Prakash Krishna, J. - (1.) THESE two writ petitions were heard together and are being disposed off by a common judgment as was suggested by the learned Counsel for the parties. They jointly gave a statement that identical controversy is involved in both the writ petitions and the judgment rendered in the writ petition of Mewa lal will also cover the controversy involved in the case of Vishnu Bhagwan and others.
(2.) THE Writ Petition No. 22330 of 2002 was treated as the leading case. THE facts in brief may be noted. Respondent Lav Kush Kumar filed an applica tion under section 21 (1) (a) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act No. 13 of 1972 (hereinafter referred to as the Act) for ejectment of the petitioner on the ground that the said accommodation is bona fide required by him to establish his son Atin Kumar in retail business of utensils and for residential purposes as well. THE accommodation in dispute consists of one shop and also residential accommodation. It was stated that Atin Kumar has now become major and the shop is needed to establish him in a business. THE residential portion shall be utilized by Atin Kumar for his resi dential purposes. THE release application was contested by denying the facts as stated therein. THE petitioner tenant also stated that the landlord has got no son and Atin Kumar's need is irrelevant. The parties led evidence in support of their respective cases. The pre scribed authority by the order dated 20th May, 1999 passed in the Case No. 10 of 1997 released the disputed accommodation in favour of landlord after record ing a finding that the need of the landlord is bona fide and genuine and he will suffer greater hardship in case the release application is rejected. It was found that the petitioner tenant has got his own residential house just opposite the disputed accommodation wherein he could easily shift his business as well as the residence. The said judgment has been confirmed in the Rent Control Appeal No. 4 of 1999 filed under section 22 of the said Act vide judgment and order dated 3rd of May, 2000. Challenging the aforesaid two judgments, the present writ petition has been filed. The only point raised by Shri A.N. Sinha, learned Counsel for the peti tioner, is that the release application was filed to establish Atin Kumar in business and to provide him residential accommodation as well. During the pendency of the release application one shop was got vacated in another Mohalla Dankenganj which instead of giving to Atin Kumar has been given to Awadhesh Kumar, the brother of the landlord, this being so, the submission is that need of the landlord is not bona fide and genuine. Further, it was argued that Awadhesh Kumar has also died in the month of June, 2002 and as such the said accommodation which has been given to Awadhesh Kumar is now avail able for the need of Atin Kumar. The learned Counsel for the respondent, on the other hand, submits that the petitioner tenant has got a residential house just opposite the accommodation in dispute and as such, no interference in the present writ petition is called for. It was submitted that so far as the death of Awadhesh Kumar is concerned, he left behind him his widow, son and daugh ters who are carrying on his widow, son and daughters who are carrying on their business in the shop left by Awadhesh Kumar and the same is not avail able to the present respondent landlord.
(3.) I have given careful consideration to the aforesaid submission of the learned Counsel for the petitioner. At the outset, it may be noted that the shop which was vacated is not exclusive property of the respondent landlord but the said property is a joint property of the respondent landlord and his brother Awadhesh Kumar. The said shop cannot be taken into account for considering the bona fide need of the respondent landlord. Indisputably, the respondent landlord is a co-sharer in the said shop and the said shop was got vacated by his brother Awadhesh Kumar who entered into compromise with the outgoing tenant. He got the said shop vacated for his need. In such circumstances, injulieta Antonieta Tarcato v. Suleiman Ismail, 2007 (67) ALR 470 (SC)=2007 (53) AIC 261 (SC) the Apex Court has held that it cannot be lost sight of the fact that the premises which the landlord requires for her bona fide need belonged to her ex clusively. In that case, the landlady who suffered burn injuries shifted to her brother's residence and resided therein for number of years. Subsequently, land-lady decided to move her own house. During the pendency of the proceedings, the brother expired and it was found that she has got a share in her brother's house. On these facts it was held by the High Court that she should remain in occupation of her brother's house wherein she has become a co-sharer and the release application was rejected. Reversing the judgment of the High Court, the Apex Court observed that it cannot be lost sight of the fact that the premises which the landlady required for her bona fide need belongs to her. In the present case, it is not in dispute that the disputed shop exclusively belongs to the respondent landlord.;