S. D. Agarwala, J. - (1.) THIS is a petition under Article 226 of the Constitution of India arising out of proceedings under the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, U. P. Act XIII of 1972, hereinafter referred to as the Act. The petitioner is a tenant of a portion of house No. 51, Wrightganj East Ghaziabad. Respondent Nos. 3 to 5 are the landlords of the said premises. The respondent Nos. 3 to 5 filed an application under Section 21 (1) (a) of the Act on the ground that the property in question is bona fide required by the respondents-landlords for residential purposes after demolition and new constructions. It was alleged that the respondents-landlords are living in a portion of a shop in Wrightganj East which is neither sufficient for business nor for residential purposes. It was alleged that the disputed house was purchased by the respondents-landlords for the reason that they had shortage of accommodation, and as such they required the house bona fide for their personal use and occupation. THIS application was contested by the petitioner. It was alleged that the need of the landlord-respondents was not bona fide and that the application for release has been moved on mala fide grounds. It was alleged that the landlords had many other alternative accommodations available to them and that they have also share in several properties and as such the need was not genuine. It was also alleged that the respondents-landlords are comfortably living in the house which is presently in their occupation. In particular it was stated that portions of the house which were in occupation of Anand Prakash Mittal and Radhey Mohan Pandey were ' pucca ' and that the portions in the occupation of Anand Prakash Mittal and Radhey Mohan Pandey were forcibly demolished by the landlords-respondents. It was consequently alleged that in case the need of the landlord-respondents was genuine, they would never have demolished the portions in the occupation of Anand Prakash Mittal and Radhey Mohan Pandey. It was also alleged that the landlords-respondents, in fact, want to get the disputed portions released so that they can raise a commercial market.
(2.) THE prescribed authority by his order dated 1-9-1982 allowed the release application. THE prescribed authority after examining the evidence on record came to the conclusion that the need of the landlords-respondents was bona fide and genuine and that on a comparison of the hardship of the parties it found that greater hardship would be caused to the landlord in case the release application was not allowed. Aggrieved by the decision dated 1-9-1982, the petitioner filed an appeal being Rent Control Appeal No. 153 of 1982 under Section 22 of the Act. This appeal came up for hearing before the II Additional District Judge, Ghaziabad who by his detailed judgment dated 7-11-1985 dismissed the appeal and upheld the findings recorded by the Prescribed Authority. The appellate court recorded a finding that the building presently in occupation of the landlords-respondents is not sufficient to meet their requirement. The said building which is a tenanted accommodation is a part of the shop. The building does not have sufficient number of rooms to fulfil the requirement of the respondent-landlords. It was also found that the accommodation which was in occupation of Shri Anand Prakash Mittal and Radhey Mohan Pandey was not in such a condition that it could have been occupied by the landlords. The landlords got it demolished only because it was not good enough for living. It was further held that the demolition of these portions did not lead to the conclusion that the application for release was mala fide. The further finding recorded by the lower appellate court was that the building cannot be reconstructed in part over the portions vacated by Anand Prakash Mittal and Radhey Mohan Pandey. Aggrieved by the decision of the appellate court dated 7-11-1985 the petitioner has filed the present petition challenging both the orders passed by the prescribed authority as well as by the appellate authority.
(3.) I have heard the learned counsel for the parties. The contention of the learned counsel for the petitioner is that the two portions in occupation of the tenant, namely, Anand Prakash Mittal and Radhey Mohan Pandey have been vacated by the tenants. They were lying vacant, they had been demolished by the landlords with a mala fide object and as such the need set up by the landlords is not bonafide and genuine. It was further urged that reconstruction can be made on the site of the portions occupied by Anand Prakash Mittal and Radhey Mohan Pandey and as such also the case set up by the landlords-respondents that the property in dispute occupied by the petitioner is required for demolition and reconstruction is not bona fide. This circumstance was a relevant circumstance to be considered by the courts below which they have not considered and as such the findings recorded in regard to bona fide need is vitiated in law. Before examining this submission, I will examine the cases cited by the counsel for the petitioner in support of his submissions. The first case which has been relied upon by the learned counsel is the decision by the Hon'ble Supreme Court of India in M. M. Qasim v. Manohar Lal, AIR 1981 SC page 1113. Reliance has been placed on the following dictum of the Supreme Court laid down in this case :- " When examining a case of personal requirement if it is pointed out that there is some vacant premises with the landlord which he can conveniently occupy, the element of need in his requirement would be absent. To reject this aspect by saying that the landlord has an unfettered right to choose the premises is to negative the very raison d'tre of the Rent Act. Undoubtedly, if it is shown by the tenant that the landlord has some other vacant premises in his possession, that by itself may not be sufficient to negative the landlord's claim but in such a situation the Court would expect the landlord to establish that the premises which is vacant is not suitable for the purpose of his occupation or for the purpose for which he requires the premises in respect of which the action is commenced in the Court. It would, however, be a bald statement unsupported by the Rent Act to say that the landlord has an unfettered right to choose whatever premises he wants and that too irrespective of the fact that he has some vacant premises in possession which he would not occupy and try to seek to remove the tenant. " ;