- (1.) S. U. Khan, J. Heard learned Counsel for the parties.
(2.) THIS is landlords' writ petition arising out of eviction/release proceedings initiated by them against tenant-respondents 1 to 5 on the ground of bona fide need under Section 21 of U. P. Act No. 13 of 1972 in the form of P. A. Case No. 85 of 1985. Property in dispute was a big shop. In the release application need was also set up and it was also stated that shop in dispute was in dilapidated condition. In the release application it was clearly stated that it was being filed under Sections 21 (1) (a) and 21 (1) (b) of the Act. Prescribed Authority Jhansi found the building to be in dilapidated condition. Need of the landlord was also found to be bona fide. Ultimately, Prescribed Authority through judgment and order dated 21- 1-1987 allowed the release application and directed that within six months from getting possession from the tenant landlord should construct two shops after demolishing the existing shop and one shop should be given by him to the tenant on rent. It was also directed that on the first floor of the newly constructed shops landlord would be entitled to construct residential portion. It was also provided that if within six months new shops were not constructed then tenant would be authorized to construct shop on half of the portion and the cost of construction would be adjusted towards rent. Against the said judgment and order both the parties filed appeals being Rent Control Appeal Nos. 6 of 1987 and 7 of 1987. A. D. J. /special Judge (E. C. Act), Jhansi through judgment and order dated 28-1-1988 dismissed the appeal of the tenant. Appeal of the landlord was allowed in part. It was ordered that release application stood allowed under Section 21 (1) (a) of the Act. The ultimate order of the prescribed authority was slightly modified and it was directed that the two shops as directed by the Prescribed Authority should be constructed after leaving three feet space for staircase. In this manner Appellate Court affirmed the ultimate order passed by the Prescribed Authority with slight modification. It is admitted to the parties that thereafter in execution proceedings under Section 23 of the Act landlord got possession of the shop which was in the tenancy occupation of the tenant- respondent on 2-4-1988. This writ petition was filed by the landlords in May 1988. Unfortunately in the writ petition, which was filed in May 1988, it was not disclosed that in April 1988 possession had been taken by the landlords. In the writ petition on 11-5-1988 the following stay order was passed: "meanwhile, the operation of the orders passed by respondent Nos. 6 and 7 so far as it relates to handover possession of the newly constructed shop to respondent Nos. 1 to 5 shall remain stayed till 31st August, 1988. " Thereafter on 10-8-1988 another stay order was passed to the following effect: "until further orders the operation of the orders dated 21st January, 1987 and 28th January, 1988 shall remain stayed. "
(3.) IT is undisputed that thereafter two new shops were constructed on the ground floor by the petitioner-landlord and residential portion was also constructed on the first and second floor. Alongwith rejoinder affidavit map of the newly constructed shops has been filed. According to paragraphs 4 to 7 of rejoinder affidavit, due to paucity of accommodation landlords are some time sleeping in the shop and in the two newly constructed shops the two sons of the landlords are doing business. IT has also been stated that meanwhile some shops have been constructed by the tenants out of which some have been let out to other tenants. In my opinion as tenants are no more in possession for about 18 years, hence no useful purpose will be served by directing delivery of possession of one of the newly constructed shops to them. Bona fide need of the landlord was found by both the Courts below and that finding has not been challenged by the tenant. The purpose of directing delivery of possession of one of the newly constructed shops was to take care of the hardship of the tenant. Concept of hardship is to be considered in proximity with the date of dispossession. In its very nature hardship in most of the time temporary in nature. Tenant must have arranged for other shop meanwhile (i. e. during last 18 years ). In my opinion, therefore, it is a fit case for award of damages in order to adjust the equities.;