- (1.) PRAKASH Krishna, J. This is a landlord's writ petition. It arises out of release application filed by the landlord under Section 21 (1 ) (a) of U. P. Act No. 13 of 1972 for release of a godown in possession of the respondent No. 2 herein, on a monthly rent Rs. 34. 64 on the ground floor of premises No. 69/117. The petitioner claimed itself as a Hindu undivided family of which Ram Niwas was the Karta who died during the pendency of the present writ petition on 15-3-2005 and a substitution application No. 129893 of 2005 to substitute his heirs was allowed by the order dated 2-5-2007. The said Hindu family consists of 11 family members in all. The Karta had four married sons, namely, Radhey Shyam, Sri Ram, Nawal Kishore and Ravindra Kumar. All the sons are married and they have got their sons and daughters. It has been further stated that out of four sons, three sons, namely, Radhey Shyam, Sri Ram and Nawal Kishore are doing their Kirana business in the name and style of Beriwal Trading Company and the youngest son, Ravindra Kumar is doing business in the name and style of M/s. R. K. Enterprises. All these are doing their business from the one shop situate in Ram Swaroop Market, Nayaganj, Kanpur Nagar and these businesses have their main office in Premises No. 69/117, Bhoosatoli, Kanpur Nagar wherein the godown in question is situate.
(2.) THE need set up in the release application was that wife of Nawal Kishore is unable to adjust with other family members and, as such, the family of Nawal Kishore has been shifted to the ground floor of the Premises No. 69/117 in one room accommodation. THEre is no facility of latrine,bath room and kitchen. Also Ravindra Kumar, who is carrying on the business in the name and style of M/s. R. K. Enterprises has no godown to store the goods while his other three brothers have a separate godown in the same premises No. 69/117. It was further pleaded that the tenant has been dealing in contraband items that is why the disputed shop has been sealed three years ago (release application being filed in the year 1989) by the Excise Department and the said godown which is under the tenancy of respondent No. 2, herein is lying sealed since then and thus the tenant is not using the said godown for any purpose. In response, the respondent-tenant admitted the fact that the Excise Department has sealed the said disputed accommodation for the last more than five years and it is lying as such, but he has hope that seal would be removed soon. However, the need of the landlord was denied on the ground that the landlord has got another godown in the same house and the said godown is big one and it can be utilised for the alleged need of the landlord. In para-3 of the written statement, it was further stated that recently the landlord has increased his business by taking a shop in Ram Swaroop Market, Naiyaganj, Kanpur Nagar and the fact that main office is at house No. 69/117, Bhoosatoli, Kanpur was denied. The Prescribed Authority by the order dated 5-8-1993 passed in Rent Case No. 57 of 1989, allowed the release application on the finding that it is responsibility of the landlord to provide kitchen and amenities to his sons, Ravindra Kumar and Nawal Kishore etc. It also took into account that the godown in occupation of the respondent No. 2 herein, is lying sealed and it is not utilised by the tenant. No benefit is being derived from the said godwon by the tenant nor he is doing any business and as such, the landlord has successfully proved his need to be genuine and bona fide. The finding on the comparative hardship was also recorded in favour of the landlord.
(3.) THE said order was challenged by filing appeal, being Rent Appeal No. 122 of 1993 which came up for hearing before Xth Additional District Judge, Kanpur Nagar. By the impugned order, the appeal has been allowed and the release application has been dismissed. Sri G. L. Tripathi, learned Counsel for the petitioner submits that the view taken by the appellate Court that the need of the landlord is not bona fide and genuine and it is the tenant who is suffering loss due to sealing of the disputed shop is legally incorrect. Elaborating the argument, he submits that the appellate Court having not dis-believed the assertions of the landlord that there is no facility of godown to Ravindra Kumar and latrine and kitchen to Nawal Kishore's family, it erred in rejecting the release application. In response, the learned Counsel for the respondent tenant supported the impugned order.;