JUDGMENT Vikram Nath, J.
1. This petition has been filed by the tenant for quashing of the judgment dated 10.9.2002 passed by XVIth Addl. District Judge, Kanpur Nagar in Rent Appeal No. 68 of 1999 filed by the landlord whereby the appeal was allowed and the release application of the landlord appellant Under Section 21 (1) (a) of U.P. Act No. 13 of 1972 was allowed.
2. Dispute relates to a shop in the premises No. 49/160 Nayaganj, Kanpur Nagar let out of a monthly rent of Rs. 30/- per month to the petitioner. Duly Chand Kanodia was the owner-landlord of the premises in suit. He has four sons, namely, Girish Chandra Kanodia, Anil Kumar Kanodia, Sunil Kumar Kanodia and Krishna Kumar Kanodia. All the four sons it was alleged were unemployed. Setting up a need for establishing business for his sons. Duly Chand Kanodia filed an application Under Section 21 (1) (a) of the Act for release of the premises in dispute against the petitioner. It was registered as P.A. Case No. 5 of 1996. During pendency of the said case Duly Chand died and his four sons as mentioned above and widow Smt. Kailashwati Kanodia were arrayed as respondents to the petition.
3. The petitioner contested the release application in the ground that the application has been filed malafide only to oust the petitioner. Landlord had no need at all as several other shops were lying vacant in the same building which could be used for setting up business of the portions and further that other shops had been vacated/released in favour of landlord but the landlord instead of retaining their possession, had let out them on higher rent to strangers.
4. The Prescribed Authority, after considering the material evidence on record vide judgment dated 15.3.1999 came to the. conclusion that the landlord had got possession of various parts of the building in dispute where he could set up his sons but having not done so, the need does not appear to be bonafide. On the said finding the Prescribed Authority, rejected the release application. Aggrieved by the said order, the landlord filed Rent Appeal No. 68 of 1999 under Section 22 of the Act. The appellate authority vide judgment dated 10.9.2002 held that the need of landlord was bonafide at after assessing comparative hardship, further held that in case the release application is not allowed, the landlord would suffer greater hardship. With this finding the appeal was allowed and the release application of landlord was also allowed with the direction to the petitioner to vacate the premises. Aggrieved by the judgment of appellate authority the tenant has filed the present writ petition.
5. At the time of the petition an interim order was granted to the petitioner on 1.11.2002, which was extended up to 13.11.2002 and subsequently further extended. Later on by order dated 30.4.2003 the petitioner was directed to deposit Rs. 10000/- (Rs. Ten thousand only) and only on such deposit the interim order was to continue. According to the petitioner he has deposited the said amount.
6. I have heard Sri Some Narain Mishra, learned Counsel for the petitioner and Sri R.N. Bhalla learned Counsel representing the respondents 2 to 6.
7. The contention of learned Counsel for the petitioner is that the appellate authority while recording the findings of bonafide need has failed to consider the evidence on record regarding release of various shops, which came into possession of the landlord. These documents had been considered by the Prescribed Authority, and therefore, the findings of bonafide need recorded by Prescribed Authority, is vitiated. On the contrary Sri R.N. Bhalla learned Counsel for the respondent contended that the bonafide need recorded by the appellate Authority is based on material on record and being a finding of fact cannot be interfered in writ jurisdiction.
8. The Prescribed Authority in its judgment has relied upon the extract of Khasra of Nagar Maha Palika of the period 1973-78, 1978-87 and 1983-92 filed by the petitioner to show that out of 23 tenements, 18 portions were in tenancy and four portions are still legally vacant. This was controverted by the landlord saying that entries in Khasra filed by the tenant were incorrect and he had applied for correction and corrected Khasra for the period 1992-1995 has deliberately not been filed by the tenant. The Prescribed Authority noted that even the landlord did not file Khasra of 1992-95. This fact goes against the landlord and the assertion of the landlord does not appear to be correct. Further the case set up by the landlord that the vacant tenements was being used as residential portion by four brothers is also not accepted by the prescribed authority as no specific occupation was disclosed. The Prescribed Authority, further took into consideration the evidence on record regarding release of shops in tenancy of Ram Dulare Verma and M/s. Ram Krishna Gulam Chand. The tenant petitioner had filed document to show that the shops in the tenancy of the aforesaid three tenants which had been vacated could have been utilized by the landlord but instead the landlord had proceeded to give possession of the shop to outsider on higher rent. The landlord had failed to give any reason or explanation regarding not utilizing the said premises vacated by the aforesaid three tenants. On consideration of all the evidence the Prescribed Authority, held that the need set up by the landlord was not bonafide. The judgment of the appellate Authority, does not disclose consideration of the evidences considered by the Prescribed Authority. It failed also to record reasons as to why these documents/evidences were not correctly considered by the Prescribed Authority. It was well within the jurisdiction of the Authority, to record different finding than that recorded by the Prescribed Authority, but under law it will have to consider the evidence and the reason given by the Prescribed Authority. In case the Appellate authority failed to consider the evidence and the documents on record its finding would be vitiated. Sri R.N. Bhalla learned Counsel for the respondent could not indicate from the judgment of the appellate Authority that the document considered by the Prescribed Authority, had in fact been considered by the appellate Authority before upsetting the findings of the Prescribed Authority. The finding of the appellate Authority of bonafide need cannot be sustained and has to be set aside.
9. In view of the observations made above, it is a fit case of remand of the case to appellate authority to record fresh finding of bonafide need after consideration of the material evidence on record which has been ignored, as observed above.
10. Accordingly writ petition succeeds and is allowed. The impugned judgment of the appellate Authority dated 10.9.2002 is set aside and the matter is remanded back to the appellate Authority for fresh decision. Since the release application of the landlord is pending from 1996 it would be appropriate that the appellate Authority may decide the appeal within a period of six months from the date of production of certified copy of this order. Both the parties will appear before the appellate Authority on 3.1.2005. The Counsel for the parties will inform their respective clients about the date.
11. Since the petitioner is in occupation of the shop for the last 40 years at a monthly rent of Rs. 30/- per month which has not been enhanced for the last 40 years and still wants to continue to retain the possession it would be appropriate that the landlord is suitably compensated by means of enhanced rent which has been fixed with the consent of the parties to be Rs. 1900/- per month from the date of first interim order dated 1.11.2002 passed by this Court. Counsel for the petitioner states that as he has already deposited Rs. 10000/- pursuant to the order dated 30.4.2003 the said amount may be adjusted in calculating the arrears due to be paid by the petitioner at the rate of Rs. 1900/- w.e.f. 1.11.2002. Such amount should be deposited within a period of two months and the current and future rent will be paid on month to month basis before 10th of each succeeding month.