Court No. - 7 Case :- WRIT - A No. - 11688 of 2001 Petitioner :- Radha Behari Tentiwala Respondent :- Radha Raman Attar Petitioner Counsel :- M.K.Nigam,Rahul Sahai Respondent Counsel :- D.K.Tripathi,S.C. Hon'ble Devendra Pratap Singh,J.
Heard learned counsel for the parties.
This petition by the landlord is directed against an appellate order dated
2.3.2001 by which his release application has been dismissed after setting aside
the order of the Prescribed Authority.
The petitioner landlord preferred a release application no. 23 of 1996
under Section 21 (1)(a) of U.P. Act No. 13 of 1972 inter alia with the allegation
that the respondent is the petitioner’s tenant of the disputed shop at Rs.30/- per
month but the petitioner having retired from the Indian Air Force on 30.9.1994 at
the age of 40, therefore required the disputed shop to engage himself and run a
general merchant shop from the disputed premises and also to enhance his
income which was meagre for the needs of his family. It was further stated that
the respondent tenant has another shop no.523A adjoining the disputed shop
and in case the application is allowed, he would not suffer.
The respondent tenant contested the said application on various grounds
including that he was carrying on business from the disputed shop since last
several years and the petitioner had sufficient income from his pension, rent and
share in the Jajmani business and therefore did not require the shop. It was
further asserted that from shop no.523A his son Brij Mohan was running a
medical store independently and it was not available for him.
After exchange of pleadings, the Prescribed Authority vide its order and
judgment dated 7th of April 2000 allowed the release for settling himself and for
augmenting his income which need was found both genuine and bonafide and
the respondent tenant had alternative accommodation available. Aggrieved, the
tenant preferred an appeal which has been allowed by the impugned order dated
2.3.2001 holding that the landlord had sufficient income and the tenant did not
have any alternative accommodation.
Learned counsel for the petitioner has firstly urged that the appellate court
has erred in law in holding that merely because the landlord had sufficient
income from pension and rent, his need was not genuine or bonafide in the teeth
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of the fact that it was specifically mentioned in the release application that it was
required to settle himself. In support of his contention, he has relied upon a
judgment of this court rendered in the case of Moti Lal Sharma vs. Addl.
District Judge, Dehradun & others [1987 (2) ARC 75].
There is no dispute that the petitioner was an Airman in Indian Air Force
and from there he retired in 1994 at the young age of 40 years. From the release
application, specially from paras 4 and 8, it is apparent that the need set up was
for engaging himself in some occupation and augmenting his income. The
appellate court did not consider the need of the landlord with regard to engaging
himself in some vocation, but went on to hold that in view of a family settlement
of 1981, the petitioner is entitled to receive a portion of the earnings of the family
from ‘jajmani’ and the amount would be substantial, therefore, he had no need to
engage himself in any vocation. The reasoning and the approach is not only
erroneous but absurd. Every landlord has a right to engage himself in some
vocation and it is not for the tenant or the court to say that it is not necessary to
engage in any vocation or business of his choice. A young man of 40 years has
every right to usefully engage himself in any business or vocation and merely
because he may have substantial earning from rent etc. would not water down
his genuine need. Assuming that the petitioner had a regular income, that by
itself would not render the bonafide and genuine need inconsequential. Thus, the
argument of the petitioner is bound to be accepted.
It is the case of the tenant himself that his father was a tenant of the
disputed shop since very long, it is also admitted that the tenant had purchased
the adjoining shop no. 523A from the family of the landlord in 1971, but it is said
that the same is being utilised by his son, who admittedly is a member of the
tenant’s family, therefore it cannot be said that the tenant would suffer greater
hardship. In fact in view of the Explanation to the proviso, the tenant cannot
object to the bonafide need of the landlord. Apart from that, there is nothing on
record to show that the tenant made any bonafide effort to search for an
alternative shop though the release was filed in 1996 and even during the
pendency of this petition since 2001. The landlord cannot be forced to sit idle or
look for a tenanted accommodation for fulfilment of his need especially when the
tenant has an alternative shop available. It is evident from the record that the
tenant was about 73 years of age when the application was filed in 1996 and now
he would be more than 90 years, therefore, also the shop would not be required
by him. For all these reasons, even the comparative hardship was in favour of
the landlord as held by the trial court.
However, learned counsel for the respondent tenant has filed a
supplementary affidavit stating that the two sons of the petitioner landlord are
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gainfully employed and the pension of the landlord has also been increased to
Rs.12,000/-.
Be it so, the need, as noted above, was for engaging himself in some
occupation, therefore, increase in pension, which is otherwise disputed would be
immaterial.
For the reasons above, the writ petition succeeds and is allowed and the
appellate order dated 2.3.2001 is quashed and that of the Prescribed Authority is
restored.
In the circumstances of the case, no order as to costs.
Order Date :- 06.8.2010
PKG