KRISHNA PRASAD Vs. TARUN KUMAR MALLICK

JUDGEMENT

(1.) Heard learned counsel appearing on behalf of the parties.

(2.) The petitioners, who are heirs of tenant Munni Lal, are residing in the premises in question, are carrying on occupation of shoes repairing, as is clear from the assertion made in the application filed by the landlord under Section 21 (1) (a) of the U.P. Act No. 13 of 1972, hereinafter referred to as the 'Act', aggrieved by the order dated 18th March, 1992, passed by the prescribed authority, whereby the release application filed by the landlord was allowed, copy' whereof is annexed as Annexure-4 to the writ petition, approached the appellate authority by means of appeal under Section 22 of the Act, which has been dismissed by the appellate authority vide its order dated 15h March, 2002, copy whereof is annexed as Annexure-12 to the writ petition. These are two orders which have been challenged by the petitioners by means of present writ petition under Article 226 of the Constitution of India.

(3.) In short, the facts of the present case are that the landlord-contesting respondent filed an application under Section 21 (1) (a) of the Act before the prescribed authority for the release of the premises in question for his personal requirement. The prescribed authority considered the case of the respective parties and arrived at the finding that the need of the landlord is bona fide and comparatively more pressing than that of the tenant, therefore, allowed the application and released the premises in question in favour of the landlord. Aggrieved thereby the tenant-petitioners preferred an appeal before the appellate authority under Section 22 of the Act. The appellate authority dismissed the appeal and affirmed the order passed by the prescribed authority with the finding that the need of the landlord is bona fide and the tilt of the comparative hardship is in favour of the landlord. Sri Pankaj Mithal, learned counsel appearing on behalf of the tenant-petitioners argued that from the narration of the facts in the application under Section 21 (1) (a) of the Act, it is apparent that the requirement of the release of the premises in question is for non-residential premises, inasmuch as the landlord has asserted that in case the shop in question is released in his favour, his wife will start a general merchant business in which he will also help his wife after his retirement, who is likely to be retired from service. On the strength of the aforesaid assertion, Sri Mithal submitted that since it is admitted case of the parties that the premises in question is purely a residential and the release sought for is for establishing a general merchant business by wife of the landlord. Sri Mithal further contended that the release sought for is in fact for non-residential purposes and in view of the third proviso to Section 21 (1) (a) of the Act, which is reproduced below, the prescribed authority as well as the appellate authority has committed manifest error of law, therefore, this application ought to have been rejected by the prescribed authority :