- (1.) S. R. Singh, J. This writ petition is directed against the orders dated 10-4-1996, 29-5-1990 and 30-8-1990 passed by the ap pellate authority and the order dated 5-10-1982 passed by the Prescribed Authority. By order acted 10-4-1996 the appellate authority dismissed the appeal preferred under Section 22 of the U. P. Act No. XIII of 1972 against the order dated 5-10-1982 passed by the Prescribed Authority in favour of the respondent-landlords in proceedings under Section 21 (1) (a) of the said Act. By order dated 29-5-1990 the appellate authority rejected the applications 10-C and 22-C moved on behalf of the petitioner. It may be noted that by means of the applica tion 10-C the petitioner wanted to bring on record an additional fact through an af fidavit stating therein that the respondent-landlords have got a business in the name and style of M/s. Hindustan Charmkala Utpadan Sahkari Samiti Ltd. at Charbagh, Agra of which Prithvi Raj Sikka, Indra Prakash Sikka and Shanti Prakash Sikka were directors and Vidya Sagar Sikka was its managing director and, therefore, their re quirement for the premises in question could not be said to be bonafide. The ap plication 22-C was filed by the petitioner under Section 34 of the Act read with Rule 22 of the Rules made under the Act for cross examining Shanti Prakash Sikka on the facts stated by him in his affidavit filed in opposi tion to the application 10-C. Similarly order dated 30-9-1990 was passed by the appellate authority on the application 29-C dated 23-8-1990 moved by the petitioner with a prayer that in term of earlier order passed by the High Court he may be given full oppor tunity to lead evidence on the points remitted for decision by the High Court vide judgment and order dated 22-8- 1988. It may be pertinent to observe here that the order dated 30-8-1990 was challenged by the petitioner in writ petition No. 258 of 1990, but the same was dismissed on the ground that the petitioner could agitate the legality of the order while challenging the final order passed in appeal.
(2.) AS noted above the application for release moved under Section 21 (1) (a) of the Act was allowed by the Prescribed Authority vide order dated 5-10-1982. The appeal preferred against the said order having been dismissed vide judgment and order dated 8-11-1985, the matter was brought to this Court by means of a writ petition being Writ Petition No. 17994 of 1988, Amar Nath v. IVth Additional District Judge, Agra and others. The said writ peti tion was allowed and the appellate order dated 8-11-1985 quashed and the matter was remitted back to the appellate authority for deciding the question of comparative hardship in accordance with law taking into consideration the observations made in the judgment expeditiously at a very early date "after giving full opportunity to the parties. " A perusal of the judgment would indicate that in the opinion of the learned Judge, following two points required reconsidera tion : " (i) In view of the fact that the tenant-petitioner is carrying on his business for 13 long years in the shop, the question of comparative hardship should be reassessed and, therefore, a clear finding be recorded. (ii) On the basis of material on record, whether it is possible for the landlords to start their business in the first floor instead of disturb ing the shoe business of the tenant-petitioner on the ground floor. " It was pursuant to the aforesaid direction given by the High Court that the matter was heard by the appellate authority on the points enumerated in the High Court's judgment and upon reconsideration the order passed by the Prescribed Authority was again maintained vide order dated 10-4-1996. Learned counsel for the petitioner-Sri Yatinder Singh and Sri R. S. Maurya Vehemently urged that the appellate order passed earlier on 8-11-1985 having been quashed by the High Court, entire con troversy between the parties including the one relating to bona fide need of the landlord stood reopened and the appellate authority erred in confining itself to the question of comparative hardship only. Submission made by the learned counsel for the petitioner is loaded with merits. A read ing of the High Court's judgment dated 22-8-1988 would indicate that the matter was remitted to the appellate authority seem ingly for reconsideration only on the points specifically enumerated in the judgment. However, the question of comparative hardship and the question whether it was feasible for the landlords to start their busi ness in the first floor instead of disturbing the shoe business of the tenant- petitioner on the ground floor formulated by the High Court are, in my opinion, inter-woven with the question of bona fide need of the landlords and cannot be taken in isolation.
(3.) IN M. M. Qasim v. Manohar Lal, AIR 1981 SC 1113 the Hon'ble Supreme Court was concerned with Section 11 of the Bihar Buildings (Lease, Rent and Eviction) Con trol Act, 1947 which provides for eviction of tenants, inter alia, on the ground that the building is "reasonably" and in "good faith" required by the landlord for his occupation or for the occupation of any person for whose benefit the building was held by the landlord. Dealing with the question whether it was for the landlords to decide which of the alternative accommodation could be suitable for them, a three-Judge Bench of the Hon'ble Supreme Court was pleased to observe as under: ". . . . . . . . . . . . . The time honoured notion that the right of re-entry is unfettered and that the owner landlord is the sole Judge of his requirement has been made to yield to the needs of the society which had to enact the Rent Acts specifically devised to curb and fetter the unrestricted right of re-entry and to provide that only on proving some enabling grounds set out in the Rent Act the landlord can re-enter. One such ground is of per sonal requirement of landlord. 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 for 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'etor 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 suffi cient 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 action is commenced in the court. . . . . . . . The court must understand and ap preciate the relationship between legal rules and one of necessities of life-shelter-and the way in which one part of the society exacts tribute from another for permission to inhibit a portion of globe. . . . . . . " True, the High Court in its earlier judgment dated 22. 8. 1988 did not specifical ly require the appellate authority to go into the question of bona fide need, but the ques tions formulated by it, particularly the ques tion No. (ii) did have a direct bearing on the question of bona fide need of the landlord for in the event of the first floor accom modation available with the landlords being found suitable for them to start their busi ness, element of need for the premises in dispute situate on the ground floor would become non-existent. The appellate court was, therefore, not right in holding that it would not go into the question of bona fide need in view of the High Court's judgment dated 22-8-198s. It is true that in Mrs. Meenal Eknath Kshirsagar v. M/s. Traders and Agencies and another, JT 1996 (6) SC 468, reliance on which was placed by the learned counsel for the respondents-Sri Swami Dayal assisted by Sri Madhav Jain, a two-Judge Bench of the Hon'ble Supreme Court has held that the landlord is the best Judge of his residential requirement and if he desires to beneficial enjoy his own property, it is not for the courts to dictate him to continue to occupy such premises, but these observations are qualified with the rider that alternative accommodation oc cupied by him as a tenant or on any other basis is either insecure or inconvenient. Therefore, the question that required con sideration by the appellate authority was whether the accommodation available with the landlords on the first floor of the build ing was suitable and convenient for the purpose of business they wanted to start in the shop in question located on the ground floor. The appellate authority has held that the landlords could start their business even in the shop available with them on the first floor, but then the appellate court went on to hold that the landlords could not be com pelled to start their business in the premises available with them on the first floor. This approach of the appellate authority is not a correct approach. As observed by the Supreme Court in the aforestated cases, it was for the landlords to establish whether the first floor accommodation available with them was "either insecure or inconvenient". It was expected of the landlords to establish that the vacant ac commodation available with them was not suitable for the purpose for which they re quired the premises in respect of which ac tion was commenced under Section 21 (1) (a) of the Act.;