S.U.Khan, J. - (1.) THIS is landlords' writ petition arising out of eviction/release proceedings initiated by them against tenants respondents 2 to 6 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. 32 of 1989. Property in dispute is a shop, rent of which is Rs. 375/ - per month. Respondent No. 2 M/s. Kesho Ram Kailash Chand through Kailash Chand Goel its partner and respondents No. 3 to 6 the other partners of the said firms are tenants.
(2.) IN the release application, it was stated that shop in dispute was required for Daya Krishna Sharma son of Smt. Shail Bala Sharma. It was also stated that landlord petitioner No. 1 also required a shop however in respect thereof release application had been filed against Bodhraj tenant of another shop. When this writ petition was filed in the year 1995 the matter against the other tenant was sub -judice in a writ petition and dispossession of the said tenant was stayed. It was pleaded by the landlords and admitted by the tenants that they (the tenants) had got allotted two shops (94 -B and 120 -B) in the new Mandi meant for the same business, which was carried out from the shop in dispute. From the shop in dispute tenants respondents were carrying on the business of Gur and Khandsari. A new Mandi for the said business was established at Kukra Mandi Sthal. Tenants pleaded that after shifting their main business of Gur to the shops allotted to them in Kukra Mandi, they had started the business of Sugar from the shop in dispute. It was also pleaded by the tenants that in front of the shop in dispute there was another shop which was demolished by the landlord hence their need was not bona fide. The prescribed authority in respect of the said shop held that it was constructed unauthorizedly on the phar in front of the shop of dispute hence it was rightly demolished. Portion in front of the shop belongs to the local authority and that can be used only for ingress and outgress and no construction can be made thereupon. Prescribed authority/Civil Judge, II Muzaffarnagar found the need of the landlords to be bona fide and also decided the question of comparative hardship in favour of the landlords. Consequently release application was allowed by the prescribed authority on 18.2.1993. Against the said judgment and order tenants filed R.C. Appeal No. 14 of 1993. IV Additional District Judge, Muzaffarnagar through judgment and order dated 7.10.1994, allowed the appeal, set aside the judgment and order of the prescribed authority and rejected the release application hence mis writ petition by the landlords. Appellate Court held that Smt. Shail Bala Sharma, landlord petitioner No. 6 was married and was residing with her husband at Bijnor hence her son Daya Krishna Sharma was not expected to reside at Muzaffarnagar where shop in dispute is situate. The reasoning given by the Appellate Court is utterly erroneous in law. If Smt. Shail Bala Sharma has got a share in the shop in dispute she can very well settle her son in business there from. Landlord petitioner No. 1 Devijendra Kumar Sharma stated that he was having good experience in business and he would help his nephew in starting business at Muzaffarnagar. There was absolutely nothing wrong in such need. Tenants have got two other shops allotted to them, which are situated in a market exclusively meant for Gur and Khandsari business. Their hardship therefore, would have been almost nil in case of eviction. Bona fide need and comparative hardship even though are different from each other however to a certain extent they overlap. In case hardship of tenant is almost nil in the sense that he has got suitable alternative accommodation, need of the landlord may be construed more liberally and there shall be greater justification for allowing the release application (vide Rule 16(2)(b) of the Rules framed under the Act). The view of the Appellate Court that a lady residing along with her husband and sons in another city could not seek release of the shop for the need of her son was utterly erroneous in law.
(3.) ACCORDINGLY writ petition is allowed. Judgment and order passed by the Appellate Court is set -aside. Judgment and order passed by the prescribed authority is restored. Tenants respondents are granted six months time to vacate provided that: (1) Within one month from today they file an undertaking before the prescribed authority to the effect that on or before the expiry of period of six months they will willingly vacate and handover possession of the property in dispute to the landlords -petitioners. (2) For this period of six months, which has been granted to the respondents to vacate they are required to pay Rs. 6000/ - (at the rate of Rs. 1000/ - per month) as damages for use and occupation. This amount shall also be deposited within one month before the prescribed authority and shall immediately be paid to the landlords -petitioners. It is further directed that in case undertaking is not filed or amount of Rs. 6000/ - is not deposited within one month then tenants -respondents shall be liable to pay damages at the rate of Rs. 2000/ - per month since after one month till the date of actual vacation. Similarly if after filing the aforesaid undertaking and depositing Rs. 6000/ -, the property in dispute is not vacated on the expiry of six months then damages for use and occupation shall be payable at the rate of Rs. 2000/ - per month since after six months till actual vacation.;