Court No. - 19
Case :- WRIT - A No. - 9417 of 2018 Petitioner :- Sardar Arjun Pal Singh Respondent :- Taushiq Ahmad Khan And 4 Others Counsel for Petitioner :- Siddhartha Srivastava Counsel for Respondent :- Ramendra Asthana,Ramendra Asthana Hon'ble Manoj Kumar Gupta,J.
Heard Sri Siddhartha Srivastava, counsel for the petitioner and Sri Ramendra Asthana for respondents.
The instant writ petition is directed against an order dated 29.1.2018, whereby the Prescribed Authority has rejected applications 113-A and 116-A filed by the petitioner in P.A. Case No.15 of 2013. By means of application 113-A, the petitioner prayed for summoning Taushik Ahmad (landlord) in witness box for cross-examination. By the other application 116-A, the petitioner prayed for rejection of the release application as not maintainable on account of non-applicability of U.P. Act No.13 of 1972 to the shop in his tenancy.
The petitioner is tenant of a shop owned by the landlord- respondent no.1. He filed a release application for release of the shop in the tenancy of the petitioner under Section 21(1) (a) of U.P. Act No.13 of 1972. The release application was allowed by the Prescribed Authority by order dated 28.8.2014. In appeal filed by the petitioner against the said order, the Appellate Authority remanded the matter to the Prescribed Authority for deciding the question as to whether part release of the shop is possible or not and in case it is possible, a further direction was issued to fix rent of part of shop, which would remain in the tenancy of the petitioner. While the matter was pending before the Prescribed Authority, the petitioner filed the above referred applications. He alleged that a notice was issued by the landlord to one Mohd. Arif, tenant of another shop in the same building alleging that U.P. Act No.13 of 1972 was not applicable. Based on the said notice, the petitioner prayed for rejection of the release application as not maintainable. The court, by impugned order, rejected the said application observing that firstly, the petitioner had not taken any such plea in the written statement before the Prescribed Authority and secondly, on the ground that the shop in the tenancy of Mohd. Arif is a separate tenement and it is quite possible that it would have been built at a later point of time. The application filed by the petitioner seeking cross-examination of the landlord on the said aspect was also rejected. Aggrieved thereby, the instant writ petition has been filed.
During the pendency of the instant writ petition, the petitioner filed an application Paper No.118 Ga seeking amendment in the written statement in order to introduce a plea to the effect that U.P. Act No.13 of 1972 is not applicable to the premises in question. The said application was rejected by the Prescribed Authority by order dated 28.4.2018 and aggrieved whereby, he filed Writ-A No.12064 of 2018 before this Court. This Court disposed of the said writ petition by order dated 18.5.2018 observing that under the remand order, the Prescribed Authority was required to go into a limited aspect regarding part release of the shop and consequently, the plea sought to be introduced by the petitioner in the written statement could not be allowed. However, it was left open to the petitioner to take ground in this regard in the event the release application is ultimately decided against him and the matter is taken up in appeal. The observations made by this Court while disposing of the writ petition by order dated 18.5.2018, are worth reproducing:-
"I have also perused the order passed by the Appellate Authority dated 12.2.2016 remanding the matter on the limited issue that it was the statutory duty of the Prescribed Authority to consider whether partial release of the shop in question would have satisfied the bonafide need of the landlord, and therefore, the whole matter was not re-opened by the Appellate Authority to be considered afresh by the Prescribed Authority.
Now, by means of this amendment application, the petitioner / tenant is trying to set up a new case altogether, which they cannot do on remand of the matter on a limited issue by the Appellate Authority. Therefore, this Court does not find any good ground to show any interference in the order impugned.
However, it shall be open for the petitioner / tenant to take this ground as well as any other ground open to them in law, if and when the release application is eventually allowed by the Prescribed Authority and they have occasion to file Appeal against the such order.
The writ petition is disposed of with the aforesaid observation."
This Court has already declined to entertain request made by the petitioner for amendment of the written statement for introducing plea that U.P. Act No.13 of 1972 is not applicable. Based on same reasoning, this Court declines to interfere with the order impugned herein. Needless to observe that the said issue would be available to the petitioner for being raised in appeal, in case ultimately final decision of the Prescribed Authority goes against him.
With the aforesaid observations, the writ petition stands disposed of.
(Manoj Kumar Gupta, J) Order Date :- 29.11.2018 SL