JUDGMENT
Anjani Kumar, J.
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.
4. Aggrieved by the order dated 15th January, 2002, passed by the prescribed authority, the tenant-petitioner preferred an appeal under Section 22 of ‘the Act’ before the appellate authority. During the pendency of the appeal before the appellate authority, the tenant-petitioner filed an application for inspection of the shop in dispute. This application has been rejected by the appellate authority on the ground that the trial court has already rejected the same as the application has no merit. Against the order of rejection of the application for inspection by the appellate authority, the petitioner instead of filing revision, approached this Court by means of Civil Misc. Writ Petition No. 38814 of 2002, which was allowed by this Court on 17th February, 2003 and this Court directed the appellate authority to issue the Commission for inspection and get the shop inspected. Pursuant to the direction issued by this Court, the appellate authority appointed Commissioner and directed for inspection of the shop, who submitted a report. According to the petitioner’s case, the Commission report clearly demonstrates that the respondent-landlord has in fact constructed the shops in the market, which can satisfy the alleged need of the landlord and therefore the release application is liable to be rejected on this ground alone. The Commissioner, who inspected the shop in dispute, submitted his report that no doubt shops/rooms have been constructed, but it has no roof. It has also been found that the younger son of the landlord is carrying on the vegetable oil business from his residential building in dispute. The appellate authority therefore considering the materials on record have dismissed the appeal vide order dated 18th October, 2004, filed by the tenant and affirmed the findings arrived at by the prescribed authority.
5. Before this Court also learned Counsel for the tenant-petitioner submitted that the view taken by the prescribed authority and affirmed by the appellate authority on the question of bona fide requirement of the landlord suffers from the manifest error of law and so far as the comparative hardship is concerned, the courts below have found that the landlord had built up three shops/rooms, therefore the authorities below have erred in law in not rejecting the release application filed by the landlord.
6. I have gone through the findings arrived at by the prescribed authority and that of the appellate authority and the order passed by the courts below, which are based on the materials and evidence on record and the law laid down by this Court, I do not find any error, much less error apparent on the face of record in the findings arrived at by the prescribed authority and affirmed by the appellate authority. The prescribed authority as well as the appellate authority has rejected the argument of the tenant that the present application is barred by the provision of the Rules, as the same has been filed within one year of the first application. With reasons the authorities decided the first application filed in the year 1986, as a result thereof, the tenant-petitioner has to vacate the ground floor shop. Both the authorities have given categorical findings that the earlier release application was filed for the bona fide requirement of the landlord as well as his elder son, whereas the present application has been filed for the settlement of the younger son of the landlord. The prescribed authority as well as the appellate authority has relied upon the law laid down by this Court that every adult member of the family has a right to settle down in an independent business and in case the application filed by the landlord for settling down any member of his family, the need cannot be rejected on the ground that the same is not bona fide. On the question of inspection report, the appellate authority has held with regard to some photographs, though the same were not on record before the court below that the shop, which is referred to be an alternative shops by the tenant to be utilized by the landlord, firstly not situated in the market and secondly the same are still incomplete, as has been found by the Commissioner himself that there is no roof over these shops/rooms.
7. In this view of the matter, all the points raised by learned Counsel for the petitioner-tenant before the appellate authority having been dealt with in accordance with the law laid down by this Court as well as by the Apex Court, therefore I do not find any ground for interference by this Court in exercise of Jurisdiction under Article 226 of the Constitution of India.
8. In the result, the writ petition has no force and is accordingly dismissed. The interim order, if any, stands vacated. However, there will be no order as to costs.
Dated :
Rks.
9. After the judgment is pronounced, learned Counsel for the petitioner has submitted that since he is carrying on business from the shop in dispute, therefore, he may be granted some reasonable time to vacate the same.
10. Considering the facts and circumstances of the case, in the interest of justice I direct that the petitioner shall not be evicted from the shop in dispute pursuant to the impugned order for a period of one year from today, provided :
(1) petitioner furnishes an undertaking before the prescribed authority within one month from today that he will hand over peaceful vacant possession to the landlord on or before 15.8.2006 ; and
(2) petitioner pays to the landlord or deposits the entire arrears of rent/damages, if not already – deposited before the prescribed authority, at the rate of rent till date within one month from today and continues to pay or deposits the same by first week of every succeeding month so long he remains in possession or till 15.8.2006 whichever is earlier. The landlord will be entitled to withdraw the amount so deposited.
11. In the event of default of any of the conditions referred to above, it will be open to the respondent-landlord to get the decree executed.
