Nandani Devi (Smt.) vs Ist Additional District Judge and Others

S.U. Khan, J.—Heard learned Counsel for the parties.

This is landlord''s writ petition arising out of eviction/release proceedings by him against tenants respondents on the ground of bona fide need u/s 21 of U.P. Act No. 13 of 1972.

Property in dispute is a shop. Release application was registered as P.A. Case No. 36 of 1978 on the file of prescribed authority/1st Additional Munsif, Varanasi, The landlady petitioner pleaded that she required the shop in dispute for establishing his sons in business. Prescribed authority by order dated 12.4.1982 allowed the release application, against which tenants respondents filed appeal u/s 22 of the Act being Rent Control Appeal No. 239 of 1982. 1st Additional District Judge, Varanasi through judgment and order dated 30.11.1983 allowed the appeal, hence, this writ petition by landlady.

Landlady had specifically stated that her sons intend to start the business of Swarnkari. The Appellate Court mainly allowed the appeal on the ground that Swarnkari business was family business of landlady''s husband hence it should be presumed that her sons Jugal Kishore and Mangesh Kumar might be intending to take the orders and manufacture the ornaments themselves. The Appellate Court also held that landlady did not show as to how many shops were owned by her husband. If the tenants come up with the case that landlord has got other alternative accommodation available then the burden to prove the same lies upon them. Appellate Court also observed that landlady did not state as to whether her sons were separate in business and living or not. Lower Appellate Court further held that "These young sons Jugal Kishore and Mangesh Kumar may continue to work with their father and assist their father in this sarrafa business". This view is quite contrary to the view expressed in this regard by Supreme Court in the following authorities:

Akhileshwar Kumar and Others Vs. Mustaqim and Others, .

Sushila v. IInd Additional District Judge, Banda and Ors. 2003 SCFBRC 109

The Supreme Court has held that every adult member of landlord''s family have got a right to start independent business and no landlord or any of his family members, can be compelled to participate in the family business.

Lower Appellate Court also took into consideration that landlady or her husband had purchased a plot and constructed a house thereupon. Residential accommodation cannot be taken into consideration to deny the need for commercial activity.

Regarding comparative hardship Revisional Court held that "his (tenants) wife owns and possess a residential house in the lane. Of course a room on ground floor can be separated for the floor mill, but it will carry a risk for the livelihood of Jawahar Lal and his family."

By virtue of above it is quite clear that tenants have got alternative accommodation, which is sufficient to decide comparative hardship against them. Tenants also did not show as to what efforts they made to search alternative accommodation after filing of the release application. This was also important factor for determining comparative hardship (vide Badrinarayan Chunilal Bhutada Vs. Govindram Ramgopal Mundada, ).

Accordingly, writ petition is allowed. Judgment and order passed by Lower Appellate Court dated 30.11.1983 is set aside and order passed by prescribed authority dated 12.4.1982 is restored.

Tenants respondents are granted six months time to vacate provided that within one month from today they file an undertaking before the prescribed authority to the effect that on or before 2.3.2005 they will willingly vacate and handover possession of the shop in dispute to the landlady.