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2012 Supreme(All) 1084
ALLAHABAD HIGH COURT
Shashi Kant Gupta, J.
Jan Mohammad -Appellant
Versus
Special Judge and another -Respondent
Writ-A. No. 8321 of 1989
Decided On : 24-04-2012
Counsel for the Petitioner: Pankaj Mittal , Sharad Kumar Pandey.
Counsel for the Respondents: Ajay Kumar Singh , Ashish Kumar Singh.
The court emphasized the importance of considering evidence and avoiding wrong legal assumptions in determining bonafide need and comparative hardship in rent control cases.
Headnote:
Rent Control - Release Application - UP Act No. 13 of 1972, Section 21(1)(a) - Summary of Acts and Sections: UP Act No. 13 of 1972, Section 21(1)(a) - The court discussed the petitioner's need for the shop, the evidence of appendicitis operation, and the comparative hardship in favor of the petitioner. The court found that the appellate court's decision was based on a misreading of the case and a wrong legal assumption, and upheld the Prescribed Authority's findings of bonafide need and comparative hardship.
Fact of the Case:
The petitioner filed a release application under Section 21(1)(a) of the UP Act No. 13 of 1972, claiming the need for the shop due to appendicitis operation and inability to continue hawking business.
Finding of the Court:
The court found that the appellate court's decision was based on a misreading of the case and a wrong legal assumption, and upheld the Prescribed Authority's findings of bonafide need and comparative hardship.
Issues: The issues revolved around the petitioner's genuine need for the shop and the comparative hardship faced by the parties.
Ratio Decidendi: The court held that the appellate court's decision was based on a misreading of the case and a wrong legal assumption, and upheld the Prescribed Authority's findings of bonafide need and comparative hardship.
Final Decision: The writ petition was allowed, setting aside the appellate court's order and upholding the Prescribed Authority's order releasing the disputed shop.
1. This writ petition has been filed against the judgment and order dated 8.2.1989 passed by the Special Judge/Additional District & Sessions Judge, Saharanpur in Rent Control Appeal No. 197 of 1995 whereby the judgment and order dated 30.8.1985 passed by the Prescribed Authority in P. A. Case No. 1 of 1984 was set aside.
2. The brief facts of the case as set out in the writ petition are as follows;
3. The petitioner is the owner and landlord of the shop in dispute along with Pucca Chabutra. The petitioner filed a release application under Section 21 (1) (a) of the UP Act No. 13 of 1972 (in short "Act") on the ground that at the time when the shop in dispute was let out to the Respondent No. 2 he was only 27 years of age and he used to sell utensils as a hawker without any requirement of a fixed shop.
4. As a hawker he used to go from door to door to sell the utensils. However, since the petitioner was suffering from appendicitis, he was operated upon and was advised to do only light work and not to carry any load especially while walking. As a result of which, the petitioner became incapable to carry on his business by hawking and therefore required the shop in dispute for carrying on business from the fixed place. It was further pleaded in the release application that his family consists of self, wife and four children and has to support his entire family from his utensils business. It was also stated that the father of the petitioner is a handicapped person aged about 70 years. His father has been assisting his younger brother in the shop, who is carrying on his independent business. The petitioner is living separately and he has no concern with the business of his father/brother.
5. It was pleaded in the release application that the Respondent No. 2 was carrying on a business of cloth on a small scale from the shop in dispute. It was further pleaded that the Respondent No. 2 has two sons and since both of them are employed, the Respondent No. 2 is not at all likely to suffer any hardship in case the disputed premises is vacated by him. It was specifically mentioned in the said application that the petitioner will utilize the shop in dispute after its vacation by the Respondent No. 2 only for the purpose of establishing himself in business.
6. The Respondent No. 2 filed his written statement denying and disputing the allegations made in the release application. It was stated in the written statement that the the petitioner, his brothers and father were living together and the petitioner who is already in possession of a shop is carrying on business of utensils with the help of his brother. It was also pleaded that the petitioner was not operated upon for appendicitis.
7. In support of his contention the petitioner filed his own affidavit stating that he was operated upon for appendicitis by one Dr. Krishan Lal Dutta and the marks of which are still visibile on his belly which can be examined by any doctor. The said marks were also noticed by the prescribed authority.
8. It was further stated by him in the said affidavit that the petitioner has no fixed place/shop for his business and therefore he requires the shop in dispute as he was incapable of carrying on his business by hawking. The petitioner also filed the affidavit of his brother Sharif Ahmad wherein he denied that the petitioner of doing business of utensils from his shop. It was further stated by him that after the operation, his brother (the petitioner) became incapable to carry on business by hawking on cycle. It was also denied that they were all living jointly.
9. In support of his contention, the petitioner filed a certificate issued by Dr. K. L. Datta certifying that the petitioner was operated by him for appendicitis on 9th September 1983. The petitioner also filed affidavit of some other witness in support of his case.
10. The prescribed authority after careful appreciation of entire evidence available on record vide its judgment and order dat
