RAM CHANDRA KAPIL Vs. JAG MOHAN CHANDRA PANDE

JUDGEMENT

(1.) BY means of this petition, moved under article 226 of Constitution of In dia, the petitioner/tenant has sought writ in the nature of certiorari quash ing the judgment and order dated 26-03-1990 (in RC case No. 06/1982) passed by the Prescribed Authority, Nainital and judgment and order dated 22-11-1985 (RC App. No. 26/1985) passed by III Additional District Judge, Nainital.

(2.) BRIEF facts of the case as nar rated in writ petition, are that petitioner is a tenant, in the shops in question bearing No. 7 and 8 in ground floor of Tourist Hotel, Bhowali, on rent at the rate of Rs. 1200/- per year. Original landlord of said shops was Sri Nand Kishore (since dead) father of the re spondent No. 1 Jag Mohan Chandra Pandey. The respondent No. 1 moved an application (Rent Control Case No. 06/1982) under Section 21 (1) (a) of U. P. Urban Building (Regulation of Let ting, Rent and Eviction) Act, 1972, for release of the shops in the year 1982, on the ground that he needs the shops for opening restaurant and dining Hall. It is alleged in the petition that the pe titioner, himself was running restaurant in the shop in question. It is also al leged that respondent No. 1 was not alone to inherit property of Sri Nand Kishore and can not be said to be sole landlord. The petitioner filed written statement and contested the application for release of the shops before the Pre scribed Authority pleading that neither the respondent No. 1 is sole owner nor his need is bonafide and nor is there greater comparative hardship in his fa vour. By way of amendment in written statement it is further stated that dur ing pendency of proceeding respondent No. 1 has got constructed big room in which his requirement of dining hall can be fulfilled. It is also pleaded by the petitioner (tenant) that need of the landlord can be got fulfilled from other shops No. 3 and 4 also. The Prescribed Authority, after taking evidence of par ties and hearing them, not only found need of the landlord (respondent No. 1) as genuine and bonafide but also gave the finding that there is greater hard-Ship in his favour as against the tenant. Aggrieved by said order, the tenant (petitioner no. 1) Prepared Rent Contro1 Appeal No. 26 of 1985, under Section 22 of U. P. Act 13 of 1972. However, af ter hearing the parties, respondent No. 2 (III Additional District Judge) dis missed the same vide his order dated 26-03-1990. Hence this writ petition by the tenant challenging both the orders passed by authorities below on the ground that the said authorities com mitted gross illegality in holding need of the landlord bonafide and the ac cepting his case of greater hardship. It is also alleged in the writ petition that the respondent No. 1 was not sole owner. The petitioner further alleged in the writ petition that the courts below have erred in law by ignoring the Commissioner's report. During the pendency of writ petition both peti tioner Sri Ram Chandra Kapil and re spondent No. 1 Sri Jag Mohan Chandra Pandey died and their widows got substituted on the basis of said de velopment. Subsequently it is stated by way of amendment that substituted re spondent had failed to plead her need as required under Clause (7) of Section 21 of U. P. Act No. 13 of 1972. Lastly it is pleaded that the petitioner's restau rant has earned good-will and can not be shifted elsewhere.

(3.) I heard learned counsel for the parties and perused the record.