RAM CHANDRA KAPIL Vs. JAGMOHAN CHANDRA PANDEY

JUDGEMENT

(1.) BY means of this petition, moved under Article 226 of Constitution of India, the petitioner/tenant has sought writ in the nature of certiorari quashing the judgment and order dated 26-3-1990 (in RC case No. 06/1982) passed by the Prescribed Authority, Nainital and judgment and order dated 22-11-1985 (R.C. App. No. 26/1985) passed by III Additional District Judge, Nainital.

(2.) BRIEF facts of the case as narrated in writ petition, are that petitioner is a tenant in the shops in question bearing Nos. 7 and 8 in ground floor of Tourist Hotel, Bhowali, on rent at the rate of Rs. 1200/- per year. Original landlord of said shops was Sri Nand Kishore (since dead) father of the respondent No. 1 Jag Mohan Chandra Pandey. The respondent No. 1 moved an application (Rent Control Case No. 06/1982) under Section 21(1)(a) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, for release of the shops in the year 1982, on the ground that he needs the shops for opening restaurant and dining hall. It is alleged in the petition that the petitioner himself was running restaurant in the shop in question. It is also alleged that respondent No. 1 was not alone to inherit property of Sri Nand Kishore and cannot be said to be sole landlord. The petitioner filed written statement and contested the application for release of the shops before the Prescribed Authority pleading that neither the respondent No. 1 is sole owner nor his need is bona fide and nor is there greater comparative hardship in his favour. By way of amendment in written statement it is further stated that during pendency of proceeding respondent No. 1 has got constructed big room in which his requirement of dining hall can be fulfilled. It is also pleaded by the petitioner (tenant) that need of the landlord can be got fulfilled from other shops Nos. 3 and 4 also. The Prescribed Authority, after taking evidence of parties and hearing them, not only found need of the landlord (respondent No. 1) as genuine and bona fide but also gave the finding that there is greater hardship in his favour as against the tenant. Aggrieved by said order, the tenant (petitioner No. 1) prepared Rent Control Appeal No. 26 of 1985, under Section 22 of U.P. Act 13 of 1972. However, after hearing the parties, respondent No. 2 (III Additional District Judge) dismissed the same vide his order dated 26-3-1990. Hence, this writ petition by the tenant challenging both the orders passed by authorities below on the ground that the said authorities committed gross illegality in holding need of the landlord bona fide and the accepting his case of greater hardship. It is also alleged in the writ petition that the respondent No. 1 was not sole owner. The petitioner further alleged in the writ petition that the Courts below have erred in law by ignoring the Commissioner's report. During the pendency of writ petition both petitioner Sri Ram Chandra Kapil and respondent No. 1 Sri Jag Mohan Chandra Pandey died and their widows got substituted on the basis of said development. Subsequently it is stated by way of amendment that the substituted respondent had failed to plead her need as required under Clause (7) of Section 21 of U.P. Act 13 of 1972. Lastly it is pleaded that the petitioner's restaurant has earned good will and cannot be shifted elsewhere.

(3.) IN the rejoinder affidavit contents of paras 9 and 10 of the counter affidavit are admitted which relate to the averments that the different business being run by the sons of the petitioner and also to the effect the petitioner owned a three storeyed house, of which one shop is let out by him. In the additional rejoinder affidavit in substance, the earlier averments are reiterated.