- (1.) SHITLA Pd. Srivastava, J. This peti tion under Article 226 of the Constitution of India has been filed for quashing the judgment and order dated 3rd, December, 1993 and 20th November, 1997, passed by the respondent Nos. 1 and 2 respectively.
(2.) THE facts giving rise to the present petition are that the petitioner is a tenant. An application for release under Section 21 (i) (a) of U. P. Act No. 13 of 1972 was filed by the respondent/landlords Par- matama Sharan and Hem Chandra on the ground that the property has been ac quired by them in a family settlement and they are owners and landlords thereof. It was stated in the application that respon dent No. 4 Hem Chandra was a Professor in H. AV. Inter College, Saharanpur and retired on 30- 6- 1989 and the shop in ques tion is required by him to open a Laboratory for testing the silver and gold. The release application was con tested by the petitioner. He challenged the family partition and it was asserted that the alleged family partition is a sham transac tion and the petitioner has not attorned respondent Nos. 3 and 4 landlord, nor the petitioner was aware of the alleged parti tion in the family of respondent Nos. 3 and 4 and their father with their brothers. In fact Phool Chand was receiving rent and even after alleged partition, Phool Chand was receiving rent, therefore, the applica tion under Section 21 (i) (a) is not main-tainable on behalf of the respondent Nos. 3 and 4. It was further stated that various shops and properties are lying vacant in the hands of the landlords, therefore, the landlords have no bona fide need for the shop in question. The parties filed evidence, affidavits in respect of their respective claims. The Prescribed Authority allowed the release application holding the need to be bona fide. Aggrieved by the order of the Prescribed Authority an appeal was preferred before the District Judge. Before the District Judge an application for spot inspection was filed and further an application was filed that Sudhir Kumar has shifted to Delhi. The appeal was dis missed on 20th November, 1997. The petitioner has challenged these two judg ments in the present writ petition.
(3.) MR. Rajesh Tandon, Advocate has made a statement that he has appeared on behalf of the contesting respondents but will not file any counter-affidavit and he is ready to argue the case at the admission stage on the basis of the judgment filed by the petitioner. I have heard learned Counsel for the parties and have perused the record. Learned Counsel for the petitioner has vehemently urged that the finding ofbona fide need is absolutely perverse. Just ad jacent to the shop another shop No. 13/382/10 is lying vacant, which could have been occupied by the landlord. It was fur ther urged that when application was filed for spot inspection in respect of shop No. 13/682/1, the appellate court should have accepted the same for appreciating the need of the landlord. It was also urged that the sons of the respondent/landlord were not carrying any trade in Saharanpur, rather they are doing their business in Delhi under the name and style of Mittal Brothers, but this aspect of the case has not been seen by the appellate court. Further contention of the petitioner is that it is open to the tenant to show that the parti tion was not bona fide and was a sham transaction to over come the course of Rent Control laws, which protected the eviction of the tenant, but for that purpose reliance was placed on a case decided by the Hon'ble Supreme Court, S. K. Sattarv. Gundappa, but the court below has not appreciated the legal position. It was also submitted that in the same Bazar there was another property lying vacant, which was on the first floor just four and five times bigger area, This is in occupation of the petitioner, but the court below has wrong ly held that it is not for commercial pur pose. It is further submitted that the petitioner is 67 years of age, therefore, at the fag end of his life it is impossible for him to carry on trade, then the release application should not have been allowed. His further argument is that the petitioner has no experience of business, therefore, his need was notbonafide. 7, Learned Counsel for the respon dent has urged that the finding of fact has been recorded by the courts below on the point of private partition, as well as on the point of bona fide need, therefore, no in terference should be made under Article 226 of the Constitution of India. The Prescribed Authority held the need or the landlord is genuine and he is competent to do desired business on the point of family settlement. The Prescribed Authority held that this statement cannot be challenged in this proceeding. It is also held that the alternative accommodation suggested by the petitioner available to the landlord cannot be released for commercial pur pose. On the point of comparative hardship also it was held that the tenant did not try for any alternative accommoda tion, ultimately the release application was allowed. Appellate Court also dis missed the appeal. Appellate Court also considered the evidence available on record and this fact also that the applicant has specifically stated that the tenant has taken one shop in Mohalla Matia Mahal and has shifted there. The appellate Court also observed that the tenant has also filed an affidavit admitting this fact that in Mohalla Matia Mahal the shop which was taken on rent is in occupation of his son, namely, Subhash Chandra who is doing his business there. 8. Learned Counsel for the petitioner has urged that the landlord has to prove his bona fide need and it will be open to the tenant to show that any transaction on the basis of which the landlord realise regard ing his sole right to get the accommodation released can be challenged by the tenant. He has placed reliance on a case AIR 1997 SC998sk. Sattar S K. Mohd. Choudhary v. Gundappa Amabadas Bukater, learned Counsel for the petitioner has placed reliance at paragraph 37 of the judgment on the point that a co-sharer cannot in itiate action for eviction of the tenant from the portion of the tenanted accommoda tion nor can he sue for his part of the rent. The tenancy cannot be split up either in estate or in rent or any other obligation by unilateral act of one of the co-owners. It has further been observed in this very para graph that if, however, all the co-owners or the co-lessors agree among themselves and split by partition the demised property by metes and bounds and come to have definite positive and identifiable shares in that property, they become separate in dividual owners of each served portion and can deal with that portion as also the tenant thereof as individual owner/lessor. The right of joint lessors contemplated by Section 109 comes to be possessed by each of them separately and independently. There is no right in the tenant to prevent the joint owners or co-lessors from par titioning the tenanted accommodation among themselves. Whether the premises, which is in occupation of a tenant, shall be retained jointly by all the lessors or they would partition it among themselves, is the exclusive right of the lessors to which no objection can be taken by the tenant, particularly where the tenant know from the, very beginning that the property was jointly owned by several person and that, even if he was being dealt with by only one of them on behalf of the whole body of the lessors, he cannot object to the transfer of any portion of the property in favour or a third person by one of the owners or to the partition of the property. It will, however, be open to the tenant to show that the partition was not bonafide and was a sham transaction to over come the rigorous of Rent Control laws which protected evic tion of tenants except on specified grounds set out in the relevant statute. 9. Sri Rajesh Tandon learned Coun sel for the contesting respondent has sub mitted that question whether the partition was genuine or not is a finding of fact. For this purpose he has placed on a case 1982 ARC 526, B. N. Tiwari V. Ilnd Additional District Judge, Nainitial and others. Sri Tan don has further urged that the tenant has to show that under what circumstances the transaction which has been placed by the landlord is a sham transaction. For this purpose he has placed reliance on a case AIR 1997 SC 998 (supra) and further placed reliance in a case 1996 (5) JT 272, Mis. Taraknath and Ann v. Sushil Chandra Dey in which it was held that the family settlement between brothers, after the death of the father, five sisters gifted the property to their five brothers. From the head note it is apparent that the family settlement between the brothers, after the death of the father, five sisters gifted the property to their five brothers at a family settlement between the brothers, the property, which was in occupation of a tenant, was allotted to one person who sold the same to the appellant and it was held that the sisters could relinquish their right byway of gift, even oral, which is valid in personal law. Further held that since the tenant was in occupation, delivery of physical possession was not warranted. By this judgment it was argued that the court ultimately held that there can be family settlement. He has further argued that the Prescribed Authority has nojurisdiction to hold that the premises is collusive one. For this purpose he had placed reliance on a case 1980, ARC 255 Dinesh Kumar and others v. Ist Additional District Judge, Nainital and others, specially paragraphs 6 and 7 of the judgment. He has further placed reliance in a case 1991 (2) ARC 532 Sarpj Kumar Jaiswal v. Illrd Additional District Judge, Allahabad and OM. specially para graph 17 of the judgment. He has also placed reliance on a case 1996 (2) ARC 180 Nathu Mall v. Kailash Chandra and others. For the purpose that the Prescribed Authority is requires to decide the ques tion of bonafide need objectively and not on motivation or subjective satisfaction of the landlord. or the tenant, the age of landlord is no bar the release and the plea of partition in the family of the landlord should be taken into consideration. He has also placed reliance in a case 1993 (I) ARC 121 Sudarshan Singh Bedi v. Additional District Magistrate (Rent Control and Evic tion Officer), Varanasi and others for the purpose that the authorities under the Rent Control Act are quasi judicial authority adjudicating upon civil rights of the parties. 10. Sri Pramod Jain has stated in paragraph 5 of the writ petition that the petitioner has challenged the family settle ment from the very beginning and his con tention is that he has taken it as ground No. E. His further contention is that as in the judgment of the Prescribed Authority this fact is mentioned and further that in the affidavit filed by Om Prakash in paragraph 6 at 40 of the paper book he has challenged the family settlement, therefore, it cannot be said that the petitioner has taken a fresh ground here. 11. After hearing learned Counsel for the parties at length and going through the record of the case I am of the view that the question which was for consideration before the Court was as to whether the property in question came in the share of the persons who had applied for the release and whether the petitioner who was a tenant could challenge the same and show that the need of the landlord is not bonafide. From a perusal of the judgment of the appellate authority it is apparent that the appellate authority has not con sidered the legal position properly. There fore, it is a fit case in which his order should be quashed and the matter may be sent back before the appellate Court to decide the appeal afresh on the point as to whether the tenant can challenge the case when this plea was taken by him from the very beginning. The appellate Court shall look into the various decision on the sub ject and decide the controversy afresh. 12. In the result the writ petition is allowed in part. The judgment of the ap pellate Court dated 20-11- 1997 is hereby set aside and the matter is being sent to the appellate Court to restore the appeal and decide the controversy with regard to the right of the tenant in the light of the judg ments cited above. There shall be no or ders as to the cost. Petition allowed .;