RAM KISHUN Vs. DASHRATH

JUDGEMENT

(1.) This is a writ petition under Article 226 of the Constitution of India by the petitioner who is aggrieved by order dated 21st August, 1997, passed by the prescribed authority under the provisions of U.P. Act No. 13 of 1972 (in short the Act) and the order dated 24th December, 2004, passed by the appellate authority under the Act.

(2.) The facts giving rise to the present writ petition are that in the year 1965 petitioner's mother, Pyari Devi, was inducted as tenant of the portion in dispute and also some more portion on the back side. In 1973 Smt. Pyari Devi died. She had two sons, one the petitioner and the other Ram Lakhan. In the front portion of the accommodation in dispute Smt. Pyari Devi was running a shop and in the back portion she was living. A release application was filed by the landlord under Section 21 (1)(a) of the Act for release of the shop occupied by the petitioner and for back room occupied by the petitioner. This release application filed by the landlord was allowed in part by the prescribed authority by order dated 16th November, 1979. The back room in occupation of the petitioner was released in favour of the landlord and so far as shop was concerned, the application for release was dismissed by the prescribed authority. The petitioner as well as landlord preferred appeal against the order of prescribed authority dated 16th November, 1979, before the appellate authority under the Act. The appellate authority by its order dated 12th October, 1982, dismissed both the appeals, namely, filed by the petitioner as well as the appeal filed by landlord and the order of release of back portion has become final. It appears that after about 11 years the landlord filed the present application for release of the shop in dispute, which remained in possession of the petitioner, for his bona fide requirement for setting down his sons in business. During the pendency of the present release application before the prescribed authority an application was filed by the petitioner for spot inspection and report by an Advocate Commissioner. The prescribed authority by its order dated 28th February, 1995, appointed Sri Narendra Dwivedi as Advocate Commissioner who submitted his report. The petitioner filed his objection to the report filed by the Advocate Commissioner. The landlords also filed their objection to the report of the Advocate Commissioner. The prescribed authority by its order dated 21st August, 1997, arrived at a conclusion on the basis of pleadings and evidence on the record that the need of the landlord is bona fide and that the tilt of comparative hardship is also in favour of the landlord. The prescribed authority has rejected the contentions raised by the petitioner that on a similar application in the year 1979 half of the then accommodation under the tenancy of the petitioner was released, therefore, the present application is barred by principle of res judicata.

(3.) Aggrieved thereby the petitioner preferred an appeal under Section 22 of the Act. On 23rd July, 2004, during the pendency of appeal, the petitioner filed a fresh application for spot inspection which was rejected by the appellate authority by its order dated 30th September, 2004. The appellate authority by its order dated 24th December, 2004, affirmed the findings arrived at by the prescribed authority regarding bona fide need of the landlord and also regarding comparative hardship. Thus, the appeal filed by the petitioner has been dismissed. Aggrieved thereby the petitioner preferred the present writ petition.