S.U.Khan - (1.) -This is tenants' writ petition arising out of eviction/release proceedings initiated by landlord respondent Sri Sukhdeo Gandhi, since deceased and survived by respondents No. 2 to 10 Smt. Parvati Gandhi and others on the ground of bona fide need under Section 21 of U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 in the form of P.A. Case No. 72/11 of 1972. Release application was rejected through order dated 29.3.1985 passed by Ist Additional Munsif, Agra. Property in dispute is a shop situate in Mohalla Charsu Darwaja, Agra. Rent is only Rs. 22 per month. Against the judgment and order passed by the prescribed authority, landlords filed Misc. Appeal No. 33 of 1985. Vth A.D.J., Agra allowed the appeal through judgment and order dated 28.5.1986 set aside the judgment and order passed by prescribed authority and allowed the release application. This writ petition is directed against order passed by the lower appellate court. Writ petition was once dismissed in default then restored. Main point argued by learned counsel for the petitioner is that two other shops were available to the landlord bearing Nos. 4 and 5 and situate in Loha Mandi, Agra.
(2.) INITIALLY release application was filed by original landlord Sukhdev Gandhi for his own need. However, during pendency of release application, he died and was substituted by his heirs including his widow and three sons. After death of original landlord need for his three sons, i.e., Kanhaiya Lal Gandhi, Purshottam Dass Gandhi and Bholanath Gandhi respondents No. 3 to 5, was set up. It was stated that they intended to do some stationery business from the shop in dispute. Release application was amended and through amendment need of sons of deceased landlord was pleaded in accordance with Section 21 (7) of the Act. In the original release application, both Abdul Aziz and Shafiquddin, the original petitioners of this writ petition were impleaded as opposite parties. After death of original landlord and amendment of the release application, tenants pleaded that the three sons of original landlord were doing business from adjoining shop and did not require the shop in dispute. Lower appellate court found that Purshottam Dass Gandhi had passed M.A., B.Ed. and was working as temporary teacher in M. D. Jain Inter College, Agra. Bholanath Gandhi was doing LL.B. at the time of decision of appeal. Through the amendment of the release application, it was also stated that Ravi Gandhi son of Kanhaiyalal Gandhi was not having any shop and he also intended to do business. Tenants are doing business of printing from the shop in dispute. Lower appellate court found that other seven shops in the same building were in tenancy occupation of other tenants.
(3.) LANDLORDS admitted that in Loha Mandi, they had also five shops, however, none of those shops was vacant and they were also in dilapidated condition. Lower appellate court found that out of the five shops of Loha Mandi, four were occupied by tenants and one, i.e., Shop No. 4, was vacant. In respect of another tenant of one of the shops (No. 5) in Loha Mandi, decree for eviction had been passed but had not been executed till then. In respect of Shop No. 4, landlord stated that it was in the shape of khandahar not having any roof. Lower appellate court found that Kanhaiyalal Gandhi was having commission agency for selling papers. In respect of Kanhaiyalal Gandhi, tenants pleaded that initially he was doing business from Sep Mandi, however he had vacated the said shop and thereafter opened some shop in Kainara Bazar. The latter fact was denied. The shop in Sep Bazar was on rent with Kanhaiyalal Gandhi. Supreme Court in G. K. Devi v. Ghanshyam Das, AIR 2000 SC 656, has held that a tenanted shop available with the landlord cannot be taken into consideration while considering his bona fide need. In any case, the said shop had been vacated. The prescribed authority had held that Kanhaiyalal was working as servant in Ram Prasad Book Seller Shop, however, this fact was wholly irrelevant. Every landlord is entitled to have independent separate business. He cannot be compelled to work as servant in someone else's shop. In respect of Purshottam Dass Gandhi, lower appellate court held that even if he was working as temporary teacher in a college, he could not be compelled to continue with the said job if he intended to do business of selling books and stationery from the shop in dispute. In respect of Bholanath Gandhi, it was found that he had got himself enrolled as an advocate in 1977, however, Boholanath Gandhi stated that he was not a regular practitioner and he looked after only 7 or 8 cases concerning his family properties.;