S. D. Agarwala, J. - (1.) THESE are two petitions directed against the judgment of the III Additional District & Sessions Judge, Mathura dated 10th November, 1980. Briefly the facts giving rise to the present petitions are as follows.
(2.) THE property in dispute is a shop situate in Mathura. Laxmi Chand is the landlord of the said shop. Originally one Baboo Lal was the tenant but now his heirs Krishna Behari and Sri Narain are the tenants of the property. THE landlord filed an application for release on the ground that his son had passed M. B. B. S. examination and besides doing physician work he also wanted to establish a pathological clinic with X-ray machine plant. This application was contested by the tenant. Initially the Prescribed Authority allowed the application and directed release of the premises in favour of the landlord. Against the said judgment an appeal was filed by the tenant. THE appellate court did not grant the stay order in favour of the tenant and consequently the possession of the property in dispute was handed over to the landlord during the pendency of the appeal in the court below. THE appellate court also dismissed the appeal by an order dated 27th January, 1977. THE order dated 27ih January, 1977 was challenged by the tenant in writ petition No. 243 of 1977. This petition came up for hearing before U. C. Srivastava, J. on 20th March, 1978. U. C. Srivastava, J. allowed the petition, set aside the order dated 27th January, 1977 and remanded the case back to the District Judge to be decided in accordance with law and in the light of the observations made in the judgment. After remand the III Additional District & Sessions Judge, Mathura by an order dated 10th November, 1980 allowed the appeal in part. THE room behind the shop was released in favour of the landlord while the shop on the main road was permitted to remain with the tenant. Aggrieved by this decision the landlord filed writ petition No. 10206 of 1980, while the tenant filed writ petition No. 10599 of 1980. Since both the petitions challenge the same order and common questions of fact and law arise, both the petitions were argued together. Learned counsel for the landlord has urged that the finding recorded in regard to the bonafide need is vitiated in law as the appellate court has taken into consideration the accommodation which is not actually vacant. Learned counsel for the tenant is also aggrieved by the order passed by the appellate authority and has urged that inspite of specific order passed by this Court on 20th March, 1978, the appellate court has not considered the circumstances which would establish that greater hardship would be caused to the tenants, in case the release application has been allowed. In my opinion the submission made by the learned counsel for the petitioner in both the cases are well founded.
(3.) IN so far as the submission made on behalf of the landlord is concerned, it has come in evidence that Ram Kumar is the brother of Laxmi Chand and he is a licencee of Laxmi Chand. It is, therefore, clear that Ram Kumar is actually occupying the property. The appellate authority while considering the bona fide need of the landlord has observed as follows :- "If these two rooms in possession of the said Ram Kumar were fit enough for his residence for quite of long time, it is not conceivable why the same should not be fit enough for a dispensary or a clinic visited by patients only casually and that too for a short while. It may also be noted that it is always desired that X-ray plants are kept in dark so that there may not be any trouble in screening and other works." The bonafide need of a landlord cannot possibly be considered on the basis of an accommodation which is already occupied by another person, may be that the said person is a licencee, an unauthorised occupant or a tenant In case the accommodation is actually vacant then only the landlord's need could be disposed of on the basis of the said accommodation, but since the said accommodation is not actually available, the landlord's need cannot be disposed of on the basis of an imaginary vacancy. Consideration of the room occupied by Ram Kumar would have been relevant in case for some reason Ram Kumar had vacated the premises. Since admittedly Ram Kumar is residing in the rooms much before the moving of the application for release, in my opinion, the court below acted illegally and with material irregularity in the exercise of its jurisdiction in considering the bona fide need of the landlord on the basis of an accommodation not actually vacant. This principle would, however, not apply to a case where a licencee, unauthorised occupant or tenant has been inducted by the landlord with a mala fide object of establishing bona fide need.;