative accommodation to start the said business. The release application was contested by the petitioner inter alia on the ground that there were several vacant shops in the same market from where she could start her business. Thus, the alleged need of respondent No. 1 for the shop in dispute was specifically denied. The Prescribed Authority by an order dated 28.7.2016 allowed the release application and directed for eviction of the petitioner. Aggrieved thereby, the petitioner filed Rent Control Appeal No. 8/2016, which was disposed of by judgment dated 28.4.2018. The release order passed by the Prescribed Authority was modified to the extent that the petitioner was held entitled to 'L' shaped shop near ATM or alternative shop situated on Parsadi Lal Road, as a condition for vacating tenanted shop. Aggrieved by the order of the Appellate Authority, the petitioner as well as the respondents filed separate petitions before this Court under Article 227 of the Constitution and both these petitions were heard and decided by a common order dated 30.5.2018. The Court with consent of counsel for the parties quashed the appellate order and remitted the matter back to the Appellate Authority for deciding the appeal a fresh. In pursuance thereof, the Appellate Authority has taken a fresh decision whereby, the appeal filed by the petitioner has been dismissed by judgment dated 5.10.2018 and he has been granted six month's time to vacate. Aggrieved by the said judgment, the instant petition has been filed.
Sri P.K. Jain, learned senior counsel assisted by Sri Manish Tandon appearing on behalf of the petitioner invited the attention of the Court towards finding recorded by the Appellate Authority while deciding issue No. 1 relating to bona fide need of respondent No. 1. He points out that the plea of the petitioner that ten shops are lying vacant in Tyagi Market belonging to the respondents and the alleged need of respondent No. 1 could be fulfilled by starting business from any of these ten vacant shops was specifically noted. Thereafter, the Appellate Authority noted the case set-up by the respondents by referring to plaint of Case No. 31/2005 brought on record along with list 58Ga. In paragraph 4 & 6 thereof, it is noted, that the plaintiff had mentioned about her other business and coaching. The Appellate Court thereafter without discussing the case of the parties and the evidence led by them in that regard and also without recording any reason as to how these shops were not available to the landlords jumped to a finding that no vacant shop is available with the landlords and accordingly held that need of respondent No. 1 is bona fide. It is submitted that without discussing the pleadings and the evidence and also without recording any reason, the Prescribed Authority has erroneously jumped to a conclusion that no vacant shop is available and that need is bona fide. According to him, such a finding is not sustainable in law.
Learned counsel for the landlords is not in a position to point out to any discussion made by the Appellate Authority in regard to rival pleas raised by them on the said aspect. He, therefore, very fairly agreed for the appellate judgment being quashed and the matter being remitted back to the Appellate Authority for deciding the issue of bona fide need as well as other issues, after taking into consideration the pleadings of the respective parties and documentary evidence on record.
Accordingly, the impugned judgment of the Appellate Court dated 5.10.2018 is quashed. The matter is remitted back to the Appellate Authority to decide the appeal a fresh in the light of observations made above, expeditiously, preferably within a period of three months from the date of receipt of certified copy of this order.
The writ petition stands disposed of as above.
(Manoj Kumar Gupta, J.) Order Date :- 26.11.2018 AM/-