DWARIKA NATH SONI Vs. BHAGWAN DASS GUPTA

JUDGEMENT

(1.) By means of present writ petition under Article 226 of the Constitution of India, the petitioner-tenant challenges the orders dated 15th January, 2002 and 18th October, 2004, passed by the prescribed authority as well as by the appellate authority under the provisions of the U.P. Act No. XIII of 1972, copies whereof are annexed as Annexures-'4' and '8' to the writ petition, whereby the appellate authority affirmed the findings arrived at by the prescribed authority and dismissed the appeal filed by the tenant-petitioner against the order passed by the prescribed authority by which the release application under Section 21(1)(a) of the U.P. Act No. XIII of 1972 filed by the landlord-respondent has been allowed. Thus, this writ petition.

(2.) The facts giving rise to the present writ petition are that the petitioner is the tenant of the shop in dispute, which is situated on the first floor of the building in dispute and the respondent is the landlord of the aforesaid shop in dispute. The narration of the facts as stated in the writ petition demonstrates that originally the petitioner was tenant of the aforesaid first floor shop/room and also a shop on the ground floor, which is owned by the respondent-landlord. The respondent-landlord initially filed a release application under Section 21(1)(a) of the U.P. Act No. XIII of 1972 (In short 'the Act') before the prescribed authority in the month of September, 1986 for release of the two shops under the tenancy of the petitioner in favour of the landlord for the bona fide requirement of the landlord and his elder son. The prescribed authority allowed the release application filed by the landlord in favour of the landlord and thereafter the matter came up to this Court, as a consequence thereof in the month of November, 1999, pursuant to the order passed by this Court the ground floor shop of the building in dispute was released in favour of the landlord and possession thereof was handed over to the landlord, while the tenant left with shop/room in dispute on the first floor from where he is carrying on his business. In the year 1997 the present release application was filed by the landlord-respondent under Section 21(1)(a) of the Act for the release of the aforesaid shop situated on the first floor for the bona fide need of the settling down the younger son of the landlord in the business of electronic goods repair and television etc. This release application has been contested by the tenant-petitioner on the ground that this application is firstly mala fide as the part of the shops under the tenancy, i.e., ground floor portion has been released and possession has already been handed over to the landlord by the petitioner and now the tenant has been shifted in the shop situated on the first floor and secondly the present release application is barred by the provisions of the Rules framed under the provisions of 'the Act', as within one year of decision of the first release application, the landlord has filed the present release application and thirdly that the landlord do not have any need, what to say bona fide need, as his son has completely settled and is carrying on the vegetable oil business from his residential portion of the building In dispute. Lastly tenant-petitioner contended that the landlord had built up three shops in other locality which are in possession of landlord and if the landlord bona fide requires, any shop he can use any one of new shops for establishing his son.

(3.) The prescribed authority on the basis of the materials on record have arrived at the conclusion that the need of the landlord is bona fide and that the present release application is barred by the provisions of the rules framed under 'the Act', as the first application was filed for the bona fide need of the landlord and his elder son. Since the younger son, who was not grown up at the time when the shop was let out, has now grown up and has completed his graduation, requires to settle down in life and for that purposes the need of the landlord is said to be bona fide. On the question of comparative hardship, the prescribed authority found that the tilt of the comparative hardship is in favour of the landlord and against the tenant, thus the prescribed authority vide order dated 15th January, 2002 allowed the release application filed by the landlord and directed release of the shop in dispute in favour of the landlord.