JAMILUR REHMAN QIDWAI ISLAMIYA GIRLS INTERMEDIATE COLLEGE THROUGH ITS MANAGER AND ORS. Vs. DISTRICT JUDGE AND ANR.

JUDGEMENT

(1.) THIS is a petition for issuing a writ in the nature of certiorari quashing the impugned judgment and order dated 31.5.2005 passed by the opposite party No. 1, the District Judge, Barabanki as contained in Annexure No. 1 to the writ petition. Opposite party No. 2 Waris Rasheed Qidwai is the landlord of the disputed house known as 'Naseman' bearing Municipal No. C/5 -R (A), Civil Lines, Nawabganj, Near Roadways Bus Station, Barabanki. The petitioner No. 2 is the tenant in this disputed premises and is running a School in the name of the petitioner No. 1. Opposite party No. 2 Waris Rasheed Qidwai who was the Secretary General in Standing Conference of Public Enterprises, an autonomous organization recognized by the Government of India, retired from the said post on 31.3.1992 and moved an application under section 21(1)(a) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter to be referred as 'Act') for the release of the building on the ground of his bona fide need in October, 1993. This release application was contested by the petitioners by filing written statement. The Prescribed Authority dismissed the application holding that the release application made by the opposite party No. 2 is not maintainable being hit by section 21(8) of the Act and further need was not bona fide and genuine. The opposite party No. 2 filed an appeal on 12.8.1999. This appeal was allowed by holding that the need of the landlord is not only genuine but also bona fide. It was held in appeal that the release -application was not barred by section 21(8) of the Act. On comparison of the respective hardship of the petitioner, it was held that the opposite party No. 2 would suffer greater hardship than that of the petitioners in case the release -application is rejected. The Appellate Court granted time to vacate the premises by 30.5.2000. The petitioners filed Writ Petition No. 25 (R/C) of 2000. The writ petition was allowed upholding the bona fide and genuine need of the landlord and maintainability of the application but at the same time, this Court held that the opposite party No. 2 had retired from a very lucrative, responsible and high post, he can very well arrange for alternative accommodation of residence in small town like Barabanki. The landlord, the opposite party No. 2 filed a Special Leave Petition (Civil) No. 4092 of 2000 and this Special Leave Petition was got dismissed as withdraw on 18.7.2000. The opposite party No. 2 thereupon filed a review petition before this Court but this review petition was dismissed. The opposite patty No. 2 being aggrieved against the order passed in Review Petition No. 230(W) of 2000 again filed a Special Leave Petition and it was converted into a Civil Appeal No. 6595 of 2001. This appeal was allowed by the Supreme Court on 1.9.2004 and the case was remanded to this Court to re -hear the review petition on the question of comparative hardship. It was observed that this Court if, inclined can remit the matter to the Appellate Court for assessing the comparative need of the parties. After remand, the review petition was heard in this Court and the matter was remitted back to the Appellate Court namely; the opposite party No. 1, the District Judge, Barabanki to decide the appeal afresh only on the point of comparative hardship. The questions that the landlord has bona fide need and the application is not hit by section 21(8) of the Act, were not permitted to be re -opened. It was directed that the Appellate Court will decide the matter within four months from the date of receipt of the copy of the judgment.

(2.) AFTER the judgment in review petition on 23.12.2004 by this Court, the opposite party No. 2, the landlord made an application for clarification/modification of the judgment dated 23.12.2004 passed in the review petition. During the pendency of the application for clarification, the opposite party No. 2 filed a supplementary affidavit annexing the copy of the supplementary affidavit filed before the Supreme Court and the photographs showing the constructions raised by the petitioners over the land acquired in pursuance to the permission accorded by the Prescribed Authority. The petitioners filed objections by annexing the building plan of accommodation in dispute prepared by an Architect on Scale as Annexure No. 17 -A as well as the building plan of the construction already existing and the constructions raised by the petitioners over the land acquired by them. This application for clarification was disposed of by this Court on 9.2.2005. It was clarified by observing that this Court did not express any opinion on the point of comparative hardship and directed that the matter be decided by the Appellate Court and it was also directed that the observations made in the last but one Para of the Judgment dated 23.12.2004 should not be construed to mean that this Court has expressed any opinion on that point. During the pendency of the appeal after the remand, the petitioners moved an application for issuing a commission but the Appellate Court dismissed this application on 16.5.2005. The petitioners moved an application for review of the order dated 16.5.2005 but this review application was also dismissed. The opposite party No. 1 ultimately allowed the appeal after considering the comparative hardship of the parties vide impugned judgment dated 31.5.2005 (Annexure No. 1). It is against this judgment; this writ petition has been filed. The latest judgment of this Court is the judgment in Review Petition No. 230(W) of 2000 dated 23.12.2004 (Annexure No. 9) and certain observations were made by this Court on the application for clarification moved by the opposite party No. 2. The relevant portion of the judgment of this Court in Review Petition No. 230(W) of 2000 is as follows:

(3.) AFTER the aforesaid judgment, another order was passed by this Court on 9.2.2005 (Annexure No. 22) on the clarification application. The relevant portion of this order is as follows: