- (1.) A. B. Srivastava, J. This is tenants petition under Article 226 of the Constitution of India whereby they have sought writ of certiorari quashing the order dated 11-2-1991 of the prescribed authority allowing the landlords application for release of accommodation in the tenancy of the petitioners and the order dated 5-12- 1992 of the Additional District Judge, Varanasi confirming the same in appeal.
(2.) THE respondent No. 3 Chunni Lal, (landlord) filed the release application under Section 21 (1) (a) of Act 13 of 1972, (hereinafter referred as the Act) against late Prahlad Das, the father of petitioners Nos. 1 and 2 and grandfather of petitioner No. 3 the respondent Nos. 4 to 6 daughters and Smt. Bahuwa the widow of Thakur Das the elder brother of Prahlad Das, with allegations that the shop in question situate on the ground floor of house No. 20/9 Thatheri Bazar, Varanasi was in the tenancy of Thakur Das, who died in December 1980 leaving his widow and three daughters. Initially Thakur Das and Prahlad Das had a joint business of utensils in this shop, but due to differences between them, the said business ceased in 1972 and Prahlad Das started his own business in the said shop which also discontinued near about the year 1981 and his sons are engaged in the profession of broker in Sari-market. THE shop in question it is alleged, is lying vacant and locked. THE widow and daughters of Thakur Das had at no stage any concern with the shop in question, and have been impleaded formally to avoid any complication. THE landlord has a large family to support, his residential house is a small one situate in a narrow lane. He is a sweetmeat seller by profession and is running a small sweetmeat business in a tenanted house in mohalla Siddhesh-wari, the landlord of which is pressing him to vacate. His son named Pramod is having a sweetmeat shop in 23 x 6 feet shop in house No. CK 20/9 Thatheri Bazar, the width being narrow, there is no proper place for keeping the counter, and for the customers to sit and eat, the furnace and cooking is on the third floor, also causing inconvenience, two other sons of the landlord Atma Ram and Rajesh Kumar are unemployed, the shop in question being adjacent to the shop of Pramod Kumar, on getting it the landlord will convert the two shops into one by removing the partition wall and all his three sons could well be accommodated gainfully in the said business. Consequently, the need of the landlord was alleged to be bonafide and pressing. The release application was contested by the petitioners who pleaded that originally Prahlad Das had taken a three Dar shop in house No. CK 20/9 Thatheri Bazar, Varanasi from Smt. Bitto, the mother of respondent No. 3 Chunni Lal. After her death, Chunni Lal and his brother Ganesh Prasad became co- landlords. Later Prahlad Das vacated one dar of the shop in favour of Ganesh Prasad and the tenancy remained in respect of remaining two Dars. The business wherein was being run by Prahlad Das and Thakur Das. Later due to old age, Thakur Das withdrew from the said business, and it was agreed that Prahlad Das will be the sole owner of the said business and shall pay to Thakur Das, and after him to his heirs Rs. 50 per month. After death of Thakur Das, his widow and daughters also had no concern of the tenancy and Prahlad became the sole tenant and after him the petitioners inherited the tenancy. In the course of time, utensil business discontinued, and the petitioners are running the business of Banarasi Saries in the said shop. It is wrong to say that they have kept it locked. The respondent landlord does not bona fide require the shop in question as his sons are comfortably engaged in the business of sweetmeat in the shop already in their possession. As the customers consider it uncivilized to eat sweetmeat in the shop, no place for them inside the shops is required, rather, the customers after purchasing sweetmeats from the shops in Thatheri Gali consume it elsewhere. The application for release have been filed with ulterior motives and the petitioners will suffer great hardship if they are made to vacate the same. The learned Prescribed Authority allowed the prayer of the landlord for release with the finding that the landlord bonafide requires the shop in question for occupation by himself, to provide suitable space to extend the sweetmeat shop of his eldest son Pramod Kumar, and to engage his two other grown up sons Atma Ram and Rajesh Kumar, the petitioner-tenants are not carrying on business of Banarsi Saries in the shop in question, and that greater hardship will be caused to the respondent landlord if the release is refused than to the petitioners if the same is allowed.
(3.) ON appeal being preferred by the petitioners, the learned Additional District Judge held that although initially both Thakur Das and Prahlad Das were carrying on joint business in the shop in question, subsequently, Thakur Das withdrew from the business and the tenancy and Prahlad Das continued to carry on the business in the premises in question as its tenant, which status was also accepted by the landlord, the release application was consequently maintainable. He also agreed with the conclusions of the learned Prescribed Authority on the question of bonafide need of the landlord, and also on the point of comparative hardship. He, accordingly, dismissed the appeal. In this petition affidavits have been exchanged between the parties, hence in accordance with Rules of the Court it is being finally disposed of at admission stage.;