DINESH CHANDRA Vs. DISTRICT JUDGE

JUDGEMENT

(1.) This petition arises out of the proceedings tinder Section 21 of the U. P. Act No. XIII of 1972. The facts, in brief, are these. The respondent No. 2 Deewan Singh moved an application under Section 21 of the Act against the petitioner for the release of the shop in dispute. A true copy of the said application is An nexure. C. A. 1 to the counter-affidavit. The petitioner contested the applica tion and the same was dismissed by the Prescribed Authorities by his order dated 1-9-1980, a true copy of which is Annexure 1 to the petition. Thereafter, an appeal was filed by the respondent No. 2 and the same was allowed by the appellate Court by its judgment dated 5-6-1981, a certified copy of which is on the record and marked Annexure 2 to the petition. Feeling aggrieved, the petitioner has row come up in this writ petition, In support thereof I have heard Sri L. M. Pant, learned counsel for the petiti oner and in opposition, Sri S. C. Verma, learned counsel for the respondent No. 2 has made his submissions. The learned counsel for the petitioner contended that the appellate Court was of the view that it did not have any jusridiction in the dispute In question and in this connection a reference was made to para 5 of the impugned appel late judgment which is as under:- "the first point that was urged before me is that the lease of the Opposite party-respondent was for a fixed period of one year only and, therefore, the respondent cannot be given any protection under such a fixed term 'ease and in this connection M/s. Gur Narain Jagat Narain and Co. Lucknow v. M/s Motor and General Sales Ltd. Lucknow and others (1980 A. L. J. 508), has been cited. I am respectfully bound by this view. " Sri Pant contended that the observations in para 32 of the said decision are in the nature of obiter and they do not lay down the real basis on which the deci sion was given in the said case. In other words, they do not constitute the ratio of the said case decided by the Hon'ble Chief Justice. He has further con tended that the said observation cannot be taken to be correct. The learned Chief Justice placed reliance on the proviso to Section 20 (1) of the Act for making the observation made in paragraph 32 of the said decision. The counsel's con tention is that the said proviso is applicable only when the tenancy for a fixed term has been entered into by, or, in pursuance of a compromise or adjustment arrived at with reference to a suit, appeal, revision or |execution proceedings, which is either recorded in Court or otherwise reduced to writing. The said proviso has nothing to do with Section 21 and if the same were taken to be applicable to the proceedings under Section 21, then it will mean that the needs of the tenant for a fixed term shall never be taken into consideration. In my view, the submissions made by the learned counsel is based on misconception, the learned Chief Justice did not lay down in the said case that the proviso to Section 20 of the Act was in terms applicable to the proceedings under 21 of the Act. Obviously that is not so under the Act. If the proviso were appli cable to proceedings under Section 21 then there would have been no need to consider the bona-fide needs of the landlord and the question of hardship. In the reported decision all these questions were considered and thereafter the learned Chief Justice emphasised that U. P. Act No. XIII of 1972 did not look with favour to give protection to the tenant who takes the lease on a fixed term basis. The learned Chief Justice has merely laid down an aspect of equity in emphasising that a tenant who takes a lease for a fixed term is merely bound to restore the possession to the landlord on the efflux of the period of lease. However, despite the said observation, the learned Chief Justice did go into the question of the bona-fide need of the landlord and the question of comparative hardship in the reported case. In the same manner in my view, the appellate Court in the impugned judgment has gone into both the controversies whether the need of the landlord was genuine and who will be put to greater hardship in case the building was released. The learned counsel contends that really these questions have not been considered in the manner in which they should have been considered because the mind of the District Judge was affected by the aforesaid observations made by the learned Chief Justice in the said case. I cannot accept this contention The next contention of Sri Pant is this. He says that on all the disputed questions regarding the genuineness of the need of the landlord there is really no finding by the appellate Court and in fact, there was no application of the mind on the said aspect of the matter. Again I regret, I cannot accept this contention. It should be seen that the landlord had come forward with the case that he had only one son who had incurred losses in Thekedari and that he wanted to settle his son in a business in the shop in question. The District Judge has broadly accepted the said version. He has found that the landlord is an old roan and this is clear from the copy of the application under Section 21 of the Act which is stated above, is Annexure C. A. 1 to the counter-affida vit. The age of the landlord is 72 years as shown in the said application. It has not been denied that he has only one son, and it has been accepted by the District Judge that the old man would like to settle his son in the shop in question. Certain aspects have been emphasised by the learned counsel that the son has not been found to have incurred losses in the Thekedari business. Further, it has not been shown that he really wanted to do the business in the shop. In my view, taking into consideration the nature of the jurisdiction under Article 226 of the Constitution, I cannot go into the said aspect of the matter, 1 do not think that there is any jurisdictional error in the impugned judgment of the appellate Court. I cannot act as an appellate Court in a petition under Article 226 of the Constitution (See Bhabhutmal Rai Chand Oswal v. Laxmi Bai R. Tarte and another (A. I. R, 1975 S. C. 1297 ). The learned counsel lastly contended that the finding regarding hardship was also bad in law. In my view, this contention can also not be accepted within the narrow abmit of a petition under Article 226 of Constitution. I should like to say that it has not been shown that the finding returned can in any manner be said to be without any evidence to support it. The petition fails and is dismissed but there will be no order as to costs. Learned counsel for the petitioner prayed that some reasonable time be granted to the petitioner to vacate the shop in dispute. On an undertaking given that peaceful possession of the shop will be delivered to the landlord after three months from the date of this judgment, I grant three (3) months to the petitioner to vacate the shop in dispute. .