IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 3072 of 2001 (M/S) (Old No. 17544 of 1999) [ 1. Madan Lal 2. Mohan Lal Both sons of Sri Lalloo Mal R/o Badri Nath Marg, Kotdwar, District Garhwal. ...…………. Petitioners Versus 1. District Judge, Pauri Garhwal. 2. Prescribed Authority / Civil Judge (Junior Division), Kotdwar. 3. Harish Satija 4. Sunil Satija 5. Banti Satija All three S/o late Sri Sahib Rai Satija R/o Malviya Udhan, Kotdwar, District Garhwal. 6. Smt. Anita Gulathi R/o A-15-G, Nehru Ground, N.I.T., Faridabad, Haryana. 7. Smt. Sushma Sahgal W/o Sri Ashok Sahgal Gali No. 3, Shanti Lawn, Devpura, Haridwar. 8. Smt. Shashi Verma W/o Sri Nagendra Verma R/o H.No. 721, Dwarikapuri Jagadhari, Hariyana. ...………… Respondents Mr. Arvind Vashistha, Advocate for the petitioners. Mr. B.D. Upadhyay, Advocate for respondent No. 3. Hon’ble Prafulla C. Pant, J. By means of this writ petition, moved under Article 226 read with Article 227 of the Constitution of 2 India, the petitioners have sought writ in the nature of certiorari quashing the impugned order dated 25.02.1999, passed by the District Judge, Pauri Garhwal, in Rent Control No. 09 of 1998, whereby the said court has allowed the appeal, and set aside the order dated 10.02.1998, passed by the Prescribed Authority, in P.A. Case No. 13 of 1994, releasing the accommodation, on application of the landlords moved under Section 21(1)(a) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (for short U.P. Act No. 13 of 1972). 2) Heard learned counsel for the parties and perused the affidavit and counter affidavit filed on behalf of the parties. 3) Brief facts of the case are that the petitioners are landlord of a building situated in Jhanda Chowk, Badrinath Marg, Kotdwar, District Pauri Garhwal, in which a shop was in the tenancy of one Sahib Rai Satija, from whom the tenancy has been inherited by respondent No. 3 to respondent No. 8. Out of said joint tenants, it was only the respondent No. 3 who was doing his business in aforesaid shop. The petitioner No. 1 / landlord moved an application under Section 21(1)(a) of the U.P. Act No. 13 of 1972, for release of the shop in his favour on the ground that his four sons have grown up and are to be settled in business. It is further pleaded by the landlord that the comparative 3 hardship is also more in favour of the landlord as against the tenants. The application was contested by the respondents 3 to 5, who filed their written statement before the Prescribed Authority, in which it was pleaded by them that the need of the landlord is not genuine and bonafide. It is further pleaded by them that comparative hardship on eviction, will be more to the tenants as compared to the landlord. It is further pleaded that the petitioners earlier moved one similar application against another tenant Deepak Kumar Mahrotra, and said matter is still subjudice before the High Court. The Prescribed Authority after recording the evidence and hearing the parties found that the need of the landlord is genuine. It also held that the comparative hardship is more in favour of the landlord as against the tenants. Accordingly, vide order dated 10.02.1998, passed in P.A. Case No. 13 of 1994, release application of the petitioners was allowed. Aggrieved by said order, the tenants filed Rent Control Appeal No. 09 of 1998 before the District Judge, Pauri Garhwal. Said court, after hearing the parties, taking into consideration that the matter relating to release of another shop was still pending before the Allahabad High Court, remanded the matter back to the Prescribed Authority vide his order dated 25.02.1999, before setting aside the order dated 10th of February 1998, passed by Prescribed Authority. Hence, this writ petition was filed before the Allahabad High Court by the landlords from where it is received by transfer to 4 this Court under Section 35 of the U.P. Re-organization Act, 2000 (Central Act No. 29 of 2000), for its disposal. 4) In the counter affidavit filed on behalf of the respondents it has been admitted that the Prescribed Authority allowed the release application of the landlords, and the appellate court remanded the matter to the Prescribed Authority. It is further stated in the counter affidavit that the impugned order passed by the appellate court suffers from no illegality. It is further stated that the grounds raised in the writ petition challenging the impugned order passed by the appellate authority are not tenable in law. It is pleaded that the respondent No. 1 was wholly within its competence and jurisdiction in remanding the matter to the Prescribed Authority. 5) Admittedly, the petitioners are landlords and respondents No. 3 to 5 are the tenants in the shop in question. It is also not denied that the petitioner No. 1 Madan Lal has four sons and he moved an application for release of the shop on the ground that his sons are grown up and required to be settled in business. However, as to the need of the landlords it is disputed by the contesting respondents that the sons of the petitioners No. 1 are not settled. Parties appear to have led their evidence before the Prescribed Authority in the form of affidavits, in which on behalf of the petitioners it is brought on record by petitioner No. 1 that his sons 5 are unemployed and require the shop for running their business. On the other hand, on behalf of the contesting respondents evidence was adduced that Ripu Daman Aggarwal, one of the sons of the petitioner, had already opened a Steel Furniture shop, after taking loan from the U.P. Finance Corporation at some distance from Kotdwar. The Prescribed Authority, after discussing the evidence of both the sides, found that merely for the reason that one of the petitioner’s son had opened a shop at some distance from Kotdwar after taking loan, does not mean that the petitioner’s need for settlement of his sons in the business is not genuine. It is contended on behalf of the contesting respondents before this court that the petitioner’s sons are settled in business. I have gone through the order passed by the Prescribed Authority and found that it has discussed the evidence at length before coming to the conclusion that the need of the landlord to settle his sons in the business in the shop in question is bonafide. 6) The appellate court while setting aside the order passed by the Prescribed Authority has not reversed the finding that the need of the landlord is not genuine. What it has said is that since another shop was also sought to be vacated by the landlord and in respect of said shop litigation is pending in the High Court, as such, it is difficult to adjudicate whether the need of the landlord is genuine, or not? In the opinion of this Court the approach adopted by the appellate court is 6 erroneous in law. Merely for the reason that the landlord sought release of another shop which has yet not been handed over to the landlord, cannot dilute the need of the landlord. Apart from this, the appellate court has totally closed its eyes to the fact recorded by the Prescribed Authority that the petitioner No. 1 has four grown up sons, two of them are married and are to be settled in business. Even if one shop which was earlier sought to be vacated, and possession of which has yet not been given to the landlord, it cannot be said that his need to settle his other sons in business is not genuine. Otherwise also, by remanding the matter to the Prescribed Authority, the appellate court has led the parties nowhere and created a confusing situation for the Prescribed Authority also, as the fact relating to pendency of the writ petition in respect of the another shop on the basis of which appellate court says it could not adjudicate the bonafide need, remained there. 7) Having heard learned counsel for the parties and after going through the impugned order passed by the District Judge and the order passed by the Prescribed Authority, and after considering the affidavits of the parties, this Court is of the view that the appellate court has committed grave error of law in remanding the matter after setting aside the order of the Prescribed Authority without reversing the finding recorded by the Prescribed Authority (after discussing the evidence), for fresh decision. Therefore, this Court is of the view that 7 the impugned order passed by the District Judge, Pauri Garhwal, in Rent Control Appeal No. 09 of 1998, is liable to the quashed. 8) Accordingly, the writ petition is allowed. The impugned order dated 25.02.1999, passed by the District Judge, Pauri Garhwal, in Rent Control Appeal No. 09 of 1998, is hereby quashed. The order dated 10.02.1998, passed by the Prescribed Authority, in P.A. Case No. 13 of 1994, is restored. However, considering the facts and circumstances of the case, the respondents No. 3 to 5 are allowed time upto 31st of March 2010, for vacating the premises and handing over the same to the landlord, failing which the order passed by the Prescribed Authority may be got executed. No order as to costs. (Prafulla C. Pant, J.) Dt. September 07, 2009. H. Negi