Rakesh Tiwari, J. - (1.) HEARD Sri Pramod Kumar Jain, senior counsel assistant by Sri Saurabh Jain, counsel for tenant petitioners, Sri M.K. Gupta appearing for the landlord respondent and perused the record.
(2.) THIS petition challenges the validity and correctness of the judment and order dated 25.10.2008 passed by the Prescribed Authority/Civil Judge (S.D.), Pilibhit in P.A. case No. 3 of 1999 as well as judgment and order dated 13.1.2011 passed by the appellate authority/Additional District Judge, Pilibhit dismissing P.A. Appeal No. 26 of 2008, appended as annexure No. 1 and 2 to the writ petition*. The impugned orders have been challenged on the ground that while dismissing the appeal, the appellate Court has not taken notice of the judgment in respect of another shop under the tenancy of Sri Satish, against whom similar another release application was filed on same grounds. It is stated that in the release application filed against Sri Satish, the Court had recorded a finding that landlord respondent is aged about 70 years and it is not possible for him to carry on trade, as such his *2. "THIS petition challenges the validity and correctness of the judment and order dated 25.10.2008 passed by the Prescribed Authority/Civil Judge (S.D.), Pilibhit in P.A. case No. 3 of 1999 as well as judgment and order dated 13.1.2011 passed by the appellate authority/ Additional District Judge, Pilibhit dismissing P.A. Appeal No. 26 of 2008, appended asAnnexure Nos. 1 and 2 to the writ petition." "It is submitted by the counsel for landlord respondent that earlier the shop in question was under tenancy of father-in-law of petitioner No. 7-Ram Pratap Jaiswal and upon his death, the tenancy devolved upon his daughter Sankari Devi (since deceased) wife of Ram Pratap Jaiswal apart from other heirs. After death of Smt. Sankari Devi, the tenancy has devolved upon her husband petitioner No. 7-Ram Pratap Jaiswal and petitioner Nos. 8 and 9, that in subsequent development during pendency of the proceedings, Ram Pratap Jaiswal has acquired a shop of his own, hence he has plead and established his bonafide need for the shop in question."] need was not bona fide. According to the counsel for petitioner, this aspect of the matter has been ignored by both the Courts below. It is submitted that not only this, the Courts below have also not looked into this aspect that the landlord respondent had four shops of same size i.e. 9" X 18" and after purchase of the property, first shop was got vacated by the landlord from Aslam, tenant in that case, and thus the element of bona fide need stood satisfied on vacation of shop by Aslam. It is also submitted that shop under tenancy of the petitioner is not adjacent to the shop which was under tenancy of Aslam and there is another shop measuring 9" X 18" feet in between the two shops i.e. the shop under tenancy of the petitioner and the shop vacated by Aslam. Contention of the counsel for petitioner is that if the petitioner's shop had been adjacent to the shop under tenancy of Aslam, then it could be said that landlord respondent wants to enhance the size of the shop, but that was neither the case nor the position at the spot and in fact the respondent landlord is not occupying the property after allotment i.e. the shop which was under tenancy of Aslam in view of statement made by him in the proceedings under Section 21(1 )(a) of U.P. Act No. 13 of 1972, and in view thereof, release application filed against the petitioner was not maintainable. Per contra, Sri M.K. Gupta appearing for the landlord respondent, has argued that it was never case of the landlord that he required two additional shops and would enlarge the area of the shop for establishing his business by demolition of partition wall between the two shops. According to him, case of the landlord was that he required two shops for the business i.e. for establishing Aata chakki, Dhan kutti machine and Expeller which cannot be done in one shop measuring 9" X18 feet as some additional space would be required for storage of bye products and working space, hence two shops were required for the purpose.
(3.) IT is vehemently argued by the counsel for respondent landlord that age can never be a factor to repel contention of bona fide need as the business is to be done through servants and only investment is to be made by the landlord. In this regard, he has relied upon decision of this Court rendered in Jai Raj Agarwal v. Bhola Nath Kappor and others, 2005(3) ARC 417. In that case also, the landlord after retirement wanted to do cloth business and also to settle his adopted son in business. In these circumstances, it was held that even at the age of 76 years, one can supervise the business and the need for the landlord for starting business, was bona fide and has to be considered.;