Rakesh Tiwari, J.@mdashHeard Sri Pramod Kumar Jain, senior counsel assistant by Sri Saurabh Jain, counsel for tenant Petitioners, Sri M.K.
Gupta appearing for the landlord Respondent and perused the record.
2. This petition challengs the validity and correctness of the judgment and order dated 25.10.2010 passed by the Prescribed Authority/Civil Judge
(S.D.), Pilibhit in P.A. case No. 3 of 1999 as well as judgment and order dated 13.1.2011 passed by the appellate authority/Additional District
Judge, Pilibhit dismissing P.A. Appeal No. 26 of 2008, appended as annexure No. 1 and 2 to the writ petition.
3. The impugned orders have been challenged on the ground that while dismissing the appeal, the appellate court has not taken notice of the
judgment in respect of another shop under the tenancy of Sri Satish, against whom similar another release application was filed on same grounds. It
is stated that in the release application filed against Sri Satish, the court had recorded a finding that landlord Respondent is aged about 70 years
and it is not possible for him to carry on trade, as such his need was not bonafide. According to the counsel for Petitioner, this aspect of the matter
has been ignored by both the courts below. It is submitted that not only this, the courts below have also not looked into this aspect that the
landlord Respondent had four shops of same size i.e. 9"" X 18"" and after purchase of the property, first shop was got vacated by the landlord from
Aslam, tenant in that case, and thus the element of bonafide need stood satisfied on vacation of shop by Aslam. It is also submitted that shop under
tenancy of the Petitioner is not adjacent to the shop which was under tenancy of Aslam and there is another shop measuring 9"" X 18"" feet in
between the two shops i.e. the shop under tenancy of the Petitioner and the shop vacated by Aslam.
4. Contention of the counsel for Petitioner is that if the Petitioner''s shop had been adjacent to the shop under tenancy of Aslam, then it could be
said that landlord Respondent wants to enhance the size of the shop, but that was neither the case nor the position at the spot and in fact the
Respondent landlord is not occupying the property after allotment i.e. the shop which was under tenancy of Aslam in view of statement made by
him in the proceedings u/s 21(1)(a) of U.P. Act No. 13 of 1972, and in view thereof, release application filed against the Petitioner was not
maintainable.
5. Per contra, Sri M.K. Gupta appearing for the landlord Respondent, has argued that it was never case of the landlord that he required two
additional shops and would enlarge the area of the shop for establishing his business by demolition of partition wall between the two shops.
According to him, case of the landlord was that he required two shops for the business i.e. for establishing Aata chakki, Dhan kutti machine and
Expeller which cannot be done in one shop measuring 9"" X 18 feet as some additional space would be required for storage of bye products and
working space, hence two shops were required for the purpose.
6. It is vehemently argued by the counsel for Respondent landlord that age can never be a factor to repel contention of bonafide need as the
business is to be done through servants and only investment is to be made by the landlord. In this regard, he has relied upon decision of this Court
rendered in Jai Raj Agarwal v. Bhola Nath Kappor and Ors. 2005 (3) ARC 417.
7. In that case also, the landlord after retirement wanted to do cloth business and also to settle his adopted son in business. In these circumstances,
it was held that even at the age of 76 years, one can supervise the business and the need for the landlord for starting business, was bonafide and
has to be considered.
8. In the instant case also, the landlord has retired from service and as has been held in a catena of decisions, his need to settle himself in business
to augment his income, has to be considered on the premises of bonafide need.
9. Learned Counsel for the Respondent has then relied upon findings of fact recorded by the courts below to the effect that Petitioner No. 7-Ram
Pratap Jaiswal has acquired a shop during pendency of the proceedings and as such even though the prescribed authority in the case of Sri Satish
illegally held need of the landlord to be not bonafide, yet in the present case the tenant Petitioner has to establish his bonafide need for the shop
under his tenancy. He has relied upon the judgment rendered in Shiv Singh Chak v. Smt. Baby Jain 2007 (66) A.L.R. 134, wherein it has been
held that hardships of the tenants ends if any member of his family has acquired or constructed a shop.
10. It is submitted by the counsel for landlord Respondent that earlier the shop in question was under tenancy of father-in-law of Petitioner No. 7-
Ram Pratap Jaiswal and upon his death, the tenancy devolved upon his daughter Sankari Devi (since deceased) wife of Ram Pratap Jaiswal apart
from other heirs. After death of Smt. Sankari Devi, the tenancy has devolved upon her husband Petitioner No. 7-Ram Pratap Jaiswal and
Petitioner No. 8 & 10; that in subsequent development during pendency of the proceedings, Ram Pratap Jaiswal has acquired a shop of his own,
hence he has plead and establish his bonafide need for the shop in question.
11. From the judgment and order passed by the Prescribed Authority which has been confirmed by the appellate court, it is apparent that the
authority has recorded a finding of fact that space of one shop vacated by Aslam, is too small for running the business of Aata chakki, Dhan kutti
machine and Expeller by the landlord. Moreover, there is only one intervening shop in between and in my opinion the business can be established
in two different shops with ample working and storage space.
Findings recorded by the Prescribed authority, are thus:
foi{khx.k dh vksj ls eq[; rdZ ;g fn;k x;k gS fd izkFkhZx.k ds ikl,d vU; nqdku tks fd muds }kjk vlye ls [kkyh djk;h x;h gS] miyC/k gS A bl lac/k
esa izkFkhZx.k dh vksj ls rdZ fn;k x;k fd og tks viuk O;olk; vkVk pDdh] Lisyj] /kku dqV~Vh e''khu dk djuk pkgrs gSa mlds fy, fdjk;snkj vlye ls
[kkyh djk;h x;h nqdku NksVh gS mUgsa vf/kd txg dh vko'';drk gS A vr% og iz''uxr nqdku [kkyh djkuk pkgrs gSa A
mHk; i{kksa esa ls fdlh Hkh i{k }kjk izkFkhZx.k ds ikl [kkyh nqdku dh dksbZ ukirksy vkfn nf''kZr ugha dh x;h gS fdlh voLFkk esa izkFkhZx.k
ds bl rdZ ij fo''okl fd;k tk ldrk gS fd vlye ds }kjk [kkyh dh x;h nqdku NksVh gS rFkk og muds }kjk izLrkfor O;olk; ds fy, mi;qDr ugha gS rFkk
og fcuk iz''uxr nqdku [kkyh djk;s viuk O;olk; izkjEHk ugha dj ldrs gSa A ;g lkekU; tkudkjh dk fo""k; gS fd vkVk pDdh] Lisyj o /kku dqVVh
e''khu vkfn ds dk;Z ds fy, vf/kd cM+h nqdkj dh vko'';drk gksrh gS A bl laca/k esa izkFkhZx.k dh vksj ls fn;s x;s bl rdZ dks Hkh Lohdkj fd;k tk
ldrk gS fd muds }kjk izLrkfor O;olk; esa Hkwlh,oa vU; vU; lkeku dks Hk.Mkfjr djus gsrq mUgsa,d vfrfjDr LFky dh vko'';drk gksxh ftls og iwoZ
esa [kkyh nqdku [kkyh ls iwjk dj ldrs gSa A ;g rF; i=koyh ij fl) ugha gS fd tks vU; nqdku [kkyh djkus ds laca/k esa izkFkZuk & i= izLrqr fd;k x;k
Fkk og fujLr gks pqdk gS A tc fd bl fookfnr nqdku rFkk nwljh vU; nqdku ds laca/k esa tks izkFkZuk i= izLrqr fd;k x;k Fkk mlesa,d gh izdkj ds
dk;Z fd;s tkus dh ;kpuk izkFkhZxk dh vksj ls dh x;h gS tc fd izkFkhZxk dh vksj ls izLrqr,d vU; izkFkZuk & i= fujLr gks pqdk gS rc ;g ekuk tk
ldrk gS fd izkFkhZx.k dh nqdku dh vko'';drk vHkh Hkh fo|eku gS A
foi{khx.k dh vkjs ls,d rdZ ;g fn;k x;k gS fd izkFkhZx.k }kjk /kku dqV~Vh] vkVk pDdh o Lisyj e''khu vkfn ds lEcu?k esa lacaf/kr foHkkxksa ls
vukifRr vkfn izLrqr ugha dh x;h gS] lkFk gh iz''uxr LFkku mijksDr O;kikj gsrq mi;qDr ugha gS] u gh izkFkhZx.k cw<+s O;fDr gSa A vr% mudh
vko'';drk LokHkkfod,oa ln~Hkkoh vko'';drk ugha gS A bl fcUnq ij foi{khx.k dh vksj ls fof/k O;oLFkk jke fd''ku nkl cuke iape vij ftyk tt]
fctukSj,oa vU;,- vkj- lh- 1994 �2� ist & 249 izLrqr dh x;h gS A - - -
izkFkhZx.k dh vksj ls bl ekeys esa,d rdZ ;g fn;k x;k gS fd foi{kh la- 7 @ 1 jke izrki tk;loky }kjk,d nqdku o""kZ 1999 esa 65000 @ & :i;s es �;
dj yh x;h gS vkSj vc mUgsa iz''uxr nqdku dh dksbZ vko'';drk ugha gS A bl laca/k esa izkFkhZx.k dh vksj ls ''kiFk & i= tequk izlkn dkxt la- 29 &
x ds izLrj 4,oa vfrfjDr ''kiFk i= dkxt la- 31 x ds izLrj 4 esa mijksDr rF; vafdr fd;s x;s gSa A lkFk gh lwph dkxt la- 35 x ls dfFkr fo�; i= dh lR;
izfrfyfi izLrqr dh x;h gS ftlesa jke izrki tk;loky foi{kh la- 7 @ 1 ds i{k esa nqdku dk fo�; i= fu""ikfnr gksuk vafdr gS A mijksDr nqdku ds laca/k
esa foi{kh jtuh''k tk;loky }kjk izLrqr dkmUVj ''kiFk & i= ds izLrj 22 esa ;g vafdr fd;k x;k gS fd ujs''k tk;loky }kjk mijksDr nqdku �e dh x;h gS
A bl izdkj ;g rF; i{kdkjksa dks Lohd`r gS fd,d vU; nqdku foi{kh la- 7 @ 1 rk 7 @ 3 esa ls fdlh ds }kjk �; dh x;h gS A bl laca/k esa ;g Li""V gS
fd pkgs iz''uxr nqdku foi{kh la- 7 @ 3 ds i{k esa �; gksuk vafdr fd;k x;k gS A bl laca/k esa ;g Li""V gS fd pkgs iz''uxr nqdku foi{kh la- 7 @ 3
}kjk �; dh x;h gS vFkok foi{kh la- 7 @ 2 }kjk ;g fl) gS fd foi{kh la- 7 @ 1 rk 7 @ 3 ds ikl,d vU; nqdku miyC/k gS,slh voLFkk esa vU; nqdku
miyC/k gksus ij izkFkhZx.u dh okLrfod,oa ln~Hkkoh vko'';drk Lo;a gh fl) ekuh tk;sxh A bl laca/k esa izkFkhZx.k dh vksj ls izLrqr fuEu fof/k
O;oLFkkvksa esa fn;s x;s er mYys[kuh; gSa % &
ekuuh; mPpre U;k;ky; }kjk jkds''k dqekj tks''kh cuke ujsUnz dqekj,oa vU; 2008 �70�,-,y- vkj- ist & 564 � lqizhe dksVZ � esa ;g er
izfrikfnr fd;k x;k gS fd fdjk;snkj ds ikl vU; oSdfYid LFkku miyC/k gksus ij fdjk;snkj dks fdjk;snkjh okyh lEifRr esa dCtk cuk;s j[kus dk dksbZ
vf/kdkjh ugha gS A
fof/k O;oLFkk f''ko flag pSd cuke Jherh csch tSus 2007 �66�,-,y- vkj- ist & 134 esa ekuuh; mPp U;k;ky;] bykgkckn }kjk ;g er izfrikfnr fd;k
x;k gS fd fdjk;snkj ds ifjokj ds fdlh lnL; }kjk dksbZ vU; nqdku vkfn izkIr dj fy;s tkus ij fdjk;snkjh dh vko'';drk lekIr gks tkrh gS A
blh izdkj fof/k O;oLFkk izohu dqekj cuke czt Hkw""k.k ''kkeZ,oa vU; 2007 �67�,-,y- vkj- ist 549 esa ekuuh; mPp U;k;ky; bykgkckn }kjk
;g er izfrikfnr fd;k x;k gS fd fdjk;snkjh okyh lEifRr ij dCtk cuk;s j[kus dh vuqefr ugha nh tk ldrh gS A fdjk;snkj mijksDr voLFkk esa Hkou Lokeh
dh ln~Hkkoh vko'';drk dh pSydsUt djus gsrq leFkZ ugha gS A
i=koyh ij ;g rF; fl) gS fd jke izrki tk;loky foi{kh la- 7 @ 1 }kjk o""kZ 1999 esa,d vU; nqdku �; dj yh x;h gSa rkk iz''uxr fd;k tkuk foi{khx.k la- 7
@ 1 o 7 @ 3 }kjk gh fctyh ds lkeku dh nqdku fd;k tkuk foi{khx.k }kjk ''kiFk i= dkxt la- 32 x ds izLrj 16 esa vafdr fd;k x;k gS vkSj vc jke izrki
tk;loky foi{kh la 7 @ 1 ds ikl,d vU; nqdku miyC/k gksus ij mijksDr fof/k O;oLFkkvksa esa fn;s x;s er bl ekeys esa iw.kZ :i ls ykxw gksrs gSa
rFkk mijksDr rF; fl) gks tkus ij Hkou Lokeh dh okLrfod,oa lnHkkoh vko'';drk ij vf/kd foLrku ls fopkj fd;s tkus dh vko'';drk ugha gS A
12. In so far as the release application filed against Sri Satish, another tenant in one of the four shops is concerned, suffice it to say that Satish had
not purchased or acquired any vacant shop during pendency of the proceedings nor he had any other alternative shop, as such his case is different.
In so far as the question of age is concerned, in view of law laid down by the Court in the case of Jai Raj Agarwal (supra), no further comment is
required by the court in that regard.
13. Thus, from the perusal of the judgment it is apparent that landlord has a right to establish his business and his age would not be a bar in
considering his bonafide need particularly when the tenant has acquired a shop of his own. In such circumstances, even the tenant has to establish
his bonafide need for retaining the shop. This has neither been pleaded nor established by the tenant in the instant case. A tenant cannot suggest his
landlord what business to do and whether the space required by him shall be sufficient or not. Once Ram Pratap Jaiswal ( Petitioner No. 7) who
himself has filed affidavit in the writ petition as tenant, has acquired a shop of his own in backdrop of the case that he and his son both had become
tenant on the death of Smt. Sankari Devi, who inherited tenancy of her father, he cannot claim that the shop under his tenancy cannot be released
because his son is in occupation of the said shop.
14. For all the reasons stated above, there appears to be no illegality or infirmity in the impugned orders. The petition has no force and is
accordingly dismissed. No order as to costs.