1. Heard Sri M.K. Gupta, learned counsel appearing for the petitioner in Writ Petition No. 39727 of 2004 (for short 'the first petition') and for respondent in W.P. No. 48077 of 2004 (for short 'the second petition'); Sri S.M. Nazar Bukhari, Advocate for respondent No. 4 (first petition) and for respondent No. 3 in the second petition as well as Sri Vikrant Pandey for the respondent No. 1-landlord ( in first petition) and for petitioner in the second petition.
2. The brief facts of the case are that there were four shops situated at Kasba Behat, Jaitpur Sadan, Building Mohalla Maniharan, Pargana Faizabad, Tehsil Behat, District Saharanpur, out of which, two were under the tenancy of Mohd. Ahmed, the petitioner (in first petition) and two under the tenancy of Mohd. Iqbal, the respondent No. 4 (in first petition).
3. Dr. Atma Ram Chauhan, the respondent No. 1-landlord (in first petition) filed an application under Section 21(1)(a) of The Uttar Pradesh Urban Buildings (Regulation of Letting, Rent And Eviction) Act, 1972 (hereinafter referred to as 'the Act 1972'), seeking release of two of the aforesaid four shops either from the tenancy of the petitioner (in first petition) or from the tenancy of respondent No. 4 (in first petition). The shops under the tenancy of respondent No. 4-Mohd. Iqbal were addressed as "Shop Mad -A" and those in possession of the petitioners were titled as "Shop Mad-B".
4. The trial Court allowed the application vide judgment/order dated 7.1.1994 holding need and comparative hardship of landlord as genuine and bona fide. Thereafter, acting upon the choice expressed by landlord, in the affidavit filed before the trial Court, released two shops i.e. "Shop Mad-A"under the tenancy of respondent No. 4 and he was directed to vacate the same. Against the aforesaid judgement, two appeals were filed i.e. one by respondent No. 4 and other by petitioner (in first petition). Both these appeals were decided by Appellate Court vide order/judgment dated 24th August, 2004, whereby, it has confirmed the judgment of the Trial Court on the need of the landlord but with modification that release application though shall stand allowed and one pair of shops would be released but instead of "Shop Mad-A" the "Shop Mad-B" in the tenancy of Mohd. Ali Ahmed- petitioner no. 2 (in first petition) were released and accordingly his ejectment was directed. The possession thereof was ordered to be delivered to landlord.
5. Sri M.K. Gupta, learned counsel for the petitioners (in first petition) contended that in changing shops from the tenancy of respondent No. 4 to that of the petitioner-tenant, the Lower Appellate Court has not recorded any reason and passed order in a wholly illegal, arbitrary and discriminatory manner. The landlord at no point of time changed his preference from "Shop Mad-A" to "Shop Mad-B" hence, the appellate Court was not justified to make the said change in the order of Trial Court.
6. Sri Bukhari, on the contrary, appearing for respondent No. 4 (in first petition) submitted that in view of what has been discussed by Lower Appellate Court in Paras 18, 30 and 55, it is evident that in the application, there was no option or preference shown by landlord and subsequent addition in the affidavit was contrary to the procedure prescribed in the statute and that the preference shown by landlord having become infructuous subsequently the Lower Appellate Court has changed the shops from the tenancy of the respondent No. 4 to that of the petitioner (in first petition) and that finding of fact warrants no interference.
7. So far as the learned counsel for the landlord is concerned, he maintained that his preference for shop is still continuing and the judgment of Trial Court should be maintained. His stand to this effect is clear from Writ Petition No. 48077 of 2004, in which Sri Vikrant Pandey, the learned counsel for the petitioner-landlord and Sri S.M. Nazar Bukhari for the respondent No. 3 and Sri M.K. Gupta, learned counsel appearing for the two sets of the tenants are the counsels.
8. From the record, it is evident that the Trial Court after finding the requirement of landlord genuine, bona fide and also the fact that comparative hardship lies in his favour, release of shops which were shops i.e., "Mad-A" for which the land lord has shown preference. When the landlord himself has shown his preference before the Trial Court and an affidavit to this effect has also been filed, there was no reason for the Trial Court not to believe and follow the same which engaged itself in old wild goose chase to form a particular opinion by considering the comparative hardship of two tenants which was not necessary to be looked into at all in this. Unfortunately, the Appellate Court has committed this manifest error by comparing the hardship of two sets of tenants among themselves and despite that has changed the set of shops which were released to the landlord by directing the petitioner (first petition) to vacate the shops under his tenancy, instead of that of respondent No. 4 (first petition).
9. Sri Bukhari, learned counsel for respondent No. 4 (first petition) stated that when the preference was not shown in the application itself, it would not have been disclosed in a subsequently filed affidavit as this would be against the procedure prescribed in the statute but failed to show any such provision which stood violated by such affidavit filed by the landlord. The Court also found that the respondent No. 4(first petition)-tenant enjoyed much better financial status and has other commercial accommodations with him vis-a-vis the petitioner (first petition). Before this Court also, Sri Vishal Pandey, advocate appearing on behalf of the landlord stated at the bar that the landlord maintained his preference for the "Shops Mad-A" which are in possession of the tenant-respondent No. 4 in first petition and he is also aggrieved by the Appellate Court's judgment to the extent it has changed the sets of shops by modifying the Trial Court's order.
10. In view of the above facts and circumstances, in my view, the appellate order to the extent it has modified Trial Court's judgment, cannot sustain and is accordingly quashed. The writ petition is allowed.
11. Both the writ petitions stand decided accordingly.
12. There shall be no order as to costs.
Order Date :- 22.8.2012 Arun K. Singh