May - High Court of Judicature at Allahabad

2All] Vinay Kumar Madhok V. Om Prakash and others 41
finding on the point of ‘Comparative
Hardship’ (recorded by the Prescribed
Authority). The Appellate Authority, Vide its
judgment and order dated 3.11.1999
(annexure-2 to the Writ Petition) allowed the
appeal, set aside the judgment and order dated
8 th January, 190 passed the Prescribed
Authority (Annexure –1 to the Writ Petition)
directed the landlord to pay compensation
equivalent to two years rent within 15 days,
tenant to vacate the premises within 30 days
and hand over its peaceful possession to the
landlord.
9. Respondent no.2 and 3. (Prescribed
Authority and Appellate Authority) have
been served through the office of Chief
Standing Counsel, Contesting parties have
exchanged Counter Affidavit and Rejoinder
Affidavit.
10. Taking into account the fact that
Release was filed in 1987 (thirteen years
before) and to avoid further delay, Writ
Petition is heard finally at admission stage and
none of counsels representing the parties had
objection to it.
11. Case was heard at length on merit on
17 th and 18the January, 2000 and then
adjourned to 20 th January, 2000 to enable the
learned counsel for the petitioner to contact
his client and seek instructions to take time to
vacate the accommodation and settle the
matter amicably.
Case is being taken up again today and
matter has been heard afresh on merit, since
the learned counsel for the petitioner stated
that petitioner, on being contacted informed
him that he will contest the case on merit and
there is no scope to settle.
12. Learned counsel for the petitioner in
his argument attempted to assail the finding
on ‘Bona-fide need’, on the ground that
Appellate Authority has not referred to one
room measuring 10’ x 5’ and admittedly, in
possession of the landlord as noted in the
judgment of the Prescribed Authority.
13. Appellate Authority has, it is true, not
specifically referred to the accommodation
measuring 10’x5. The said space, as a matter
of fact, not a regular room according to the
landlord but a store (10’x 5’) attached to the
shop, hence not a room to be used for regular
living purpose.
14. It has, however, been submitted by the
Petitioner if the room 10’x 5’ (said to be
store) is taken into account it will vitiate the
appellate judgment.
15. Learned counsel for the contesting
respondent no.1 / landlord submitted that
tenant did not lay emphasis on this store to be
counted as room before the Appellate
Authority and it is now not open to the
Petitioner to challenge appellate judgment on
this score-particularly when there is no
categorical averment in the writ petition that
Appellate Court ignored it in the writ petition
that Appellate Court ignored it in spite of it
being referred to as separate regular room.
Secondly – Prescribed Authority was
conscious of the said store in possession of
the landlord and recorded finding of fact on
the question of bona fide need which has been
affirmed by the Appellate Authority.
Store measuring 10’ x 5’, cannot be said to
be an independently room when, admittedly,
it is attached to the room in possession of the
landlord and used as shop. Hence this store
cannot be counted as ‘room’ while
considering the need of the landlord for
residential purpose.
16. According to the respondent/landlord
even otherwise, finding of the appellate
authority, on the question of the extent of the
need of the landlord cannot be vitiated, even if
this store is being taken into account and the
ultimate conclusion arrived at by the
Appellate Authority will remain the same.