JAL DEVI Vs. THE IV ADDL. DISTRICT JUDGE

JUDGEMENT

(1.) IN this writ petition, counter and rejoinder affidavits have been exchanged by the parties and 'their learned counsel are agreed that the writ petition may be heard and decided finally at this stage. The facts giving rise to this writ petition are that Anil Kumar, respondent No. 3 filed an application under Section 21(1)(a) of U.P. Act No. 13 of 1972 (hereinafter referred to as 'Act') on 23rd January, 1985 for release of the shop No. 765 situate in Mohalla Sadar Bazar, Qasba Jaswant Nagar, district Etawah. In the shop one Shiv Narain was tenant, now represented by petitioners No. 1 to 6, of the said shop on the rent of Rs. 34 per month. It was further stated that after death of Shiv Narain on 28th May, 1978 present petitioners became tenants being legal heirs. However they are not carrying on any business in the shop which is generally kept closed. They are wealthy persons and have many properties. It has been further stated that Anil Kumar applicant was unemployed though he was aged about 29 years and the shop in dispute was required for his personal use. It was further stated that he has two brothers Saneh Kumar and Laxmi Kant who were living separately since the time of his father and are carrying on their separate business. The requirement of the applicant for the shop in dispute is bona fide and genuine and in case it is not released in his favour he shall suffer great hardship. Petitioners filed joint objection and contested the application for release inter alia on the ground that no gift -deed has been executed in favour of respondent No. 3, he is not unemployed, the shop left by Banwari Lal is in his occupation alone and which is situated in front of the shop in dispute and he is doing business from there. It was further submitted that the landlord has shops in his residential accommodation and he can start business from there also. It was also pleaded in defence that the present application is barred by res -judicata as the application for release was moved by father of the respondent No. 3 in 1977 which was dismissed upto the appellate stage by order dated 12th February, 1980 which has become final. The need alleged in that application was about respondent No. 3 which was not accepted. It was also pleaded that the respondent No. 3 has large number of agricultural -holdings in district Shahjahanpur and is getting huge income from the same and he has no need of the shop in dispute.

(2.) BEFORE Prescribed Authority both parties adduced evidence oral and documentary and after hearing them application was allowed by order dated 3rd February, 1990, on payment of two years rent by respondent No. 3 as damages The order of the Prescribed Authority' was challenged in appeal which has been dismissed by the appellate authority vide its order dated 1st October, 1992. Aggrieved by the aforesaid orders, the petitioners have approached this Court under Article 226 of the Constitution.

(3.) LEARNED counsel for the petitioners has submitted that size of the shop in dispute is 12' x 40' and the need of the respondent No. 3 can be satisfied by releasing only part of it. However the authorities below have failed to consider this aspect of the case and have committed manifest error of law. It has been submitted that the provisions of Rule 16(1)(d) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972 here -in -after referred to as 'Rules' are mandatory and are applicable to the non -residential accommodation also. The authorities ought to have considered the principles of eviction and letting contained in rules, as observed by this Court and Hon'ble Supreme Court in various authorities. The impugned orders are vitiated and cannot be sustained for non -observance of the aforesaid mandatory provisions. Learned counsel for the petitioner has placed reliance on the following cases in support of the aforesaid submissions: - -