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2001 DIGILAW 545 (ALL)

SITARAM PAHARIYA v. DISTRICT JUDGE, JHANSI

2001-05-23

B.K.RATHI

body2001
B. K. RATHI, J. ( 1 ) THE dispute is regarding shop No. 92 Sarrafa Bazar, Jhansi. The petitioner moved an application under Section 21 (1] (a) of U. P. Act No. XIII of 1972 for the release of the said shop against the respondent Nos. 2 to 4, being release application No. 116 of 1992. The application was allowed by the prescribed authority on 4. 8. 1994 by Judgment, Annexure-9 to the petition. Aggrieved by the order of release, the respondent Nos. 2 to 4 preferred Appeal No. 26 of 1994 under Section 22 of the Act which has been allowed by respondent No. 1 on 16. 11. 1995 and application for release has been rejected by Judgment, Annexure-10 to the petition. The landlord, therefore, has filed this petition invoking extraordinary jurisdiction of this Court under Article 226 of the Constitution of India with the request that order, Annexure-10 to the petition be quashed and order, Annexure-9 to the petition of the prescribed authority be restored. ( 2 ) I have heard Sri M. S. Plpersanla and Sri Sanjay Agarwal, learned counsel for the petitioner and Sri K. N. Saxena, learned counsel for the respondents. ( 3 ) THERE is very little dispute regarding the facts. The petitioner-landlord have four sons, namely, rajendra, Rakesh, Shrikant and Sanjeev whose ages when the application was moved were between 32 and 24 years. The petitioner had only one shop in which he is carrying on the business of saraffa. The elder son of the petitioner Sri Rajendra is carrying on the cloth business in Mohalla Chaudharyana, Jhansi, in a rented shop of which the rent is Rs. 400 per month. The second son Shrikant of the petitioner had taken a shop at a rental of Rs. 800 per month and is carrying on the business of readymade garments in that shop. It is alleged by the petitioner that his third and fourth sons Rakesh and Sanjeev have to be settled in the business and they are without any employment ; that they also intend to start the business of sarrafa and for that purpose the disputed shop is required ; that the petitioner has no other shop or the place for the business and, therefore, the need of the petitioner is bona fide. ( 4 ) THE defence of the respondent Nos. ( 4 ) THE defence of the respondent Nos. 2 to 4 is that Rakesh and Sanjeev sons of the petitioner are already doing sarrafa business with the petitioner in the shop which is in the possession of the petitioner ; that they are engaged in the sarrafa business and ft is incorrect that they are without any business and there is need to settle them. ( 5 ) THE only question, therefore, that arise for decision is whether the two sons of the petitioner, namely, Rakesh and Sanjeev are engaged in the business of sarrafa with their father, the present petitioner. It may he pointed out that it is not disputed that the size of the shop is very small. There was one shop which was 11 feet wide and it was divided in two parts. One part of the shop is in dispute in the tenancy of the respondent Nos. 2 to 4. The other part of the shop is in possession of the petitioner and he is carrying on the business of sarrafa in the said shop. Therefore, the width of the said shop is at the most six feet. It, therefore, cannot be accepted that the petitioner as well as his two sons can be engaged in the business in the said shop and it is sufficient for their business. It appears that this small shop cannot be sufficient for the petitioner and his two sons to carry on the business. Apart from this, the contention of the petitioner is that he wants to settle his sons in Independent business. Both the sons cannot be asked to engage themselves in the business with their father and not to start any business independently. The need for setting up the sons in the independent business is, therefore, bona fide and the sons of the landlord cannot be asked to continue the business with their father. ( 6 ) IT is not out of place to mention that two sons of the petitioner are already doing separate business. Therefore, it is natural that the other two sons will also like to establish separate business and both of them cannot be directed to continue in the business with their father. Therefore, the need of the petitioner for the shop in dispute is genuine and bona fide. Therefore, it is natural that the other two sons will also like to establish separate business and both of them cannot be directed to continue in the business with their father. Therefore, the need of the petitioner for the shop in dispute is genuine and bona fide. ( 7 ) IT is also contended by the learned counsel for the respondents that they are old tenants of the disputed shop since 1952 ; that, therefore, according to Rule 16 (2) (a), there is lesser justification for allowing the application for release. I have considered the arguments. This rule does not provide that the shop of old tenant should not be released. It only provides that lesser is the Justification of the release where the period of the tenancy is greater. In this case, there is pressing need of the landlord to settle his two sons in the business. Therefore, in view of this rule, the application for release cannot be rejected. The appellate court erred in recording a contrary finding. ( 8 ) THE next question for consideration is regarding the comparative hardship. The petitioner is carrying on sarrafa business in the adjoining shop. Therefore, it will be convenient for the sons of the petitioner to start sarrafa business in the disputed shop. As against this, the respondents are carrying on the business of sonari (preparation of ornaments) in the disputed shop. The business of sonari can easily be shifted to another place. ( 9 ) IT is also alleged by the petitioner that the respondents have house No. 100 in Gandhinagar tapra which also has shops in which two respondents are already carrying on the business of sonari, Respondent- Mohan Lal Verma is carrying on the business of sonari in the disputed shop. The sonari business can be shifted to that house without much inconvenience. Therefore, the petitioner will suffer greater hardship by the refusal of the release in comparison to the respondent Nos. 2 to 4 in case the shop is released. ( 10 ) ACCORDINGLY, the petition is allowed. The order dated 16. 11. 1995 passed by the respondent no. 1. Annexure-10 to the petition is quashed and that of the prescribed authority dated 4. 8. 1994. Annexure-9 to the petition is restored. However, the respondent Nos. 2 to 4 are further allowed three months time from today to vacate the disputed shop. .