S.U. Khan, J.@mdashHeard Sri V.C. Mishra, learned Senfor Counsel assisted by Sri Vivek Mishra, learned Counsel for the petitionerstenants and Sri Manoj Mishra learned Counsel for the respondent, who appeared at the admission stage by filing his vakalatnama.
2. This is tenants writ petition arising out of eviction/release proceedings initiated by landlordrespondent on the ground of bona fide need under section 21 of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 in the form of P.A. Case No. 61 of 2002. Prescribed Authority/J.S.C.C., Jhansi allowed the release application through judgment and order dated 22.5.2007. Against the said judgment and order, one of the tenants, i.e., Smt. Neeta Tandon, petitioner No. 6 filed R.C. Appeal No. 29 of 2007. Other tenants were added as proforma respondents. Another appeal was filed being R.C. Appeal No. 29 of 2007 by another tenant Om Prakash Kapoor petitioner No. 2. Third appeal was filed by tenants Smt. Brij Rani and Smt. Lata, petitioner Nos. 1 and 5. All the appeals were directed against the same judgment passed by the Prescribed authority. Appeals were consolidated, heard together and dismissed by common judgment dated 15.7.2008 given by A.DJ./Special Judge S.C. and S.T. Act, Jhansi, hence this writ petition.
3. Property in dispute is a shop bearing No. 59 and is situate at Pasrath Jhansi.
4. Initially late Sri Brij Sunder Kapoor was the tenant in the shop in dispute. Landlordrespondent purchased the shop in dispute through registered sale deed dated 27.9.1999. According to the allegations in the release application, Om Prakash petitioner No. 2 was the tenant in the shop in dispute & Rs. 500/ per month and opposite parties No. 2 to 8, being mother, sisters and brotherinlaw of a deceased sister of Om Prakash were being impleaded in order to avoid any complication, however they had no concern with the tenancy. It was pleaded that landlord required the shop in dispute for the business of selling paint and hardwares. It was further pleaded that initially landlord was having a manufacturing unit for manufacturing paints but that was closed due to objections of pollution control authorities and that since then, he was assisting his father in his business, which was being carried out from tenanted shop, just adjacent to the shop in dispute. It was further alleged that Om Prakash had another shop bearing No. 613C situate near Shiv Mandir Sadar Bazar, Jhansi. It was also alleged that Om Prakash was also doing other businesses in other cities. Before filing the release application, notice was also sent by the landlord on 17.11.1999, which was served upon Om Prakash on 18.11.1999.
5. Om Prakash and his mother filed objections stating therein that landlord was assisting his father in his business of selling medicines and his father had become quite old, hence it was virtually landlordrespondent who was looking after the said business, which was his family business. Sisters and brotherinlaw of Om Prakash also filed similar objections against release application.
6. Both the Courts below held that the need of the landlord was bona fide. I fully agree with the said finding. Tenants could not point out that landlord was having any other owned shop. Even if the allegation of the tenants that landlord was virtually running business from the shop in which his father was tenant, is taken to be correct still it will not make any difference. A tenanted shop with the landlord cannot be taken into consideration while considering his bonafide need vide C.K. Devi v. Ghanshyam Dos. AIR 2000 SC 656=2000 SCFBRC 5
7. Moreover, Supreme Court in Sushila v. IInd Additional District Judge, Banda, 2003 (52) ALR 160 (SC)=2003 (9) AIC 156 followed in Rishi Kumar Govil v. Maqsoodan and others 2007 (67) ALR 774 (SC)=2007 (53) AIC 30 has held that every landlord and every adult member of landlord''s family is entitled to do independent, separate business and he cannot be compelled to participate in the family business. In the shop adjoining to the shop in dispute, father of the landlord is tenant and is doing business of selling medicines. Landlord cannot be compelled to participate in the said business.
8. Tenants also pleaded that landlord could do business from his residential house. Courts below rightly held that no landlord can be compelled to do business from his residential house.
9. As far as comparative hardship is concerned, both the Courts below held that Om Prakash not deny that he was having shop No. 613C, Sadar Bazar, Jhansi and that he was also doing other business from other cities or was partner in some businesses in other cities. Courts below also found that Om Prakash was doing business of selling and purchasing real estate and his sons had also purchased some buildings. Om Prakash admitted that he was engaged in other businesses also, however he asserted that those businesses were of temporary nature and he was sleeping partner therein. Courts below also found that in the other shop bearing No. 613C, Om Prakash had kept one Naresh Kumar Gupta as tenant. Om Prakash also admitted that some property was purchased by his sons behind Jhansi Central Hotel, Civil Lines, however he asserted that it was in the form of Khandahar. In any case, tenants did not show that they made any effort to search alternative accommodation. Accordingly, in my opinion, both the Courts below rightly held that balance of hardship lay against fee tenant and in favour of the landlord.
10. Accordingly, I do not find least error in the impugned judgments and orders. Writ petition is therefore dismissed.
11. Tenantspetitioners are granted six months time to vacate provided that :
1. Within one month from today petitionerstenants 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 landlordrespondent.
2. For this period of six months, which has been granted to the tenantspetitioners to vacate, they are required to pay Rs. 9,000/ (at the rate of Rs. 1,500/ per month) as rent/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 landlordrespondent.
12. In case of default in compliance of any of these conditions tenantpetitioner shall be evicted through process of Court after one month and they shall also be liable to pay damages at the rate of Rs. 2,000/ per month since after one month till the date of actual eviction.
13. Similarly, if after filing the aforesaid undertaking and depositing Rs. 9,000/ 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. 2.000/per month since after six months till actual eviction. It is needless to add that this direction is in addition to the right of the landlord to file contempt petition for violation of undertaking and execution application under section 23 of the Act.
Writ Petition Dismissed
