- (1.) TARUN Agarwala, J. This writ petition is directed against the order and judgment dated 31-3-1986 passed by the appellate Court whereby the landlord's appeal was allowed and the premises in question was released in favour of the landlord.
(2.) THE brief facts are that the landlord filed an application under Section 21 (1) (a) of UP. Act No. 13 of 1972 in the capacity of a Karta of a joint Hindu undivided family for the release of the accommodation in question showing the need for his two brothers, namely, Sudhir Kumar and Sushil Kumar for their business purposes. It was contended that the shop in question was let out by the landlord's father to the petitioner's father with the understanding that the tenancy of the original tenant would come to an end upon his death. THE original tenant died and his heirs are using the shop though they should have vacated the premises. It was also alleged that pursuant to a family partition, the shop in question came into the share of the landlord. THE landlord further alleged that he alongwith his two brothers are also co-owners of the shop in question. It was alleged that the shop was required in order to set up the business of Sudhir Kumar and Sushil Kumar who have completed their studies and are also unemployed. It was also alleged that they wanted to start their own independent business. It was contended that the landlord had no other accommodation except the shop in question and, therefore, the shop in question was bonafidely required. THE landlord further alleged that he had constructed a marketing complex at Station Road and had offered a shop 10' x 10' to the tenant plus two years rent as compensation which the tenant had refused. THE landlord contended that the said offer still stood and that the tenant could easily shift into this alternate accommodation. Lastly, the landlord contended that the rear portion of the tenanted shop in question had fallen down and, therefore, the shop required reconstruction. THE landlord submitted that necessary permission from the municipal authorities had been granted for demolition and for reconstruction and that the landlord had the requisite funds for reconstruction. The tenant contested the application and submitted that the landlord had several buildings in the city which were also vacant and that any one of these buildings could be utilized to set up the business of the two brothers. It was also contended that another shop was recently released which could be utilized by the brothers. It was submitted that the release application filed by the landlord was wholly mala fide and was neither bona fide nor genuine. The tenant contended that the brothers of the landlord are involved in the family business and do not require the shop nor are interested in setting up an independent business. The tenant further denied that any family partition took place in the landlord's family, but admitted that the rent was being paid by the tenants to him alone. The tenant further contended that the building was not in a dilapidated position nor the rear portion of the 1st floor of the premises in question had fallen down. The petitioners further denied that their father had given any assurance of his tenancy coming to an end upon his death. The tenant further denied that any shop was offered by the landlord on Station Road and submitted that the shop constructed on Station Road could be used by the brothers of the landlord to set up their business. The petitioners submitted that the release application was not bona fide and should be rejected.
(3.) THE Prescribed Authority after considering the various points for determination, dismissed the application of the landlord. THE prescribed authority held that Sunil Kumar Taraiya was the landlord and was competent to file an application under Section 21 (1) (a) in his capacity as a Karta as well as a co- owner of the shop in question for the release of the shop in favour of his brothers. THE Prescribed Authority also held that the building in question was neither in a dilapidated condition nor the rear portion of the 1st floor had fallen down and that the premises in question was being used as a shop by the tenants/petitioners. THE prescribed authority, however, found that the landlord possessed other buildings which were vacant and which could be utilized to set up the business of the two brothers and, therefore, came to the conclusion that the application for the release of the premises in question was not bona fide. In view of this finding that the landlord possessed other buildings, the prescribed authority also held that comparative hardship was in favour of the petitioner and that the tenant would suffer more than the landlord. Accordingly, the prescribed authority rejected the release application. Aggrieved, the landlord filed an appeal which was allowed and the premises in question was released in favour of the landlord. The appellate Court held that the brothers are also co-owners and that the application was maintainable and that the Karta could file an application for the release of the premises in question. The appellate Court also found that the brothers have a need to do an independent business and that the brothers could not be forced to do the family business. The appellate Court found that even though the landlord had other buildings in question which were also vacant, the same could not be used for business purposes as these buildings were residential buildings. The appellate Court found that House No. 33, Mohalla Ravpura had sufficient accommodation but the same was not fit for business purpose, and was also not located in a market area. The appellate Court also found that the petitioner could easily do his business from the shop at Station Road, but the brothers of the landlord could not do their cloth business from this shop inasmuch as Katra bazar is the place where wholesale trading of cloth business is conducted. The appellate Court, therefore, found that the need of the landlord was genuine and bona fide and also came to the conclusion that the need of the landlord was greater than the need of the tenants and that the landlord would suffer greater hardship in the event the premises was not released. The appellate Court directed that the premises be released in favour of the landlord subject to the condition that the landlord pays compensation to the tenant equal to two years rent plus provide a shop on Station Road, where the tenant could shift his business.;