LAWS(ALL)-2005-8-319

ASHOK KUMAR ALIAS MAKHAN Vs. JUGAL KISHORE

Decided On August 16, 2005
Ashok Kumar Alias Makhan Appellant
V/S
JUGAL KISHORE Respondents

JUDGEMENT

(1.) By means of present writ petition under Art. 226 of the Constitution of India, the petitioner-tenant challenges the orders dated 29th Sept., 2004; 3rd Feb., 2005 and 31st May, 2005, passed by the Prescribed Authority as well as by the appellate authority, copies whereof are annexed as Annexures-'10', '12' and '13'to the writ petition, whereby the Prescribed Authority allowed the application filed by the respondent-landlord under Sec. 21 (1) (a) of the U.P. Act No. XIII of 1972 (In short 'the Act') and directed release of the shop in dispute in favour of the landlord on the ground that the landlord bona fide requires the accommodation in dispute in which the shop in dispute is situated and on appeal filed by the tenant-petitioner, the appellate authority affirmed the findings arrived at by the Arescribed Authority on the question of bona fide need as well as on the question of comparative hardship and dismissed the appeal filed by the tenant-petitioner. Thus this writ petition.

(2.) The facts leading to the filing of present writ petition are that the respondent-landlord filed an application under Sec. 21 (1) (a) of the Act for release of the shop in dispute for settling down the younger son, namely, Dharm Raj Gupta in his business. Thus, the need of the landlord is bona fide and that the tilt of the comparative hardship is also in favour of the landlord. The petitioner-tenant contested the aforesaid release application filed by the landlord. The Prescribed Authority on the basis of materials of record have arrived at the conclusion that the need of the landlord is bona fide and that the tilt of the comparative hardship is also in favour of the landlord. The Prescribed Authority further found that the previous history of the litigation between the landlord as well as the tenant as a consequent whereof in a compromise, the tenant had handed over the possession of one shop to the landlord, wherein he has set up his elder son and will have no impact so far as the requirement of present shop in concerned, as the same is required for settling down the younger son in his business. Learned Counsel for the tenant-petitioner filed an application for issuing Commission for inspection and much emphasis have been given that the said inspection note of the Commissioner has not been considered, which form part of the inspection note is in favour of the tenant. The appellate authority without considering the Commissioner's report affirmed the findings with regard to bona fide need of the landlord as well as the comparative hardship in favour of the landlord and dismissed the appeal filed by the tenant-petitioner.

(3.) Before this Court, same arguments were advanced by learned Counsel for the petitioner-tenant as were advanced before the appellate authority. Learned Counsel for the petitioner-tenant could not demonstrate that the findings arrived at by the Arescribed Authority and affirmed by the appellate authority regarding bona fide need of the landlord as well as the comparative hardship either suffer from the manifest error of law, or are perverse, so as to warrant any interference by this Court in exercise of jurisdiction under Art. 226 of the Constitution of India, as it is settled view of law that this Court cannot sit in appeal over the findings arrived at by the Arescribed Authority and affirmed by the appellate authority.