ISRAR AHMAD Vs. DEVANAND

JUDGEMENT

(1.) This writ petition, by the tenant under Article 226 of the Constitution of India, challenge the order dated 19th August, 2004, passed by the appellate authority under the provisions of U.P. Act No. 13 of 1972 (in short the Act) whereby the appeal filed by the petitioner-tenant against the order of the prescribed authority under the Act dated 17.2.2004, is dismissed and the application filed by the respondent-landlords under Section 21(1)(a) and (b) of the Act has been allowed by the prescribed authority and the prescribed authority directed release of the accommodation in dispute in favour of the landlord.

(2.) Brief facts are that respondent-landlords' father, Arjun Prasad, filed an application before the prescribed authority under Section 21(1)(a) and (b) of the Act on the ground that the building in question is more than 150 years old and the building is in dilapidated condition which may fall down any time. Apart from the above Arjun Prasad also stated that he has two sons, Devanand and Vidyanand, who are 38 and 29 years of age respectively, who could not study beyond Intermediate and are still unemployed. The landlord, therefore, wanted to settle them in two separate businesses. It is, therefore, prayed that premises may be released in favour of the landlord for aforesaid bona fide need. The landlord filed the aforesaid application further on the ground that the building is in a dilapidated condition which requires demolition and reconstruction. The landlord further submitted that in order to settle the two sons, Devanand and Vidyanand, the landlord's need is bona fide. On the question of comparative hardship the landlord stated that the tenant will not suffer any hardship because he has another big house in the same town Shahganj where he can easily shift his business. The aforesaid allegations were denied by the tenant who filed a written statement. It would not be out of place to mention that during the pendency of the said application Arjun Prasad, the landlord, died and his sons, Devanand and Vidyanand were substituted and they filed affidavit. The tenant denied the allegations made by the landlord and stated that the building is not 150 years old as alleged by the landlord and that it is not in dilapidated condition which requires demolition and reconstruction. The building is in good condition and in the adjoining shop itself Arjun Prasad was carrying on business which is now looked after by his two sons and his widow. Therefore, it is submitted by the tenant that the need of the landlord is flimsy, what to say of bona fide. The tenant has also raised the plea that two brothers Israr Ahmad and Irshad Ahmad were carrying on business in the shop in dispute from the time of their father, Shamsuddin, under the name and style of Firm Shamsuddin Irshad Ahmad and the landlord has deliberately not impleaded Irshad Ahmad who is also carrying on business in the shop in dispute and has inherited the tenancy. The tenant has also raised a plea that apart from two sons of deceased Arjun Prasad the widow of Arjun Prasad and his daughters also inherited the property but have not been impleaded. Therefore, for this reason alone the application is liable to be dismissed. Since Irshad Ahmad has not been impleaded as respondent the application is liable to be dismissed on this ground also. On the question of bona fide need the tenant has stated that the landlord possesses much more accommodation than what is required and in case they want to set up business they have ample accommodation at their disposal. Therefore, the need of the landlord cannot be said to be either bona fide or pressing. It is also stated by the tenant that in case the landlord require the accommodation in dispute they would have not let out a shop 10 years ago. The tenant also denied the case of the landlord for demolition and reconstruction. The tenant's contention is that the landlord has not complied with the provisions of the Act and the Rules of submitting necessary documents which requires support of an application under Section 21(1)(b) of the Act. The landlord has not also complied with the provisions of Rule 17 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972. The shop in dispute, as the tenant says, was occupied on rent by the father of the present tenants who started a cloth business from the shop in dispute which is continuously being carried on and, therefore, the shop has earned a goodwill and in case the tenants are shifted from the shop they will lose the goodwill. The tenants do not have any other shop where they can shift their business and carry on their business. The shop cannot be said to be in a dilapidated condition which requires demolition and reconstruction.

(3.) Before the prescribed authority, after exchange of pleadings and evidence on the record the prescribed authority dealt with the objection raised by the tenant and found that the question that all the heirs of Arjun Prasad have not been impleaded does not in any way affect the maintainability of application under Section 21(1)(a) of the Act as two sons are already there. On the question of brother of petitioner being not impleaded the prescribed authority found from the evidence that the brother of the petitioner-tenant is in service outside India which is clear from the evidence on the record. On the question of building being in dilapidated condition after assessing evidence of both the sides the prescribed authority found that the building is in dilapidated condition which requires demolition and reconstruction. On the question of bona fide requirement the prescribed authority recorded a finding that the landlord requires the accommodation in dispute bona fide as the accommodations which are suggested by the tenant were either not commercial accommodations or were occupied by the tenants. Thus, the prescribed authority found that the need of the landlord is bona fide. On the question of comparative hardship the prescribed authority found that the tenant has a big house on the road side to which the tenant can shift his business. The objection of the tenant is that the building suggested by the landlord is in residential locality whereby the business of the tenant cannot be shifted. The prescribed authority recorded a finding that the residential accommodation of the tenant is situate on 50 feet wide road side. It was, therefore, found by the prescribed authority that it will not affect the tenant in any way if he shifts to the aforesaid accommodation. On the question of loss of goodwill the prescribed authority found that mere shifting of business will not cause loss of goodwill. On the question of building being dilapidated condition the prescribed authority found that on the evidence on the record the building is in dilapidated condition which requires demolition and reconstruction. Thus, the prescribed authority allowed the application filed by the landlord and directed release of accommodation in favour of the landlord.