- (1.) Heard Sri Atul Dayal, learned Counsel for the petitioners. None has appeared on behalf of contesting, respondents even in the revised list. The petitioner No. 1 had filed an application under section 21(1)(a) of U.P. Act No. 13 of 1972 for release of the shop in dispute which is in the tenancy of the Respondent No. 3. The need set up by the landlord as is apparent from the release application is that he is working as a commission agent in the food grain market and due to advancing age he wants to set up the business of foodgrains further he requires the shop for his son who is of marriageable age and also for another son who is going to attain majority in the near future. The release application was contested by the respondent tenant on the ground that the petitioner himself was doing the business of brokerage and the son of the petitioner who was running a business in another shop has closed down the business. The other son of the petitioner who had attained majority is doing business along with his other brother.
(2.) The prescribed authority as well as Appellate Court have found that the need of the petitioners was not bonafide on the ground that the petitioner's business of commission agent/brokerage is done at the place where market of food grains are situated therefore, the said business cannot be done by the petitioners in the shop in dispute. With respect to the need of the sons of the petitioner, the Courts below have held that one son had closed down the business in the shop and therefore, his need was not bona fide and with respect to the second son it has been held that he is doing business after attaining majority with his brother.
(3.) Learned Counsel for the petitioners has referred to various affidavits filed by the petitioners wherein the fact that one son has closed down the shop have been denied and also petitioners bonafide need was wrongly rejected in as much as he required the shop for changing his profession from brokerage business to some other business. Learned Counsel for the petitioners has placed reliance upon a decision of this Court in the case of Ram Prakash Gupta v. 1st Additional District Judge Budaun, 1990 1 ARC 435 and has contended that the age of the petitioner who wants to run a general merchandise business after his retirement would not be an obstacle in his desire to run separate business so as to not be dependent upon his other sons. While placing reliance on a decision of this Court in the case of M/s. Deep Chand Nem Chand Jain and others v. Prescribed Authority Saharanpur and others,1980 ARC 479 it has been contended that the member of the landlord's family who wants to be engaged in business, since they were unemployed or unengaged the Court cannot brush aside such need and each adult member of the landlord has right to establish his own business. Similar view has been expressed by a decision of this Court in the case of Kelawati (Smt) v. Special Judge (E.C. Act) Moradabad and others,2006 63 AllLR 418, wherein this Court while setting aside the concurrent finding passed by the Courts below has held that every adult member of the landlord's family is entitled to run separate business. Such need can never be said to be not bonafide. It was also held that in view of the long pendency of the litigation there was no need to remand the matter back to the authorities therefore, release application was allowed by this Court. Learned Counsel for the petitioners while relying on the judgment in the case of Sanjay Kumar and others v. Subodh Kumar and others, 2004 54 AllLR 217 has contended that the need of the son cannot be denied merely because he is doing business with his father or any other member of his family.;