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SANJAY KUMAR KATYAL versus SMT. KAMLESH GUPTA AND ANOTHER

High Court of Judicature at Allahabad

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Sanjay Kumar Katyal v. Smt. Kamlesh Gupta And Another - WRIT - A No. 8153 of 2007 [2007] RD-AH 2993 (22 February 2007)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No. 23

Civil Misc. Writ Petition No. 8153 of 2007

Sanjay Kumar Katyal.....................Petitioner

Vs.

Smt. Kamlesh Gupta and another............ Respondents

Hon. S.P. Mehrotra, J.

Pursuant to the order dated 14.2.2007, the case is listed today in the Cause List of Court No.7. By the order of the Hon'ble The Acting Chief Justice, the case has been transferred to this Court.

On mention made by Shri A.B. Saran, learned Senior Counsel appearing for the petitioner, the case has been taken-up today.

It appears that an Application under Section 21(1)(a) of the U.P. Act No. XIII of 1972 (in short "the Act") was filed by the respondent no.1 against the petitioner in regard to a shop, the details whereof are given in the Release Application, copy whereof has been filed as Annexure-1 to the Writ Petition. The said shop has hereinafter been referred to as "the disputed shop".

The said Release Application was registered as P.A. Case No. 41 of 2006.

It further appears that the following three Applications were filed on behalf of the petitioner in the said P.A. Case No. 41 of 2006:

1. Application No. 27 C, interalia, praying for permission to cross-examine the respondent no.1. Copy of the said Application has been filed as part of Annexure-2 to the Writ Petition, and appears at page 13 of the Paper Book of the Writ Petition.

2. Application No. 28 C, inter-alia, praying for appointment of an Advocate Commissioner for inspecting the spot. Copy of the said Application has been filed as part of Annexure-2 to the Writ Petition, and appears at page 25 of the Paper Book of the Writ Petition.

An affidavit (Paper No. 29C) has also been filed in support of the said Application. Copy of the said Application has been filed as part of Annexure-2 to the Writ Petition, and appears at page 16 of the Paper Book of the Writ Petition.

3. Application No. 30C, inter-alia, praying for permission to bring on record additional affidavit. Copy of the said Application has been filed as part of Annexure-2 to the Writ Petition, and appears at page 18 of the Paper Book of the Writ Petition.

By the order dated 7.2.2007, the Prescribed Authority has rejected the aforementioned three Applications, filed on behalf of the petitioner.

Thereafter, the present Writ Petition under Article 226 of the Constitution of India has been filed.

I have heard Shri A.B. Saran, learned Senior Counsel appearing for the petitioner and Smt. Rama Goel, learned counsel for the respondent no.1, and perused the record.

Shri A.B. Saran, learned Senior Counsel appearing for the petitioner has produced before the Court a certified copy of the ordersheet of the said P.A. Case No. 41 of 2006, pursuant to the directions given in the order dated 14.2.2007 passed by this Court. Let the said certified copy be placed on record.

As regards Application No. 27 C, filed on behalf of the petitioner, inter-alia, praying for permission to cross-examine the respondent no.1, it is submitted by Shri A.B. Saran, learned Senior Counsel appearing for the petitioner that cross-examination of the respondent no.1 was necessary in view of the averments made by her in the affidavits filed by her in the said P.A. Case No. 41 of 2006.

In reply, Smt. Rama Goel, learned counsel for the respondent no.1 submits that the proceedings under Section 21 of the Act are normally decided on the basis of the affidavits filed by the parties in support of their respective cases, and cross-examination of any party should not be permitted as a matter of course.

Having considered the submissions made by the learned counsel for the parties, I am of the opinion that the submissions made by Smt. Rama Goel, learned counsel for the  respondent no.1, are correct. The Prescribed Authority has given valid and cogent reasons for rejecting the said Application No. 27 C, filed on behalf of the petitioner, and I do not find any good ground for interfering with the conclusions of the Prescribed Authority in this regard.

As regards Application No. 30 C, filed on behalf of the petitioner, inter-alia, praying for being permitted to bring on record the additional affidavit, it is submitted by Shri A.B. Saran, learned Senior Counsel appearing for the petitioner that the additional affidavit ought to have been permitted to be filed on record  so that the facts relevant to the case could be brought on record.

In reply, Smt. Rama Goel, learned counsel for the respondent no. 1 submits that no reasons have been given in the said Application No. 30 C as to what facts were to be brought on record by filing the additional affidavit and as to how the said facts were relevant in regard to the controversy involved in the present case.

Having considered the submissions made by the learned counsel for the parties, I am of the opinion that the submissions made by Smt. Rama Goel, learned counsel for the respondent no.1, are correct. The additional affidavit was being sought to be brought on record after the closure of evidence of the parties. No details were given in the said Application No. 30 C as to what facts were to be brought on record by filing the additional affidavit, as to how the said facts were relevant to the controversy involved in the present case, and as to why the said facts were not earlier brought on record.

In the circumstances, I am of the view that the Prescribed Authority did not commit any illegality in rejecting the said Application No. 30 C, filed on behalf of the petitioner.

Coming now to the Application No. 28C, filed on behalf of the petitioner, inter-alia, praying for appointment of Advocate Commissioner to inspect the spot, it is submitted by Shri A.B. Saran, learned Senior Counsel appearing for the petitioner that inspection of the spot, particularly inspection of Shop No. 31 adjacent to the disputed shop, was necessary in order to show the nature and extent etc. of the alternative accommodation available to the respondent no.1 for satisfying her alleged bonafide need.

Smt. Rama Goel, learned counsel for the respondent no.1 submits that in the said shop no. 31, the husband of the respondent no.1 is doing business, and the said shop is not relevant for deciding the controversy in regard to the disputed shop, release whereof is being sought on the ground of bonafide need for starting business by the daughter of the respondent no.1.

Having considered the submissions made by the learned counsel for the parties, and having regard to the facts and circumstances of the case, and keeping in view the points of dispute between the parties in the present case, I am of the opinion that in order to decide the controversy involved in the present case, it was necessary that an Advocate Commissioner should have been appointed to inspect the spot, as prayed for in the said Application No. 28 C. The Prescribed Authority, in my view, was in error in rejecting the said Application No. 28 C merely on the grounds mentioned in the impugned order.

In the circumstances, while the impugned order dated 7.2.2007 passed by the Prescribed Authority is upheld in regard to the rejection of Application No. 27 C and Application No. 30 C, the said order dated 7.2.2007 is quashed in regard to the rejection of the said Application No. 28 C, filed on behalf of the petitioner.

It is directed that the Prescribed Authority will appoint an Advocate Commissioner to inspect the spot by passing suitable orders in this regard on the said Application No. 28 C by 12.3.2007. The Advocate Commissioner will be directed to submit his Report after making the spot inspection by 30.3.2007. After giving opportunity to the parties to file objections in regard to the Commissioner's Report, the Prescribed Authority will proceed to pass suitable orders in regard to the said Report by 20.4.2007. The Prescribed Authority will thereafter proceed to decide the said P.A. Case No. 41 of 2006 expeditiously, preferably within a further period of two months thereafter.

In view of the above, the Writ Petition is allowed in part with the directions given above.

It is made clear that this Court has not considered the merits of the said P.A. Case No. 41 of 2006 as it is for the Prescribed Authority to consider the same and pass suitable orders on merits of the said case.

Copy of this order will be issued to the learned counsel for the parties on payment of usual charges by 23.2.2007.

Dt. 21.2.2007

safi


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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