- (1.) S. R. Singh, J. Cynosure of attention in the instant case is the premises bearing Municipal No. 7/142, situate at Subhash Road Aligarh for the release of which Smt. Sarla Gupta, widow of late Daya Shanker Gupta and Sri Sanjai Gupta, son of late Sri Daya Shanker Gupta, instituted proceedings under Section 21 (1) (a) of the U. P. Act (13 of 1972 ). The need of an unemployed youth namely, Sanjai Gupta, one of the landlords, who had passed his M. A. examination in the year 1986 and having failed to settled himself in some employment or the other, turned to find his niche in the cloth business, proposed to be set up in the shop in question, forms the basis of the application for release of the premises. The prospect of his getting married in no distant future, was assigned as the reason lending urgency to his need for release of the premises in order to enable him to set up his cloth business. The premises in question was alleged to the most ideal one for the cloth business. The need in the circumstances was touted to be the most bona fide, genuine and pressing one. The applicants, as would transpire from the record, proffered an undertaking swearing not to let out the shop in question in the event of the same being released in their favour. They also signified their willingness to recompense the tenant-petitioner in the event of his vacating the premises in dispute. The application was resisted by the petitioner inter-alia on the grounds that the need of the landlord was far-fetched and detracted from being genuine and bona fide and that he would be poised for greater hardship in the event of the premises being released. It was also added for emphasis that earlier also release applications were filed but they were discountenanced by the prescribed Authority, The third release application, culminating in the filing of the present petition was, according to the petitioner, riled on a rebound, for refusal of the petitioner to agree to enhancement in the rent proposed by the Landlords. Originally, the Landlords, Daya Shanker Gupta, was in service and that Sanjai Gupta was wanting in training and requisite experience to run the cloth venture, according to the allegations made in the objections filed on behalf of the petitioner before the prescribed Authority. In the conspectus of the facts and circumstances of the case and having regard to the materials on record, the prescribed Authority vide its judgment and order dated 28-7-1992, tipped the scale of justice in favour of the respondent-landlord with directions to the respondents to recompense the petitioner- tenant by paying two years' rent. The appeal preferred against the judgment and order of the Prescribed Authority, being recipient of the fate of rejection, vide judgment and order dated 19-1-93, the tenant- petitioner filed the instant petition, who, however, died during the pendency of the writ petition and is represented by his Legal Representatives-Bharat Kumar Gupta and others, substituted by court's order dated 25-11-1993.
(2.) I have heard Sri Sanjai Kumar Singh for the petitioner and also Sri K. M. Dayal, appearing for the respondent-landlord. The Counsel appearing for the petitioner vehemently urged at the bar that the authorities under the Act, have allowed the release application sans proper-self-directions to the relevant factors enumerated in Rule 16 of the Rules framed under the Act and without proper consideration of the materials placed on record. Bona fide need within the meaning of Clause (a), sub-section (1) of Section 21, it cannot be gainsaid, is contingent upon variety of facts and are to be discerned in accordance with the guiding principles enumerated in sub-rule (2) of the Rule 16 in respect of a building let out for purposes of any business. It brooks no dispute that an order of release or refusal to release, as the case may be, could not be given the veneer of a valid order under Section 21 (1) (a), if it results from want of proper-self- direction to the basic facts, materials on record and the factors enumerated in sub-rule (2) of Rule 16 of the Rules. In the instant case, however, the prescribed Authority has reckoned with the materials on record in extense and reached a conclusion on the basis of proved facts that the need of the respondent-landlord was bona fide and genuine and that they were poised for greater hardship in the event of the release application being rejected than the one the petitioner-tenant could be exposed to on account of release, application being allowed. The order passed by the prescribed Authority, in my opinion, has been rightly countenanced in appeal by the Appellate Authority. The finding that Sanjai Gupta was unemployed and that he wanted the shop in question for setting up his own cloth business therein, are findings of fact rooted in appraisal of evidence on record. It admits of no doubt that according to clause (a), sub-rule (2) of Rule 16, greater the period since when the tenant has been carrying on his venture in the building, less the justification for allowing the application but at the same time, having regard to overall facts and circumstances of the case, I am persuaded to the view that the findings recorded by the Authority under the Act in relation to bona fide requirements of the landlord cannot be assailed and whittled down merely because the petitioner had been carrying on his business in the shop in question since the year 1977. It is explicitly postulated in clause (b) sub-rule (2) of Rule 16 that where the tenant has available with him suitable accommodation to which he can shift his business without the perils of substantial loss there shall be greater justification for allowing the application. The expression "available with him in this sub-rule does not necessarily mean actual physical availability. A suitable alternative accommodation, which may become available on an effort being made in that direction is also in the comprehension of the expression an in the facts and circumstances of the case, it has been held that the petitioner was wanting in earnest efforts in looking for suitable alternative accommodation, notwithstanding the fact that the litigation between the parties and protracted to considerable stretch. In Rajendra Kumar Gupta v. Gopal Kishan and others, AIR 1995 All 82, it has been held by Sudhir Narain, J and I concur with the view taken therein that "one of the principles for considering comparative hardships of the parties is to find out as to whether the tenant had made a sincere effort to find out alternative accommodation and had placed materials before the authorities to come to their conclusions that he made such an effort. The fact that earlier applications for release, met the fate of rejection some 10 years ago, could not be projected backward to operate as an obstacle in the way of the release application being allowed as with the passage of time, the situation has undergone considerable change. Indubitably, landlord Sanjai Oupta did his M. A. after rejection of the earlier applications and his failure to secure employment for himself, lends cogency to his moving the present application.
(3.) THE learned Counsel appearing for the petitioner as a second string to his bow, contended that albeit the fact that application was moved on behalf of the petitioner for appointment of Vakil-Commissioner in order to get a report on the question as to whether the landlords were possessed of any other accommodation on the first floor, the availability of which is said to have been only vaguely denied by them, but the prescribed Authority refrained from passing any order on the said application and this according to the learned counsel for the petitioner was a gross error in decision-making process vitiating the impugned orders. In my opinion, it was for the Authority under the Act to see whether any local inspection was rendered necessary and if they preferred to adjudicate upon the controversy on the basis of materials placed on the record, their decisions should not be stagmatised as vitiated merely because no specific order was passed on the application moved for appointment of Vakil Commissioner. THE very participation of the petitioner in the subsequent stages of the proceedings and his passive importunities for local inspection on the basis of which application (Annexure-9 to the writ petition) was filed, are symptomatic of his lukewarm approach to the necessity of local inspection. By this reckoning, I find no merit in the submissions advanced by the learned counsel. As to the argument that the respondent Sanjai Gupta was engaged in independent business of sale of building materials and fittings by the name and style-M/s. Super Products Brass ware in a shop in front of D. S. Degree College, Aligarh. Suffice it to say that it is upon consideration of the materials on record that the authorities under the Act concluded that the need of the petitioner for the shop in question far outweighed that of the petitioner and was genuine and bona fide. No other points were pressed into service by the learned counsel.;