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2007 DIGILAW 1997 (ALL)

Rajesh Kumar v. Additional District Judge

2007-07-30

RAKESH TIWARI

body2007
JUDGMENT : RAKESH TIWARI, J. 1. Heard learned Counsel for the parties and perused the record. 2. This petition arises out of order dated 29.5.1990, passed by the Additional District Judge, Kannauj reversing the order of the Prescribed Authority, Kannauj dated 26.9.1989 allowing the release application filed by the Petitioners. 3. The Petitioners are the owners and landlords of the shop in dispute situate in Mohalla Ajay Pal Road Pargana and Tehsil Kannauj, district Farrukhabad. The shop in dispute was given in the tenancy of Sri Ram Lal Gupta, Respondent No. 2 (since deceased) by the father of Petitioner Nos. 1 and 2 and husband of Petitioner No. 3 Sri Kailash Shankar Gupta who also died on 31.7.1985. After the death of Sri Kailash Shankar Gupta, Petitioner No. 1 is running on rent a small shop of electrical goods in the name and style of "Kannauj Electric Works" which is alleged to be the only source of their livelihood. 4. It is claimed by the Petitioners that the owner and landlord of the shop in which they are running their business "Kannauj Electric Works" on rent is forcing to vacate the shop, as such they have urgent and bona fide need of their shop in dispute which their father Sri Kailash Shankar Gupta had given on rent to Sri Ram Lal Gupta (since deceased). The said shop after his death is now in the possession of the heirs and legal representatives of the Respondents. It was also claimed by the Petitioners that Petitioner No. 2 is jobless and was forced to stop his education after the death of his father as the income of the family was so less that the family could not afford the expenses of his further education. Though Petitioner No. 1 being elder brother has established his own business for sustenance of the family the need of the shop for his younger brother, i.e., Petitioner No. 2 is bona fide and genuine. 5. It is further claimed by the Petitioners that the shop in dispute always remains closed as the deceased Respondent No. 2 Sri Ram Lal Gupta was not running the shop in dispute. 6. It appears that after notice to quit dated 22.1.1987 was given by the Petitioners to Respondent No. 2, the Petitioners filed the release application u/s 21(1)(a) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. 6. It appears that after notice to quit dated 22.1.1987 was given by the Petitioners to Respondent No. 2, the Petitioners filed the release application u/s 21(1)(a) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. The prescribed authority allowed their application vide order dated 26.4.1989, releasing the shop in dispute in favour of the Petitioners after recording a finding of fact on bona fide need and comparative hardship in their favour. It also held that during this period Respondent No. 2 did not make any efforts to search alternative shop. The prescribed authority further held that the Petitioners are running their business in a rented shop whereas the business of Respondent No. 2 was to sell scent from door to door and for this reason the shop remains closed. 7. Aggrieved by the order dated 26.4.1989 passed by the prescribed authority the Respondent No. 2 filed an appeal which was allowed vide impugned order dated 29.5.1990 on the ground that Petitioner No. 2 is sitting in the shop of his elder brother, hence Petitioner No. 2 does not require the shop in dispute. 8. The contention of the learned Counsel for the Petitioners is that the findings of the lower appellate court are perverse in the teeth of the settled law laid down by the Hon'ble Supreme Court as well as by this Court that every adult member of a family has right to establish his own independent business. He has relied upon Banshidhar vs. IIIrd Additional District Judge, Aligarh 2000 (2) ARC 808 and Dwarika Nath Soni vs. Bhagwan Dass Gupta, (2006) 1 AWC 590 in support of his case wherein this Court has held that every adult member of landlord/landlady has right to settle down in independent business and such need of the landlord cannot be rejected on the ground that the same is not bona fide. 9. The learned Counsel for the Petitioners further relied upon a decision of this Court in Krishna Chandra Gupta vs. Kalyani Devi and Others, (2007) 2 AWC 1527 wherein this Court adverted itself to the question as to whether the bona fide need of the landlord to settle his unemployed son in business can be questioned on the ground that his son was helping his father in his business. The Court answered the question in negative holding that every adult member of a family is entitled to carry his own independent business. 10. From the record it appears that Petitioner No. 1 never admitted that his younger brother is sitting with him in his electrical goods shop and even if that be so the bona fide need of the shop for establishing his younger brother in another shop cannot be said to be unjustified or against the law. 11. A true copy of the release application dated 11.3.1987 registered as P.A. Case No. 3/87 is appended as Annexure S.A. 1 to the supplementary-affidavit. A perusal of the application shows that no such averments have been made therein. The relevant paragraphs in this regard are paragraph Nos. 5 and 6 of the release application wherein it has been stated that Plaintiff No. 2 Suresh Kumar who is younger brother of Plaintiff No. 1 is unemployed. He was minor and was getting education at that time; that after the death of their father Kailash Shankar the family could not afford the expenses of his further education and that now he wants to establish his own business for which need for release of the shop in dispute was very necessary, genuine and bona fide. 12. It is further averred in the application that the Defendant is occupying the shop in dispute only for show and he is not interested in his business as the shop remains closed for number of days altogether and that he is occupying the shop in dispute with ulterior motive as goods relating to his business are not kept by him in the shop in dispute. 13. After considering the judgments of both the courts below I am of the view that the trial court has rightly found the need of the Petitioners to be genuine and bona-fide. The need and comparative hardship of the Petitioners are greater than the Respondents. The lower appellate court has committed manifest error apparent on the face of the record by not considering the fact of bona fide need of the Petitioners and only considering the question of comparative hardship and holding that the comparative hardship of Respondent No. 2 is greater than the Petitioners. 14. For the reasons stated above, the petition is allowed and the impugned judgment and order of the lower appellate court is quashed. 14. For the reasons stated above, the petition is allowed and the impugned judgment and order of the lower appellate court is quashed. No order as to costs.