JUDGMENT
Anjani Kumar, J.
1. This writ petition is filed by the petitioners under Article 226 of the Constitution of India against the order dated 16th February 2000 passed by the prescribed authority under the provisions of U.P. Act No. 13 of 1972 (hereinafter referred to as the Act) and order dated 28th May, 2001 passed by the appellate authority under the Act.
2. The brief facts are that Smt. Heera Gupta, respondent, and her husband Kishori Lal Gupta were the landlords of the accommodation in dispute which is a shop. On 8th March, 1984 both the landlords filed release application under Section 21(1)(a) of the Act against two tenants, the petitioner and one Hukamchand jointly for the release of both the shops. It appears that on 17th May, 1984 the application against both the tenants, namely Hukamchand and the present petitioner J.P. Gupta was allowed ex parte and both the shops were directed to be released in favour of landlords.
3. Petitioners filed application for setting aside ex parte order dated 25th May, 1984 so far as it relates to petitioners’ shop. However. Hukamchand the other tenant did not file any application for setting aside ex parte order for release and the release order became final and ultimately the possession of the shop which was in possession of Hukamchand, the second tenant, was delivered to the landlords. On 5th February, 1993 ex parte order dated 25th May, 1984 directing the release of the shop of the petitioner was set aside by the prescribed authority. On 17th May, 1984, Kishori Lal Gupta, the landlord died. An application for amendment/substitution was filed on behalf of landlords and by the aforesaid amendment application the need of Smt. Heera Gupta and Km. Tanu, the daughter of Kishori Lal Gupta, was set up though in the original release application the need of Kishori Lal Gupta and Pradeep Kumar Gupta was set up. Parties have adduced evidence before the prescribed authority. The prescribed authority without judging and considering the bona fide requirement of the landlords allowed the release application by its order dated 16th February, 2000. The petitioner tenant aggrieved by the order passed by the prescribed authority filed an appeal before the appellate authority. The appellate authority by its order dated 28th May, 2001 dismissed the appeal filed by the petitioners. Thus this writ petition.
4. Learned Counsel for the petitioner has submitted that both the prescribed authority as well as the appellate authority have erred in arriving at the findings regarding bona Side in favour of the landlord-respondent. Learned Counsel further submitted that in the original application filed by Sri Kishori Lal Gupta and Smt. Heera Gupta the need of Kishori Lal Gupta and their son Pradeep Kumar Gupta was set up. After the death of Kishori Lal Gupta by an amendment moved on 6.10.1993 fresh need of Smt. Heera Gupta and Km. Tanu was set up. In the original application filed in the month of March 1984 the need of Pradeep Kumar Gupta was set up on the basis of fact that he is carrying on business of manufacturing of Tarpaulins in the name and style of M/s. M.B. Tarpaulins and second business of Arms and Ammunition in the name and style of M/s. Prism Gun House and third business of manufacturing and sale of exercise books under the name and style of M/s. Neharika Industries whereas after the amendment due to death of Kishori Lal Gupta the need was set up. That the shop in dispute is required for Km. Tanu the daughter of Smt. Heera Gupta, who will run a cloth business. It is admitted case of the landlords that they have got possession of the shop which was in tenancy of Sri Hukamchand after filing of the application of release. It is also not in dispute that during the pendency of the matter before the prescribed authority and the appellate authority the shop which was in possession of Hukamchand was handed over to the landlords. Km. Tanu whose need has been set up after the death of Kishori Lal Gupta was married and settled in U.S.A. It is also not disputed that during the pendency of the appeal the shops owned by the landlords fell vacant and they were let out by the landlords on higher rents one to M/s. H.M. Sales Corporation in the month of March, 1994 and another let out to the Institute of Computer Centre. That with regard to the need for Pradeep Kumar Gupta regarding his shop of arms and ammunition this is also available on the record that he has shifted his gun business shop to Meston Road in the Premises No. 39/80 Meston Road, Kanpur which shop was allotted to Pradeep Kumar Gupta by the Rent Control Officer by order dated 14th September, 1981. It is also submitted by learned Counsel for the petitioner that in the Suit No. 135 of 1988 filed by the Bank of Baroda against M/s. M.B. Tarpaulin Industries and its partner Smt. Madhu Gupta, a written statement was filed on behalf of the landlords that Tarpaulin and Neharika Industries has been closed by Gupta. Sri Pradeep Kumar Gupta also appeared in the suit and stated that tarpaulin business was closed since January, 1984 and the written statement referred to above was filed by the tenant petitioners in the proceedings before the prescribed authority. Learned Counsel further submitted that the need of Heera Gupta and Km. Tanu was introduced by amendment after the death of Kishori Lal Gupta. Smt. Heera Gupta was aged about 75 years and she has absolutely no experience about the business and she has all through been housewife and so far as Km. Tanu is concerned she is married and staying in U.S.A. This position has been admitted in the documents that were filed on behalf of the petitioners. It is also submitted by learned Counsel for the petitioner that the fact of landlord getting possession of the shop which was occupied by Hukamchand, who vacated the same, has also not been considered qua bona fide of the landlords.
5. Learned Counsel for the petitioners relying upon the decision of Apex Court in the case of Kedar Nath Agarwal v. Dhanraj Devi , and the decision in B. Kanda Swami Raddiar v. O. Gomathi Ammal JT 1998 (6) SC 527, has submitted that subsequent events which came in existence during the pendency of appeal or release application ought to have been considered by the authorities which admittedly having not done so and arbitrarily arrived at the finding that the need of the landlords is bona fide deserves to be quashed. Learned Counsel for the petitioners further laid stress on his argument that from the abundance of evidence on the record which are either not considered or have been cursorily referred to without considering the same, the prescribed authority arrived at the conclusion that the need of the landlords is bona fide is, without application of mind and contrary to the law laid down by the Apex Court, referred to above. So is the order of the appellate authority, who has affirmed the findings without considering the evidence on record.
6. Learned Counsel for the petitioner has further submitted that the finding regarding comparative hardship also suffers from manifest error but without going into that aspect of the matter the learned Counsel for the respondent-landlords was asked to justify the finding arrived at by the prescribed authority and affirmed by the appellate authority. Learned Counsel for the landlord-respondent has relied upon the observation made by the appellate authority who held that these are concurrent findings of fact which should not be disturbed by this Court in exercise of jurisdiction under Article 226 of the Constitution of India in view of law laid down by the Apex Court in the case of Surya Dev Rai v. Ram Chander Rai . On the question of consideration of subsequent development learned Counsel for respondent has relied upon the decision of Gaya Prasad Srivastava v. Pradeep Srivastava. In view of what has been stated above learned Counsel for respondent has submitted that this Court should not interfere with the impugned orders and the writ petition is liable to be dismissed.
7. I have gone through the findings recorded by the prescribed authority and affirmed by the appellate authority. So far as bona fide is concerned I find that the orders suffer from manifest error of law. Even according to the decisions relied upon by the learned Counsel for the respondent since the findings are perverse and suffer from manifest error of law I find that the petitioners have made out a case for interference by this Court under Article 226 of the Constitution of India. So far as reliance by the learned Counsel for the respondent in the case of Pradeep Srivastava (supra) is concerned, suffice is to say that the case of Pradeep Srivastava is considered in the case of Kedar Nath Agrawal (supra). In my opinion the case of Kedar Nath Agrawal (supra) will prevail over the decision of Pradeep Srivastva (supra) and admittedly the appellate authority has since not considered the subsequent development, namely, the development that took place after filing the application under Section 21(1)(a) namely, the vacation of shop by Hukamchand, the other tenant and the fact that the landlord has got possession of two shops during the pendency of the case before the prescribed authority and the appellate authority and the business of arms and ammunition of Pradeep Kumar Gupta shifted to Meston Road and the business of tarpaulin having been closed is sufficient to demonstrate that the orders impugned in the present writ petition suffer from manifest error of law.
8. In view of what has been stated above this writ petition deserves to be allowed. The orders dated 16th February, 2000 and 28th May, 2001 are quashed and the matter will go back to the prescribed authority to decide afresh keeping in view the law laid down by the Apex Court and the directions given by this Court. Since the matter is fairly old the prescribed authority is directed to decide the same within a period of three months from the date of presentation of certified copy of this order on the basis of material already on the record. The writ petition is allowed.