RAJEEV SETHI Vs. SHIV SHANKAR AGARWAL

JUDGEMENT

(1.) A release application was filed by the respondent-landlord under section 21(1)(a) of the U.P. Act No. 13 of 1972 (in short "Act") for the need of his son for doing business. In the release application, the landlord prayed that the shop was required for his son who intended to carry on business. The petitioner filed his written statement and contested the matter. The Prescribed Authority, after considering the material available on record, allowed the release application by order dated 13.10.2010. Being aggrieved and dissatisfied with the order dated 13.10.2010, the petitioner filed a Rent Control Appeal No. 15 of 2010 and the same has been dismissed by the Additional District Judge, Court No. 4, Mathura on 24.1.2012. Hence, the present writ petition. Learned Counsel for the petitioner has submitted that the landlord had sold off one of his shop situated just adjoining the disputed shop just 18 days before the filing of the release application and the application under section 21 of the Act was filed mainly on the ground that the son of the landlord Nitin requires the disputed shop for running his independent business even though he was already carrying on business in a rented premises. It was further submitted that since the son of the petitioner was already carrying on business in a rented shop, there was no occasion for him to shift his business to the disputed shop, particularly when no legal proceeding for eviction was pending against him. Lastly, it was submitted that the Court below has not considered the question of partial release of the disputed premises in order to balance the equities between the parties.

(2.) Per contra, Sri Rahul Sahai, learned Counsel for the respondent has supported the impugned order and submitted that the Appellate Court, after considering the material available on record, dismissed the appeal and affirmed the judgment and order passed by the prescribed authority. He further submitted that in fact the sale-deed was executed by the landlord of an open piece of land adjoining the disputed shop. The said property was not in the nature of a shop. It was further submitted that no plea of partial release of the disputed shop was ever taken by the petitioner. It was further submitted that the last assessment of the adjoining "the so-called 'shop'" as alleged by the petitioner was made in the year 1993 and since it was in a dilapidated condition it later on collapsed, as such, the sale-deed was executed for an open piece of land and not of a constructed portion/shop as is quite evident from the sale-deed. He further submitted that the petitioner neither in his written statement nor before the Trial Court or even before the Appellate Court had taken the plea of partial release of the disputed shop, as such, this plea cannot be taken for the first time before this Court. It was further submitted that the son of the landlord is carrying on business in the rented shop, as such, he cannot be prevented from running the business from his own shop.

(3.) Heard learned Counsel for the petitioner and Sri Rahul Sahai, learned Counsel for the respondent and perused the record.