Satish Chandra (Dead) and others vs Somnath Anand and others

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

This is landlords'' writ petition arising out eviction/ release proceedings initiated by them against tenants respondents on the ground of bona fide need under Section 21 of U.P. Urban Buildings (Regulation of Letting, Rent & Eviction) Act, 1972 in the form of P.A. Case No.8 of 1996. Prescribed Authority, Najibabad, district Bijnore through judgment and order dated 30.04.1998 allowed the Release Application. Against the said judgment and order tenants respondents filed P.A. Appeal no.11 of 1998. Vth, A.D.J. Bijnor through judgment and order dated 24.03.1999 allowed the appeal, set aside the judgment and order of the Prescribed Authority and dismissed the Release Application of the landlords, hence, this writ petition by the landlord.

Three sons of the landlords were engaged in business. However, two sons i.e. Chandra Shekher and Ghanshyam were neither having any business nor were employed anywhere, hence shop in dispute was stated to be required to settle them in business.

As far as Chandra Shekher is concerned, during pendency of appeal copies of his income tax return were filed showing that he was drawing salary also. Chandra Shekher himself filed affidavit before lower appellate court dated 05.08.1998 (Annexure 25 to the writ petition). In para 2 of the said affidavit he admitted that in his income tax return for the year 199798, he had shown income from salary as Rs.32,000/. It was not explained that what service he was doing. It is correct that if during pendency of release application landlord or his son joins some temporary service it does not mean that his need has come to an end. Any person may switch over his profession. However, even nature of profession or service was not indicated by Satish Chandra. He did not state that he wanted to give up the service and start business. Accordingly, findings of lower appellate Court that there existed no need for Satish Chandra are approved.

However, as far as finding of Lower Appellate Court regarding absence of need of Ghanshyam is concerned, the same is utterly illegal. When Release Application was filed, he had passed B.Sc. During pendency of the proceedings he passed M.B.A. Lower Appellate Court held that he was not doing any business. However, Lower Appellate Court gave a very strange reason to reject his need. Ghanshyam had stated that he tried to obtain some job, however, he could not get any appropriate job, hence he wanted to do business. From this assertion Lower Appellate Court inferred that first preference of Ghanshyam was to do service, and second preference was to do business, hence, shop could not be released for his need and he should make more sincere efforts to get service. It was also observed by Lower Appellate Court that even though Ghanshyam made efforts to get job but sincere efforts were not made by him in that direction.

This approach of the lower appellate court, to use the mildest possible word, is ridiculous.

It was also observed that the other three brothers of Ghanshyam and Chandra Shekher were doing business and in the accommodation where they were doing business some portion was available to be utilized by Ghanshyam. However, neither it was brought on record nor found correct by lower appellate court that some independent separate shop in the accommodation in which the other three brothers were doing their business was available to be used by Ghanshyam. Supreme Court in 2003 (52) ALR 160 (SC) = 2003 (9) AIC 156 : AIR 2003 SC 780 "Sushila v. IInd Addl. District Judge, Banda" followed in Rishi Kumar Govil Vs. Maqsoodan and others, 2007 (67) ALR 774 (SC) = 2007 (53) AIC 30 : 2007 (4) SCC 465 has held that every adult member of landlords'' family and every landlord is entitled to have separate independent business.

Accordingly, I find that the finding of the lower appellate court that need for settling Ghanshyam in business was not bona fide is patently erroneous in law. The need to settle Ghanshyam in business was more than bona fide.

As far as comparative hardship is concerned prescribed authority on the basis of commissioner''s report found that tenant had several shops, out of which two bearing nos. 2 and 4 were vacant. The said finding was not reversed by the lower appellate court. However, lower appellate court held that tenant was carrying on the business of readymade garments from the shop in dispute and had earned good will. The tenant himself admitted that shop no.4 was in his occupation. However, he had stated that he was using that as a godown. It was also found by the prescribed authority that tenant was doing business at another place by the name of Anand bakery. Adjacent to the said bakery the aforesaid two shops were available to the tenant in vacant state out of which one shop was admitted by him to be vacant. Copy of Amin''s report is Annexure 3 to the writ petition. The Amin after inspecting the property owned by the tenant reported that bakery business at a very large scale was being run and several rooms were occupied by the said business and two shops were vacant i.e. shop nos.2 and 4.

In respect of the shop alleged to be available to the landlord in vacant state, no application for inspection was given by the tenant.

Accordingly, in my opinion, need for settling Ghanshyam in business was more than bonafide. No shops was proved to be available for the said purpose. Tenant has got a very big bakery business and has got two vacant shops available to him apart from the shops occupied by the bakery business. Accordingly, comparative hardship of the tenant in case of eviction will be almost nil. Moreover, tenant is doing business of selling readymade garments and bakery on a very good scale, he must be earning a lot of money from the said businesses. He can therefore easily either purchase or take on good rent an other shop. He did not make any efforts in that direction. By paying virtually no rent (as the rent is negligible) tenant must have saved lot of money which he would have otherwise been required to pay as adequate rent. It was therefore all the more necessary for the tenant to make sincere efforts to search alternative accommodation which he did not do.

Accordingly, writ petition is allowed impugned judgment and order passed by the lower appellate court is set aside and Judgment and order passed by the prescribed authorities is restored.

Tenantpetitioner is granted six months time to vacate provided that :

Within six months from today petitioner tenant files an undertaking before the Prescribed Authority to the effect that on or before the expiry of aforesaid period of six months he will willingly vacate and handover possession of the property in dispute to the landlordrespondents.

For this period of six months, which has been granted to the tenantpetitioner to vacate, he is required to pay Rs. 6,000/(at the rate of Rs. 1000/ per month) as rent/damages for use and occupation. This amount shall also be deposited within six months before the Prescribed Authority and shall immediately be paid to the landlordrespondents.

In case of default in compliance of any of these conditions tenantpetitioner shall be evicted through process of Court after one month. It is further directed that in case undertaking is not filed or Rs.6,000/ are not deposited within six months then tenantpetitioner shall be liable to pay damages at the rate of Rs. 2,000/ per month since after one month till the date of actual vacation.

Similarly, if after filing the aforesaid undertaking and depositing Rs.6,000/ the accommodation in dispute is not vacated on the expiry of six months then damages for use and occupation shall be payable at the rate of Rs. 2,000/ per month since after six months till actual vacation. It is needless to add that this direction is in addition to the right of the landlord to file contempt petition for violation of undertaking and execution application, under Section 23 of the Act.