S.U. Khan, J. - (1.) LATE Sri Niwas Singhal, who was landlord of the shop in dispute, filed release application against tenant -respondent No. 2 Dr. Rajesh Kumar Arora, 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. 33 of 1993. In the release application it was stated that son of the landlord had died and he intended to establish the business of selling Saris and ready -made garments from the shop in dispute along with his widowed daughter -in -law. Tenant is running a Pathological Lab in the shop in dispute. During pendency of proceedings Sri Niwas Singhal died and was survived by his widow Smt. Shakuntala Devi Singhal, the petitioner. Release application was allowed by Prescribed Authority/Judge, Small Causes Court, Bareilly. Thereafter, Appellate Court remanded the matter. After remand release application was again allowed through judgment and order dated 18.2.1997. Against the said judgment and order tenant -respondent No. 2 filed R.C. Appeal No. 28 of 1997. IVth A.D.J., Bareilly allowed the appeal through judgment and order dated 29.9.1997 and dismissed the release application, hence this writ petition by the landlady.
(2.) THE Appellate Court allowed the appeal mainly on the ground that during pendency of proceedings two or three shops belonging to the landlady had been vacated by their tenants and instead of utilizing the same, landlady again let out those shops. It was also found that landlady constructed three new shops and let out those shops to other tenants. As far as newly constructed shops are concerned, they are very small in area having dimension of 4 feet x 4 feet. In respect of two or three shops vacated by old tenants and let out to new tenants, the case of the landlady was that they were quite small in area having frontage of only 7 feet or 7.5 feet, hence they were not suitable for the proposed business of readymade garments. Shop in dispute has got frontage of 11 feet and towards north -western corner, a small space of 3 feet 6 inches is also included in the said shop. Rejoinder affidavit was filed by landlady before the Prescribed Authority, copy of which is Annexure '6' to the writ petition. In para 26 of the said affidavit it was mentioned that map of total shops of the landlady including shop in dispute was being annexed as Annexure -1. Along with Annexure 6 to the writ petition, which is copy of the said rejoinder -affidavit, map was not annexed, hence on 14.2.2006 learned Counsel for the petitioner was directed to file the said map. On 24.2.2006 the said map was filed along with supplementary affidavit. In the said map dimension of all the shops are mentioned. The frontage of two adjoining shops is shown to be 7 feet and of the other two as 7 feet 6 inches. The correctness of the said map was not denied before the Courts below. However, Prescribed Authority had issued Commission to Court Amin, who submitted his report along with map, which is Annexure C.A.I. to the counter -affidavit. Neither in the report nor in the map Amin gave dimension of the shops. However, in the map the area of the shops 1 to 6 was shown to be almost equal. Lower Appellate Court solely placing reliance upon the map prepared by the Amin held that area of all the shops was equal hence the fact that some of the adjacent shops were vacated during pendency of the proceedings and let out to other tenants disproved the need of the landlady. Lower Appellate Court clearly committed an error of law. In the map of the Amin no dimension was given. Even during arguments learned Counsel for the tenant -respondent could not deny the correctness of the map filed along with rejoinder affidavit of the landlady before Prescribed Authority (copy of the said map was filed along with supplementary -affidavit on 24.2.1986). The only thing which the learned Counsel for the respondent -tenant has argued is that in the map filed by the landlady dimensions of the depth of the shops was not given. In the said map as well as in the map filed by Amin, the depth of each and every shop is exactly equal. It is shown in the map of the landlady and admitted to the parties that shop No. 1 is very small having frontage of 6 feet and its depth is also less than the depth of other shops and the portion at the back of the shop No. 1 is part and parcel of shop No. 2, which is shop in dispute. In the Amin's report shop No. 1 was shown to be almost equivalent to shop No. 2 and having similar depth.
(3.) LANDLORD cannot be compelled to use less suitable shop and availability of such a shop is no ground to reject release application vide C. Prasad v. U.K. Verma : AIR 2002 SC 108. The choice of accommodation is to be left upon the landlord vide Sarla Ahuja v. United Insurance Company : AIR 1999 SC 100 and S.N. Kapoor v. B.L. Khatri : 2002 (46) ALR 209 (SC). It has been held in these authorities that it is not for the tenant to dictate to the landlord the alternative means to satisfy his need and leave the tenant untouched. Landlord was fully justified in refusing to use small shops which became available to her during pendency of release proceedings.;