MOHAMMAD FAROOQ Vs. ABDUL MAJEED

JUDGEMENT

(1.) THE brief facts leading to filing of the present writ petition under Article 226 of the Constitution of India are that the petitioner is the tenant of the shop in dispute which is situated in a building which was purchased by the respondent-landlord on 1st December, 1993 from its erstwhile owner. The landlord immediately after purchase of the aforesaid building issued a notice to the petitioner that since he has purchased the building, in which the shop in dispute is situated, the rent shall be paid by the petitioner-tenant to the respondent-landlord. The petitioner on receipt of the notice sent the rent for the month of December, 1993, January and February, 1994 which was not accepted by the landlord. Therefore, the tenant started depositing the rent under Section 30 of U.P. Act No. 13 of 1972 (hereinafter referred to as the Act). On 30th May, 1995 the landlord filed an application purporting to be an application under Section 21(1)(b) of the Act for release of accommodation on the ground that the building in which the shop is situated is in a dilapidated condition and requires demolition and reconstruction, therefore, the same should be released in favour of the landlord. During the pendency of the aforesaid application an offer was made by the landlord that after reconstruction of the building the petitioner-tenant will be put back into possession of a shop of the same dimension on the same rent which he is paying today that is on the date when the offer was made. This offer was accepted by the petitioner-tenant. During the pendency of the application referred to above which has been registered as P.A. Case No. 4 of 1995. The landlord filed another application under Section 21(1)(a) of the Act after expiry of three years period from the purchase of the building by the landlord which was purchased on 1st December, 1993 which has been registered as P.A. Case No. 2 of 1997 for release of the shop in dispute on the ground that the landlord requires the shop in dispute and same be released in his favour as he will demolish the building in dispute and reconstruct the shops for settling down his sons in business who are still unemployed. It is further stated by the landlord that the tenant is carrying on business of repairing radios etc. in the shop in dispute and that his residential accommodation is situated in the same locality wherein a shop is available in the residential building of the tenant where he can shift his business of repairing radios etc. without any hardship.

(2.) BOTH the applications were contested by the tenant. Parties exchanged their pleadings and evidence before the prescribed authority. Before the prescribed authority the tenant, with regard to application under Section 21(1)(b), has stated that the building is neither in dilapidated condition nor requires demolition and reconstruction as alleged by the landlord and that the landlord has not demonstrated that he has complied with the provision of Rule 17 of the Rules framed under the provisions of U.P. Act No. 13 of 1972. Thirdly the landlord has not demonstrated that his financial condition is such that he can go with the proposed construction. Therefore, the application under Section 21(1)(b) is liable to be dismissed. The prescribed authority on the question of non-compliance of sub-rule (4) of Rule 17 namely financial capacity of the landlord, has held after relying upon the decision of this Court in Kailash Devi v. IIIrd Additional District Judge, Kanpur, 1978 All Rent Cas 392, wherein this Court has laid down that it is not necessary for the landlord that he should demonstrate that he has collected money or that he has the ready money for the proposed construction. Therefore, the allegation of the tenant that sub-rule (4) of Rule 17 has not been complied with by the landlord, is not attracted in the present case. As far as question of other sub-rules are concerned the landlord has filed evidence that he has got sanctioned plan from the concerned local authority and has also got permission to demolish and reconstruct the building from the local authority concerned. Therefore, this plea is also not available to the petitioner-tenant.

(3.) THE tenant has also submitted that two applicants, one under Section 21(1)(a) and another under Section 21(1)(b) of the Act, are not maintainable in the eyes of law. This argument has been considered by the prescribed authority and the prescribed authority relied upon the decision of this Court reported in Ravi Prakash v. IVth Additional District Judge, Saharanpur, (2001)1 All Rent Cas 242 : (2001 All LJ 1805), wherein this Court held that this argument is not acceptable. It is open even for an applicant to seek relief in the alternative and the application cannot be said to be not maintainable on this ground that two applications have been filed, one under Section 21(1)(a) and another under Section 21(1)(b) of the Act. Thus application under Section 21(1)(b) was allowed. While considering the application under Section 21(1)(a) of the Act, the prescribed authority has arrived at the conclusion that the need to settle unemployed son has been held to be bona fide by series of decisions of this Court, therefore, the need set up by landlord was held to be bona fide. On the question of comparative hardship the prescribed authority relied upon the undertaking given by the landlord in Case No. 5 of 1995 which is application under Section 21(1)(b) wherein the landlord has given undertaking that after reconstruction he will hand over a shop of the same dimension to the petitioner-tenant. Thus the prescribed authority allowed the application under Section 21(1)(a) also and directed release of the accommodation in question, in favour of the landlord. Both the applications have been allowed by the prescribed authority by the common judgment dated 3rd September, 2002.