Mumtaz Begun vs District Judge and another

B.K. Rathi, J.—The premises in dispute is shop No. 63/2 situated in Mohalla Ganeshganj, district Jalaun, The petitioner is landlady of the same. She moved an application against respondent No. 2 for release of the disputed shop u/s 21 (1) (a) of U. P. Act No. XIII of 1972. (here-in-after referred to as an ''Act''). The application for release is Annexure-1 to the petition, in which she alleged that she had eight sons and three daughters. That her son Noor Mohd. has taken diploma in technical education. That he could not find any suitable service and, therefore, want to establish himself in the disputed shop by starting business connected with motor mechanism. It is contended that there is no other place for him to start the business and, therefore, he is unsettled in life.

Learned prescribed authority allowed the application for release on 6.8.1984 by judgment, Annexure-2 to the petition. Against that order, the respondent No. 2 preferred Appeal No. 20 of 1994, u/s 22 of the Act. The same have been allowed on 15.11.1994 by order, Annexure-3 to the petition and the release application has been rejected and the order of the prescribed authority has been set aside.

The petitioner landlady has, therefore, approached this Court under Article 226 of Constitution of India to quash the impugned order, Annexure-3 to the petition and restoration of the order, Annexure-2 to the petition.

I have heard Sri U. K. Mishra, learned counsel for the petitioner. None has appeared for respondent No. 2 inspite of service.

It is no doubt true that the landlady petitioner has a very large family. There is also concurrent findings regarding the fact that her son Noor Mohd. has obtained the diploma in technical education and is without any employment. Therefore, the need is bona fide. The prescribed authority has also held that the balance of hardship tilts in her favour.

However, the appellate court has held that the landlady petitioner got vacated three rooms on the ground floor in Misc. Cases Nos. 244 of 1973, 245 of 1973 and 246 of 1973 from three tenants ; Mohd. Zafar Ali, Mubaraq and Aziz Ahmad. It has been held by the appellate court that Noor Mohd. can start business in one of these rooms.

Regarding this, it is contended by the learned counsel for the petitioner that it is a residential accommodation. This fact has also been mentioned by the appellate court. It is contended that applications for release of above rooms were filed alleging that they are required for residential purposes. That these rooms have been released for residential need of the landlady. That they are required for residence and they cannot be used for setting up business.

In my opinion, the approach of the appellate court was totally erroneous. The rooms which have been specifically got released u/s 22 (1)(a) of the Act for residential purposes cannot be directed to be used for the shop. Therefore, the order of the appellate court is against the facts and law and is liable to be quashed. It may also be mentioned that the finding regarding hardship of the prescribed authority has not been disturbed by the appellate court. Therefore, I find that prescribed authority has rightly held that need for the shop is bona fide and hardship tilts in favour of the petitioner.

Accordingly the petition is allowed. The order passed in Appeal No. 20 of 1994, dated 15.11.1994. Annexure-3 to the petition, is quashed and that of the prescribed authority, dated 6.8.1994, Annexure-2 to the petition is restored.