U.C.Srivastava, J. - (1.) The writ petition under Article 226 of the Constitution of India is directed against the appellate order passed by II Addl District Judge, Bulandshahar. allowing the landlord's application under section 21(1)(a) of U.P. Act No. XIII of 1972 (hereinafter referred to as 'the Act') in appeal and thereby reversing the order passed by the Prescribed Authority dismissing the application for the release of the accommodation in dispute filed by the landlord opposite party No. 3 against the petitioner tenant.
(2.) Opposite party No. 3 Madan Chandra Jain filed an application under Section 21(l)(a) of the Act against the petitioner who is running Halwai business for the last 50 years on the ground that one of his sons namely Perm Chand has not been able to establish any business and that the landlord wants the premises in dispute for establishing the business of Prem Chand who would start a general merchandise business in the same. The petitioner opposed the said application alleging that the alleged son of the landlord does not require the shop in dispute and as he has not acceded to the arbitrary demand for enhancement of rent of the shop in dispute and also was not willing to pay the amount of Rs. 30,000/- as its purchase price, proceedings have been started by the landlord against him. It was further pleaded by the petitioner that said Prem Chand was in fact carrying on a business of running a flour mill Kutti machine, Ginning Machine and manufacturing of ice-cream that is business of his father who was no longer looking after the same besides himself running of a Soda water factory and so there was no question of starting a separate business by him. Before the Prescribed Authority affidavits on behalf of the parties were filed and the Prescribed Authority came to the con elusion that the needs of the landlord were not more genuine than that of the tenant as the business was already being carried out by Prem Chand and by landlord and he had also started a separate business. In the view of Prescribed Authority if the premises were released in favour of the landlord the tenant petitioner will suffer irreparable loss. Against the said order opposite party No. 3 the landlord filed an appeal which came up for hearing before II Addl. District Judge, who was of the view that the Prescribed Authority did not record any categorical finding on the paint of bona fide requirement of the landlord and members of his family and also did not record any categorical finding on the point of comparative hardships. The appellate court enteral into the evidence on record. While entering into the evidence on record the appellate court also went astray and even introduced the elements on conjectures and imagination and findings on the questions which were not relevant for the purposes of the case and for which the parties were also not called upon to prove, were recorded. The appellate court observed that because the landlord who was getting money from his son who was in service, as such, his business was not flourishing. He also went to the extent of observing that the other sons of the landlord also were members of the joint family of the landlord. Even though the appellate court made certain irrelevant observations, but the same does not affect the merit of the case. The petitioner himself is owner of a shop and the other shop is owned by his son Mohan Lal which was in possession of a tenant. The shop owned by the petitioner is in the tenancy of Shambhu Dayal, and an application under Section 21 was moved by the petitioner after losing the case before the courts below regarding the shop in dispute for its release and the writ petition arising out of the same has also been tagged with this writ petition, but the same is being disposed of by a separate judgment. The appellate court was of the view that as the petitioner owns a shop which was let out to a tenant Shambhu Dayal and in case he is evicted he will not suffer irreparable loss and he can manage to get that shop for carrying on business. So far as landlord's needs are concerned, the appellate court believed the affidavit filed on behalf of the landlord that in fact the business which was in the name of the landlord was carried out by him and not by his son and the son was still unemployed and was not carrying on business and the shop was enquired for carrying on a general merchants business in the name of his son Prem Chand. While recording finding, the appellate court did not enter into the relevant rules nor took into consideration the same. The relevant rules viz. rule 16 of the U.P. Urban Buildings (Regulation of Letting, Rent & Eviction) Rules, 1977 which lay down guide lies for release on personal requirements. The appellate court took into consideration Rule 16(2)(a) that is the period since when a tenant was carrying his business ; Rule 16(b) pertains where a residential building was let out at the time when the sons of the landlord were minors and subsequently one on more of them has married, the additional requirement of accommodation for the landlord's sons. The finding which has been recorded leaving aside certain irrelevant matters, is a finding of fact and no such ground has been made out by the petitioner which may entail any interference in the said finding by this court. The appellate court took into consideration the availability of the accommodation by the tenant and had also awarded a compensation of Rs. 300/- to the outgoing tenant though it could have even awarded more than that. The appellate court also granted one year's time to the tenant for vacating the premises in dispute. It took into consideration the respective need of the parties and availability of the shops to both landlord and the tenant and comparative hardship and it is only thereafter that it arrived at a particular conclusion. The petitioner thus having not made out any ground for interference, the writ petition deserves to be dismissed but in view of the time which may be taken in getting or shifting to some accommodation the prayer made by the learned counsel for grant of time appears to be reasonable.
(3.) The writ petition is dismissed. Looking into the requirements of parties and the arrangement which they require for shifting, time up to October, 1982 for vacating the shop in dispute is granted to the petitioner time is being given to the petitioner on the undertaking that the tenant will and over the vacant possession of the shop to the landlord by that date. In case the vacant possession of the shop in question is not handed over to landlord by 31st October, 1982, the order for eviction shall become executable without any objection. In the circumstances of the case the parties shall bear their own costs. Petition dismissed.;