- (1.) HEARD learned Counsel for the petitioner and learned Counsel for the landlord No. 1, who has appeared through caveat.
(2.) THIS is tenants' writ petition arising out of eviction/release proceedings initiated by landlady respondent No. 1 on the ground of bona fide need under section 21 (1) (a) of U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 in the form of P. A. Case No. 26 of 1999. Property in dispute consists of two shops, one in tenancy occupation of petitioners No. 1 to 3 and proforma respondents No. 2 and 3 and the other in tenancy occupation of petitioner No. 4 P. D. Agarwal, both are paying rent of Rs. 92. 63 per month each. Area of each shop is 84 sq. yard or 756 sq. feet (18' x 42' ). The property in dispute was purchased by the landlady through registered sale deed on 1. 4. 1986. It was situate on lease-hold land, which was got converted into free-hold by the landlady by paying about Rs. 10. 67 lacs including stamp duty. Landlady offered some alternative shops to the tenants. She also stated that Allahabad Development Authority had constructed a complex in the Civil Lines, where shops in dispute are situate, and those shops were available on different prices ranging between Rs. 2 lacs to Rs. 6 lacs and landlady was ready to purchase one shop to each of the tenants of their choice meaning thereby that both tenants could take shop of Rs. 6 lacs each. It was further stated by the landlady that in case shops are released in her favour, after demolishing them, she would construct multi-storeyed commercial complex and she offered two shops to the tenants in the said complex. all the three offers were contemptuously rejected by the tenants. Prescribed Authority/additional Civil Judge, Court No. 13, Allahabad allowed the release application through judgment and order dated 31. 7. 2006. Landlady was directed to pay two years' rent to each of the tenants. Against the said judgment and order, tenants petitioners filed appeal being R. C. Appeal No. 138 of 2006. A. D. J. Court No. 1, Allahabad, through judgment and order dated 28. 7. 2007, allowed the appeal in part. The finding of bona fide need recorded by the prescribed authority was approved by the Appellate Court. However, in respect of comparative hardship, Appellate Court directed that after construction of the multi-storyed commercial complex by the landlady on the site of the disputed shops, the landlady shall provide two shops to each of the tenants. The shops to be given to the tenants were particularly marked in the sanctioned map by the learned, A. D. J. The Appellate Court further held that objection of the tenants that the area of the said two shops proposed to be constructed was much less in comparison to the area of the instant shops, hence the learned A. D. J. directed that sanctioned plan should suitably be got amended and the shops must be constructed on slightly bigger area. Last two paragraphs of the Appellate Court judgment and order (operative portion) are quoted below :- "the offers and counter offers made by both the parties were not accepted by each other. After considering all the facts I am of the view that the learned Court below has rightly held need of the landlady as genuine. Regarding comparative hardships learned Court below has found the need in favour of the landlady but I am of the view that after considering the comparative hardship of both the parties it shall be proper to modify the impugned judgment on this point (comparative hardship ). It shall be proper that the premises in dispute may be released and the landlady be directed to demolish the same and reconstruct the same as per sanctioned plan duly approved by the A. D. A. which is on record as 42-B/7 in the learned Court below. The proposed offer which has been shown with red colour and with 1 and 2 in the said map may be provided to the appellants tenants but with little more space. In the sanctioned plan in the west side of the proposed accommodation an open space of 17. 6" and 23. 3" has been shown in the southern side and in the northern side an entrance of similar width has been shown that may be altered little bit so that the proposed accommodation may be enlarged in the west so that two shops each of the 10 feet x 20 feet are carved out and those may be offered to the tenants. If these proposed accommodations are enlarged the same shall not affect the sanctioned plan and even if necessary the supplementary plan may be submitted in the A. D. A. along with a copy of this order who should consider to approve the same. The appeal deserves to be partly allowed. ORDER the appeal is partly allowed against O. P. No. 1 Smt. Neeru Kapoor. Both the parties shall bear their own cost. Both the appellants/tenants are directed to vacate the shops/premises. The landlady is directed to demolish the disputed structure and reconstruct the same as per sanctioned plan which is Annexure-1 to the affidavit 42-B by providing one shop each of an area of at least 200 square feet to each set of tenants within 4 months after the same is vacated on the ground floor in the disputed premises, to be vacated. During this period of 4 months the landlady shall pay to each tenant Rs. 6000 per month so that they can arrange some stop-gap arrangements. If reconstruction is not completed within 4 months then from the 5th month onwards the landlady will pay Rs. 10,000 per month to each set of tenants and shall ensure reconstruction is completed within 6 months after the premises is vacated. Before getting the building vacated the landlady must make all necessary arrangements and provisions and she shall serve a written notice to the tenants fixing a date for vacating the premises giving at least 45 days time to tenants to vacate the same. The tenants/appellants are directed to file an affidavit in this Court whether they are willing to accept the above direction or not. In case they are not willing to follow the above direction then the impugned judgment shall stand good and the landlady shall be at liberty to proceed in the matter in accordance with law. "
(3.) LEARNED Counsel for the petitioner has very categorically argued and stated that when arguments in the appeal were concluded and judgment was reserved, the Appellate Court did not indicate that it would be directing delivery of possession of two new shops to the tenants after suggesting amendments in the plan otherwise tenants would have out rightly rejected the said offer/suggestion. In any case no affidavit as directed by the Appellate Court was filed by the tenants. Learned Counsel has argued that firstly even the extended area would be much less than area of the shops occupied by each tenant and secondly it would not be easy to get the plan amended. As far as the last part of this argument is concerned, I fully agree with the learned Counsel for the tenants petitioners that it would not be easy to get the sanctioned plan amended. In any case, it was not at all proper for the Appellate Court to direct the landlord to get the sanctioned plan amended. Learned Counsel for the landlords also stated that it would be very difficult to get the plan amended and it is quite possible that the amendment suggested by Appellate Court might be refused by the Allahabad Development Authority.;