KAMAL KUMAR Vs. HARI SHANKAR

JUDGEMENT

(1.) ANJANI Kumar, J. By means of present writ petition under Article 226 of the Constitution of India, the petitioner-tenant of shop in dispute has chal lenged the order dated 26th October, 2004, passed by the Prescribed Authority under the provision of U. P. Act No. 13 of 1972 (In short 'the Act') and the order dated 16th February, 2006 passed by the Appellate Authority under the Act', whereby the Appellate Authority dis missed the appeal filed by the petitioner-tenant against the order of the Prescribed Authority by which reled application filed by the respondt it landlord was allowed, the copies whert of are annexed as Annexure Nos. 7' and '9', respectively to the writ petition.

(2.) THE brief facts are that initially father of the petitioner, namely Banarsi Das was tenant of the accommodation in question, which is a shop, which was let out by the father of the respondent, namely Lala Ram Gupal. THE landlord Lala Ram Gupal had earlier filed an ap plication under Section 21 (1) (a) of the U. P. Act No. XIII of 1972 (In short 'the Act'), against said Banarsi Das in the year 1986. During the pendency of the aforesaid application before the Prescribed Authority, both the landlord and the tenant died and their heirs have been substituted in their place. THE substitution was allowed by the order dated 25th May, 1989. Against the order dated 25th May, 1989, the petitioner and one of his brother filed an appeal before the Appellate Authority, which was allowed vide order dated 1st February, 1990. THE order dated 1st February, 1990 was challenged by the present respondent-landlord and other heirs of deceased Lala Ram Gupal before this Court in the year 1990. It is further stated that during the pendency of writ petition before this Court, a family partition took place and the accom modation in dispute has come in the share of present landlord. This matter was brouoht to the notice of this Court during the pendency of earlier writ peti tion. This Court directed the present landlord that he may file fresh applica tion. Since after partition of the Firm all movable properties have been divided among all the five brothers and shops have been partitioned between the two brothers in which these brothers and their sons are carrying on their busi ness. THE present landlord was un employed, therefore, in this cir cumstance, he took a shop on rent, which was only five sq. Mtr. in area and started the business of money lending (Sahukar) and the sons of landlord are also helping the landlord in this busi ness. That due to inadequate income in the business of Sahukari, goldsmith business has also been started by landlord in same rented shop. THE landlord further stated that he has sear ched a bigger shop, but failed to get the same. It is further contended that his elder son Vivek after completing his en gineering degree in the year 1995 was employed with M/s. Synthetic and hemicals Factory, Bareilly, but in the year 2000 the said factory was closed down. In the year 2001 the landlord took agency of pot polish etc. so that his son may be engaged in this agency busi ness. For the purposes of storing these items, there is no place as Godown and therefore, he filed application under Section 21 (1) (a) of 'the Act' before the Prescribed Authority for release of the shop in dispute in his favour on the ground that for the reasons, as already stated above, the shop in dispute is a perfect place where person who are in the business of Factory and chemical for their purchase are visiting daily. It is further contended that in the shop in dispute the tenant is running his busi ness of supply of goods outside. Thus the landlord requires a shop situated in the market where he can do his busi ness which cannot be done anywhere. THE petitioner-tenant denied the allega tions made in the application for release filed by the landlord and stated that after the death of Lala Ram Gupal, father of the landlord and Banarsi Das, father of the tenant, all the heirs of deceased inherited the tenancy of tenant and landlord and since date of partition has not been given by the landlord anywhere, therefore, the present application is liable to be rejected as all the heirs of deceased Lala Ram Gupal landlord are not im-pleaded. THE petitioner-tenant further contended that in the accommodation in question, earlier the mother, father, sisters brothers and family of the landlord were residing, but now they have shifted as either they have con structed their own house or they have purchased their own houses, therefore, the landlord has sufficient accommoda tion in the house where he is residing which can be utilised by the son who can run his business of chemical and other materials very well in the accom modation where the landlord is resid ing. If the landlord in fact requires a shop, he would not have let out the other shop which was available to landlord when one Hari Shankar Jai Shankar who has been given possession by the landlord when the said shop was vacated by Laxmi Narayan. THE tenant further contended that he has two sons, one daughter-in-law, two grand- daughters, including his wife and since the present business is only livelihood of their family, therefore, he will face irreparable loss and more hardship than the landlord, as the landlord is rich man who has many business including the Brick klin and other business, therefore, the require ment alleged by the landlord is not only false, but also concocted, therefore, the present application is liable to be rejected.

(3.) LEARNED Counsel for the petitioner-tenant submitted that the findings arrived at by the Prescribed Authority and affirmed by the Appellate Authority suffer from the manifest error of law, but has failed to demonstrate that the findings arrived at by the Prescribed Authority and affirmed by the Appellate Authority with regard to bona fide need and the comparative hardship of the landlord in any way either perverse, or are suffering from the manifest error of law. LEARNED Counsel for the petitioner- tenant further sub mitted that the view taken by the Prescribed Authority and affirmed by the Appellate Authority are such on which no reasonable person can come. The aforesaid contention of learned Counsel for the tenant cannot be ac cepted in view of the law laid down by the apex Court in the case reported in 2004 (2) JCLR 400 (SC): (2004) 3 Supreme Court Cases 682, Ranjeet Singh v. Ravi Prakash, wherein the Apex Court has held that High Court will not appreciate evidence like an, appellate Court by re-appreciating or re-evaluat ing the evidence while exercising su pervisory jurisdiction under Article 226 of the Constitution. In this view of the matter, this writ petition has no force and is liable to be dismissed.