Mohammed Ishaq vs District judge,Kanpur and Others

Yatindn Singh, J.—One Smt. Shamshul Jehan mother of respondent Nos. 3 and 4 filed an application for release of shop in question on the ground that it is required for her son Rizwan Ahamad (respondent No. 3) under Section 21(1) (a) Of the U.P. Urban Building (Regulation of Letting, Rent and Eviction) Act, 1972 (the Act). She died during the pendency of the proceeding. Thereafter respondent Nos. 3 and 4 who are her heirs were impleaded. Subsequently the application filed by her was allowed by the prescribed authority on 891981. Thereafter, the petitioner''s appeal was dismissed on 16th February 1982, hence the present writ petition.

I have heard Sri S.P. Mehrotra, counsel for the petitioner. No one has put in appearance on behalf of respondents 2 and 3. Sri S.P. Mehrotra challenged the finding recorded by the Court below so far as bona fide needs of landlord are concerned. According to him, the Courts below have not considered the evidence on record which goes to show that there was no need to bona fide requirement.

There were two shops: In one shop petitioner was tenant and in other shop one Mohd. Shafi was tenant. But need which was set up was that respondent No. 3 is making wooden boxes on pavement and it is for his need that the application was filed. Even after shop, which was occupied by Mohd. Shafi was released in favour of the landlord, it was mentioned that that in the shop which was released by Mohd. Shafi, respondent No. 3 will manufacture wooden boxes and the shop in dispute is required for storing the boxes. The Courts below has upheld this plea of respondent Nos. 3 and 4 and have allowed their application. During pendency of this application respondent No. 3 has filed a rejoinder affidavit before the prescribed authority. This is Annexure 1A to the writ petition. In paragraph 5 of the rejoinder affidavit it has been mentioned that the shop which was released by Mohd. Shafi is being used for the business of general merchandise and PMC. Chappals that is to say the case set up by landlord that he will manufacture wooden boxes in the shop released by Mohd. Shafi is incorrect. In case respondent No. 3 is not manufacturing wooden boxes then there is no question of storage of the same. This evidence is not considered by the Court below. Apart from it the petitioner had stated in paragraphs 27 to 29 of the writ petition that respondent No. 3 is not carrying any business of manufacturing wooden boxes and as such there is no question of requirement for storage of the same. There is no counter to the same. The finding recorded by the appellate Court regarding bona fide need for storing the wooden boxes is without considering the admission made by the respondent No. 3 himself.

In view of the same the judgment of the appellate Court dated 1621982 is quashed. The matter is sent back to appellate Court to pass a fresh order after considering the evidence on record.