JUDGMENT
S.U. Khan, J.
1. Heard learned Counsel for the parties.
2. This is landlord’s writ petition arising out of eviction/release proceedings initiated by him against tenants-respondent Nos. 3 to 5 on the ground of bona fide need under Section 21 of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction Act), 1972. Release application was registered as P.A. Case No. 80 of 1989 and was rejected on 23.2.1993 by prescribed authority/8th A.C.J., Meerut. Against the said Judgment and order, landlord-petitioner filed Misc. Appeal No. 90 of 1993. 10th A.D.J., Meerut, through the judgment and order dated 4.2.1994, dismissed the appeal, hence this writ petition.
3. Property in dispute is a shop. It was alleged in the release application that Narendra Nath Verma, respondent No. 3, was the tenant and Prithvipal Verma, respondent No. 4, was his real brother, who was carrying on business from the shop in dispute in the name and style of respondent No. 5 M/s. New Beauty Palace. It was alleged that in case respondent Nos. 4 and 5 were found to be tenants, then eviction order be passed against them also. It was further alleged in the release application that Ravi Gupta, the son of the landlord, could not get any service, hence he started doing contract work by supplying furniture to Government and Semi-Government Departments on small level, and that he wanted to establish his business of making and retail selling furniture and shop in dispute was required therefor. It was also alleged that the dimensions of the shop in dispute were 21×31 feet and it was situate in a market, which was most suitable for furniture business and that towards back portion of the shop in dispute on the eastern side, landlord had sufficient accommodation available for making the furniture and the said place was covered by tin shed and also contained a room to be used as store. It was also alleged by the landlord that Ravi Gupta (his son) was not keeping good health, hence he wanted to switch over his business of supply of furniture on contract basis, as it required lot of physical activity.
4. The trial court found that the son of the landlord was doing the business of supplying furniture in the name and style of West End Engineering Company, and supply was mainly confined to M.E.S. (Military Engineering Service) and from the said business, he was earning good income. Some medical certificates were also filed by the landlord to show the physical condition of his son, particularly of his heart. Landlord had pleaded that for two or three years, his son had not taken any fresh contract. This version was not found to be correct. The prescribed authority found that the need was neither bona fide nor pressing and the main reason for filing release application was that the tenant had refused to enhance the rent of shop in dispute from Rs. 180 to Rs. 335 per month.
5. Meerut is a very important city of Uttar Pradesh and situate near Delhi. Shop in dispute is quite big in area and situate in an important market. Current rent of the shop in dispute must not be less than Rs. 8,000 to Rs. 10,000 per month. In 1980s and early 1990s, it was considered almost indecent for the landlord to entertain any desire of enhancing the rent. The same approach has been shown by the learned prescribed authority in his judgment.
6. It was also stated on behalf of the tenant that another tenant of the same landlord of an adjoining shop had enhanced the rent, hence, no eviction proceedings were initiated against him. If out of two tenants, one starts paying appropriate rent and landlord chooses the other tenant, who is not paying good rent for seeking eviction for bona fide need, then absolutely no fault can be found. This action of the landlord is based on sound economic principle. The tenants had pleaded that they were carrying the business of selling shoes since 1959 and their business was quite good.
7. The appellate court approved the findings of the trial court. The appellate court further held that U.P. Rent Control Act granted special concessions to the tenant in respect of commercial buildings, particularly when the business of the tenant was good and after great labour, he had earned a lot of goodwill. If a tenant is having very good business, then he must be in a position to purchase or, at least, take on good rent another shop. If no such effort is made, then question of hardship has to be decided against the tenant vide B.C. Bhutada v. G.R. Mundada .
8. As far as bona fide need is concerned, no fault can be found if son of the landlord wants to switch over to comparatively settled business. Getting and executing contracts for supply of goods, unless it is of a high level, cannot be said to be a very settled form of business. Volume of business and profit of a contractor is much more fluctuating than the business of retail sale from a permanent place. Retailing business in modern times has become a craze even for biggest companies. Even if it is assumed that son of the landlord is not having any serious heart problem or other ailment, still after a certain age, one wants to settle. Hectic activity, particularly physical, is the prerogative of youth.
9. As far as the aspect of good earning by the son of the landlord is concerned, it cannot adversely affect the bona fide need. Need to extend business even in other cities has been found to be bona fide by the Supreme Court in the authority in Sait Nagjee Pursushotham and Co. Ltd. v. Vimalabai Prabhulal and Ors. . The tenants themselves stated that they were also having very good income from the shop in dispute. It could, therefore, be safely said that it was a matter of survival for none of them, neither landlord nor tenant. Moreover, the experience, gained by the son of the landlord in supplying furniture to different departments, would certainly be a great asset to him in establishing retail shop for furniture.
10. Accordingly, I find that landlord had proved the bona fide need beyond any doubt and balance of hardship also lay in his favour.
11. Normally, when judgments of both the courts below rejecting the release application of the landlord are found erroneous by the writ court, the matter is remanded to the prescribed authority. However, that formula is not to be universally followed. If on the findings recorded by the courts below, need is established, then outright relief by allowing the release application may be granted by the writ court, after reversing the judgments of both the courts below. I have discussed this aspect in detail in the case of Mohd. Arif v. A.D.J., 2005 (2) ARC 793 : 2006 (2) AWC 1075. Para 7 of the said authority is quoted below:
When both the courts below have rejected the release application of the landlord and judgments are found to be erroneous in law in writ court, matter is normally remanded. However, that formula is not to be necessarily valid in every case particularly when the matter is pending for long release application since 1989. The Supreme Court in G.C. Kapoor v. N.K. Bhasin , allowed the release application outrightly which had been rejected by the prescribed authority, lower appellate court as well as High Court. In my opinion it is a fit case where ultimate relief shall be granted to the landlord. Supreme Court has held in R.E.V. Gounder v. V.V.P. Temple and R.C. Kesharwani v. Dwarika Prasad 2002 (2) ARC 298 (SC), that when the matter is pending for long, remand must be avoided. Supreme Court in its authority in Shail v. Manoj Kumar 2004 ACJ 1213, placing reliance upon Surya Dev Rai v. R.C. Rai , has held that in exercise of writ Jurisdiction High Court has the jurisdiction also to pass itself such a decision or direction as the inferior court or Tribunal should have made.
12. Before the prescribed authority, landlord offered an alternative accommodation to the tenant. The offer of the landlord was that on the first floor of the building in which Punjab National Bank was the tenant, the landlord was ready to construct a shop for the tenant-respondent equal to the area of the shop in dispute and cost of construction would be deducted from the rent. The said offer was rejected by the tenant. The said offer was made in 1991 through Annexure-8 dated 15.5.1991. It appears that at present the landlord is not in a position to make construction on the said site. However, tenant had outrightly rejected the said offer. In the supplementary counter-affidavit filed in January, 2007, tenant asserted in para 12 that an adjoining shop was vacated by Baldeo Raj and thereafter roof of the said shop was demolished by the landlord. In the supplementary rejoinder-affidavit in para 8, it was stated that the building was in a dilapidated condition. It has also been stated in the supplementary rejoinder-affidavit that other sons of the landlord have also become major and they require accommodation for business, hence, the said portion is being reconstructed to accommodate the need of the other sons. In the supplementary rejoinder-affidavit, landlord offered that he was ready to construct a shop in the portion vacated by the other tenant Baldeo Raj for the tenant provided that he paid the rent of Rs. 5,000 per month for a shop of 10 to 11 feet. The tenant outrightly rejected the said offer.
13. Accordingly, writ petition is allowed. Both the impugned orders are set aside. Release application of the landlord is allowed.
14. Tenants-respondents are granted six months’ time to vacate provided that:
(1) Within one month from today they file an undertaking before the prescribed authority to the effect that on or before the expiry of aforesaid period of six months they will willingly vacate and handover possession of the property in dispute to the landlord-petitioner.
(2) For this period of six months which has been granted to the tenants to vacate they are required to pay Rs. 12,000 (at the rate of Rs. 2,000 per month) as damages for use and occupation. This amount shall also be deposited within one month before the prescribed authority and shall immediately be paid to the landlord-petitioner.
15. In case of default in compliance of any of these conditions tenants shall be evicted through process of court after one month.
16. It is further directed that in case undertaking is not filed or Rs. 12,000 are not deposited within one month then tenants-respondents shall be liable to pay damages at the rate of Rs. 5,000 per month since after one month till the date of actual vacation.
17. Similarly, if after filing the aforesaid undertaking and depositing Rs. 12,000 the accommodation in dispute is not vacated on the expiry of six months then damages for use and occupation shall be payable at the rate of Rs. 5,000 per month since after six months till actual vacation.