JUDGMENT Hon’ble Rakesh Tiwari, J.—Heard Sri J.P. Pandey, Counsel for the petitioner. 2. On the last occasion, Sri Rahul Chaudhary holding brief of Sri Yashwant Verma, Counsel for the respondents had taken time to prepare the case but today when the case was taken up in the revised list, he expressed his inability to argue the case. 3. This is landlord’s petition. Respondent No. 2 is tenant in the shop situated on the ground floor of the residential building of the petitioner situated in Mohalla Maya Bazar, Reti Road, Gorakhpur. 4. The case of the landlord-petitioner is that the tenant-petitioner has constructed a house known as ‘Sahu Palace’ just in front of the shop in dispute. 5. Petitioner-landlord filed release application registered as P.A. Case No. 74 of 1992 under Section 21(1)(a) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as ‘U.P. Act No. XIII of 1972’) on the grounds of personal bona fide need and default in payment of rent, house tax and water tax. 6. The respondent-tenant contested the release application by filing written statement denying the plaint allegations. 7. The Prescribed Authority after considering the respective cases of the parties, allowed the release application vide order dated 17.4.1996. 8. Aggrieved by the release order, the tenant preferred Rent Control Appeal No. 8 of 1996 before the District Judge, Gorakhpur which was transferred to the Court of VIllth Additional District Judge, Gorakhpur. 9. The respondent No. 2 tenant thereafter filed an amendment application dated 23.8.1996 by which certain amendments were sought in the written statement as the shop in dispute was let out to him without any valid order of allotment by the competent authority. The application was rejected vide order dated 19.9.1996. 10. The appeal of the tenant was thereafter allowed vide impugned judgment dated 7-1-1999 on the ground that the shop in dispute was let out to him without any valid order of allotment. 11. Aggrieved by the order dated 7-1-1999, the petitioner-landlord has come up in this writ petition. 12. The contention of Counsel for the petitioner is that the appellate Court has failed to consider that the tenant has himself admitted that he is tenant of the disputed shop, as such, application under Section 21(1)(a) was maintainable. 11. Aggrieved by the order dated 7-1-1999, the petitioner-landlord has come up in this writ petition. 12. The contention of Counsel for the petitioner is that the appellate Court has failed to consider that the tenant has himself admitted that he is tenant of the disputed shop, as such, application under Section 21(1)(a) was maintainable. He urged that the amendment application for bringing on record the fact that the shop was let out without any valid order of allotment was rejected by the predecessor of the Presiding Officer of the appellate Court was conveniently ignored by the appellate Court, which passed the impugned order. 13. The respondent No. 2 tenant in his counter affidavit has averred that the release application under Section 21(1)(a) of U.P. Act No. XIII of 1972 filed by the landlady was moved with mala fide intention with a view to somehow evict the tenant from the shop in dispute. In fact, the landlady did not have any need of the shop in dispute for the reason that her son is well settled and carrying on his business independently. The husband of the landlady is an old person and the need set up by her is wholly mala fide. It is further averred that the relief sought in S.C.C. suit No. 74 of 1992 was confined only to the extent of eviction of the tenant. The tenant has specifically pleaded that the son of the landlady is not unemployed and that the tenant is carrying on his business from the shop in dispute for a long time and in case he is evicted, he will suffer greater hardship than the landlady. The respondent-tenant has averred that the findings recorded by the Prescribed Authority are perverse and against the evidence on record. The Prescribed Authority mainly swayed away by the fact that the tenant has constructed a shop opposite the shop in dispute whereas the findings recorded by the Prescribed Authority with regard to the bona fide need itself was perverse which is necessary pre-requisite for allowing the release application under Section 21(1) (a) of U.P. Act No. XIIl of 1972. 14. The Prescribed Authority mainly swayed away by the fact that the tenant has constructed a shop opposite the shop in dispute whereas the findings recorded by the Prescribed Authority with regard to the bona fide need itself was perverse which is necessary pre-requisite for allowing the release application under Section 21(1) (a) of U.P. Act No. XIIl of 1972. 14. Perusal of record reveals that the amendment application of the tenant was rejected vide order dated 19.3.1996 holding that as the tenant had admitted that he was the tenant in the disputed premises, the application filed by the landlord under Section 21(1)(a) of U.P. Act No. XIII of 1972 was maintainable. The appeal of the tenant has been allowed on the ground that as the shop in dispute was let out to the tenant without any valid order of allotment, an illegal tenancy was created. 15. It is evident that the Prescribed Authority has dealt with the question of bona fide need in its judgment and recorded a clear finding of fact that it is an uncontroverted fact that the defendant in his objections in paper No. 18-Ga or in any other affidavit has not denied the fact that Sri Rajesh son of the applicant is married and is unemployed though he helps his father in the shop of readymade garments, whose age is 50 years and he is unable to run his shop. The contention of the tenant is denied by the husband of the applicant inter alia that he is doing business of readymade garments in his own shop and is hale and hearty and that his son has no concern with his business who is unemployed. In absence of any evidence to the contrary, the Prescribed Authority believed the affidavit of the father, paper No. 4-Ga that he is running the shop himself and if the son sometimes comes in the shop and sits there as he is unemployed and does some tit-bits for him, it cannot be said that he has settled in the business of his father, hence if the plaintiff has filed an application for release of the shop in dispute, it is bona fide and genuine. The Prescribed Authority also noted the fact that the Counsel for the tenant had clearly admitted that the tenant has built a three storied building ‘Sahu Bhavan’ just across and in front of the shop in dispute and he is owner of the same. The said building ‘Sahu Bhavan’ constructed by the tenant also has several shops and a godown at the ground floor. The Prescribed Authority concluded that the tenant can carry on his business conveniently in the shops constructed by him in his own building. It further concluded that in aforesaid circumstances application filed by him (paper No. 80-Ga) was moved with mala fide intention. The Prescribed Authority concluded that the tenant can carry on his business conveniently in the shops constructed by him in his own building. It further concluded that in aforesaid circumstances application filed by him (paper No. 80-Ga) was moved with mala fide intention. The relevant extract of the order of the Prescribed Authority is as under : Þvc ;g ns[kuk gS fd mDr ÁkFkhZx.k dh t:jr okLrfod vkSj cksukQkbM gS] nksuksa i{kksa }kjk fn;s x;s kiFki=ksa dk dkxt Li"V :i ls mij fy[kk tk pqdk gSA ÁR;sd kiFki= dk /;kuiwoZd voyksdu fd;kA ftlls ;g Li"V gS fd foi{kh us vius }kjk nkf[ky lEiw.kZ vkifRr 18&x vFkok fdlh Hkh kiFki= esa bl rF; dks pqukSrh ugha fn;k gS fd ÁkFkhZuh Jherh pUnzkorh nsoh dk iq= jktsk dqekj fookfgr gS vkSj mldk miuk Loa; dk vyx dksbZ jkstxkj ;k ukSdjh ugha gSA vr% ;g rF; vfookfnr :i ls fl) gS fd ÁkFkhZuh Jherh pUnzkorh nsoh dk iq= jktsk dqekj xqIr fookfgr gS vkSj mldk viuk vyx ls dksbZ jkstxkj ;k ukSdjh ugha gSA foi{kh dh vksj ls ;g Hkh dgk x;k gS fd jktsk ds firk us xksy?kj esa jsMhesaM dh nqdku [kksyh Fkh ysfdu vf/kd mez ds dkj.k vc og ml nqdku ij ugha cSBrs gSa vkSj ml nqdku dks jktsk dqekj gh pykrk gS vkSj og dSeseksa ij nLr[kr djrk gSA bl Ádkj jktsk dqekj dks vc vyx O;olk; dh t:jr ugha gSA bl lca/k esa jktsk dqekj xqIrk ds firk Lokeh Álkn xqIrk us kiFki= 24&x nkf[ky fd;k gS ftlesa mUgksusa crk;k gS fd mudh mez 50 o"kZ gS vkSj o iw.kZr% LoLFk gS vkSj og Loa; viuh nqdku Msªl jsMhesM xksy?kj esa djrs gSaA bl nqdku ls muds iq= jktsk dqekj xqIrk dk dksbZ okLrk ljksdkj ugha gS vkSj mudk iq= jktsk dqekj csjkstxkj gSA foi{kh dks vksj ls ,slk dksbZ fpfdRlk Áek.ki= ;k fooluh; lk{; ugha fn;k x;k gS ftlds vk/kkj ij Loeh Álkn xqIrk ds laca/k esa ;g fu"d"kZ fy;k tk lds fd og kkjhfjd :i ls l{ke gksdj ?kj ij iM+s gSa vkSj nqdku djus ;ksX; ugha jg x;s gSaA vr% Lokeh Álkn xqIrk }kjk nkf[ky kiFki= 24&x ij vfookl djusa dk dksbZ rdZlaxr vk/kkj ugha gSA bl laca/k esa ;g Hkh mYys[kuh; gS fd ;fn fdlh O;fDr dk csjkstxkj rFkk fookfgr iq= viuk Loa; dk jkstxkj u gksus ds dkj.k vius firk ds nqdku esa ;nkdnk cSBs vkSj dSkeseks tkjh dj nsa rks flQZ bl vk/kkj ij ;g ugha dgk tk ldrk gS fd mldk iq= vius Loa; dk O;olk; gks x;k gS vkSj og lsfVy gks x;k gSA ------------------------------------------------------------------------- ------------------------------------------------------------------------- mijksDr ds vk/kkj ij eSa bl fu"d"kZ ij igq¡prk gw¡ fd ÁkFkhZuh Jherh pUnzkorh nsoh dk iq= jktsk dqekj xqIrk fookfgr gS mlds cPps Hkh gS ysfdu og fdlh jkstxkj ;k ukSdjh esa ugha gS bu ifjfLFkfr;ksa esa ;fn ÁkFkhZuh vius iq= ds eqrfdy jkstxkj ds fy, Áuxr nqdku dks fjyht djuk pkgrh gS rks mldh t:jr okLrfod vkSj cksukQkbZM gh ekuh tk;sxhA ------------------------------------------------------------------------- foi{kh dh vksj ls nkSjku cgl vius vf/koDrk usa esjs le{k bl rF; dks Li"Vr% Lohdkj fd;k gS fd foi{kh usa Áuxr nqdku ds lkeusa rhu eaftyk Hkou lkgw iSysl cuok;k gSA foi{kh dh vksj ls ;g rF; fookfnr ugha fd;k x;k gS fd Áuxr nqdku ds Bhd lkeus lM+d ds nwljs rjQ fLFkr feyfd;r gSA bl laca/k esa ÁkFkhZuh dh vksj ls nkf[ky dkxt la0 26&x ls Hkh ;g rF; fl) gSA bl Ádkj ;g fl) gksrk gS fd lkgw iSysl uke dk Hkou gS ftlesa uhps O;kikfjd nqdku fd;k gS fd Áuxr nqdku dh vis{kk lkgw iSysl dk {ks=Qy 4&5 xquk vf/kd cM+k gS ;|fi foi{kh us kiFk&i= 19&x] 32&x Loa; nkf[ky fd;k gS ysfdu blesa bl rF; ls dgha bUdkj ugha fd;k gS fd lkgw iSysl ,d rhu eaftyk Hkou gS ftlds uhps dh eaftyk esa nqdkusa gS rFkk cM+k xksnke Hkh gSA bl rF; dks Hkh pqukSrh ugha fn;k x;k gS fd bl Hkou esa mldk vkSj mlds HkkbZ lqjsUnz dk cjkcj dk LokfeRo gS bl vk/kkj ij ;g Li"V gks tkrk gS fd foi{kh us pw¡fd Loa; dk rhu eaftyk Hkou lkgw iSysl Áuxr nqdku ds Bhd lkeusa fufeZr dj fy;k gS ftlesa uhps nqdkunkjh dk dk;Z gksrk gS fufpr :i ls foi{kh bldk Lokeh gS vkSj og blesa viuk dkjksckj lqfo/kkiwoZd dj ldrk gSA ------------------------------------------------------------------------- -------------------pw¡fd foi{kh usa ÁkFkhZuh dh cgl lquus ds ipkr vius vkifRr ds bl deh dks eglwl fd;k blfy, 80&x ÁkFkZuki= eSykQkbZM mn~ns; ls fn;k x;k Fkk vr% mls U;k;ky; }kjk [kkfjt dj fn;k x;kA blds vfrfjDr orZeku ekeys esa tc ;g rF; fookfnr ugha gS fd Áuxr nqdku ds Bhd lkeusa lM+d ds nwljh rjQ foi{kh usa cgqr cM+k lkgw iSysl uked Hkou cuok;k gS ftlds fupys fgLls esa nqdkunkjh gksrh gS vkSj xksnke Hkh gS ,slh fLFkfr esa vc ;g nyhy vkSj fujFkZd gks tkrh gS fd foi{kh usa oSdfYid LFkku 16. The appellate Court after appraisal of evidence avilable on record and consideration of the respective submissions advanced by the parties observed that Counsel for the appellant drew his attention to the Full Bench decision of this Court in Nootan Kumar v. Ilnd Additional District Judge, Banda, AIR 1994 All 294 wherein the Court distinguished the contractual and statutory tenancy if validity of contract or agreement of tenancy between landlord and tenant under U.P. Act No. XIII of 1972 has not been mentioned. In the statutory tenancy, valid contract has great importance and the only prohibition is that agreement of tenancy between landlord and tenant is meaningless if there is no valid order of allotment by the competant authority. The tenancy will be deemed to be valid only after an order of allotment by the competent authority. In view of aforesaid decision, the appellate Court came to the conclusion that the Court, in the said case, placed implicit reliance on the validity of a valid contract. In the instant case, as the applicant-landlady stated that the tenancy started w.e.f. 16.8.1979 and there was no evidence that any valid order of allotment was passed by the competent authority, in the circumstances that the applicant pleaded release of the accommodation in dispute for establishing her son in business, the same shall be treated sufficient and bona fide. In the instant case, as the applicant-landlady stated that the tenancy started w.e.f. 16.8.1979 and there was no evidence that any valid order of allotment was passed by the competent authority, in the circumstances that the applicant pleaded release of the accommodation in dispute for establishing her son in business, the same shall be treated sufficient and bona fide. The relevant finding is as under : Þblds vfrfjDr vihykFkhZ ds fo}ku vf/koDrk usa iqu% esjk /;ku mijksDr fufpr uwru dqekj Áfr f}rh; vfrfjDr ftyk tt ckank] AIR 1994 All 294 (FB) dh uthj esa m/k`r fl)kar dh vksj esjk /;ku vkÑ"V fd;k tks blh vf/kfu;e ds rgr 1976 ds mijkUr yS.MykMZ o VsusUV ds chp fdjk;snkjh dk dkUVªSDV o ,xzhesaUV dh oS/krk lh/ks ugha nh x;h gS rks bl ckr dks vkSj Li"V djusa ds gh xjt ls ekuuh; U;k;ky; usa dkUVªSdpqoy VsusUlh o LVsP;wVjh VsusUlh dks vyx vyx Ádkj dh VsusUlh esa Hksn bafxr fd;k gS vkSj tks LVSPVwVjh VsusUlh gksrh gS mlesa oS/k DUVªSDV dk cM+k egRo gksrk gS dsoy ;g ÁfrcU/k ,DV ds }kjk yxk;k x;k gS fd lh/ks yS.MykMZ vkSj VsusUV dh lgefr o LosPNk ij VsusUlh dh oS/krk dh ifjf/k esa ugha j[kk x;k gS cfYd tc og ifjlj ftykf/kdkjh ds }kjk vkoafVr gks tkrk gS revisional court ySUMykMZ vkSj VsusUV ds ,xzhesaUV dks oS/k ekuk tkrk gSA eSus mDr uthj dk voyksdu fd;k rks ik;k fd foks"k cy dkUVªSDV dh oS/krk ij gh fn;k x;k gS fookfnr dsl esa tSlk fd Li"V gS fd ;g fdjk;snkjh jsLikUMsUV ÁkFkhZuh ds dFkukuqlkj gh fnukad 16-8-1969 ls ÁkjEHk gqbZ gS vkSj ,slk dksbZ Áek.k ÁkFkhZuh dh vksj ls ugha gS fd ÁkFkhZuh dh vksj ls fdjk;snkj vihykFkhZ ds }kjk ftyk eftLVªsV vkosnu ds mijkUr fookfnr ifjlj esa LFkkfir fd;k x;k gSA ,lh nkk esa Hkys gh fdlh lhek rd jsLikUMsUV dh vksj ls ÁLrqr uthj ds ek/;e ls ;g vk/kkj fd iq= dks jkstxkj esa LFkkfir djusa ds fy, ;fn vk/kkj fy;k x;k gS rks og i;kZIr lnHkkoh vk/kkj ekuk tk;sxkAÞ 17. Even if the contention of the tenant is accepted that there was no valid order of allotment by the competent authority, the result is that the tenancy is illegal and the tenant’s occupation has rightly held to be unauthorized. 18. Even if the contention of the tenant is accepted that there was no valid order of allotment by the competent authority, the result is that the tenancy is illegal and the tenant’s occupation has rightly held to be unauthorized. 18. In Smt Kamla Tripathi v. Smt Kanchan Agrawal and another, 2007 (66) ALR 20, this Court has held that once the tenant acquires alternate accommodation by raising his own building, it is to be deemed to have been available to him in vacant position. He can neither challenge the bona fide need and comparative hardship of the landlord nor he can take advantage of the fact that the landlord owns any accommodation/shop besides the accommodation/shop in dispute in view of Explanation (i) to Section 21(1)(a) of U.P. Act No. XIII of 1972. To the same effect are the decisions of this Court in Smt Sarwati Devi and others v. Bhagwan Singh Rajpur and others, 2007 (66) ALR 58; Smt Savitri Devi and others v. Chandra Dhar Mishra, 2007(66) ALR 72 and Shiv Singh Chak v. Smt Baby Jain, 2007(66) ALR 134. Therefore, in view of the fact that the tenant has built his own house, namely, ‘Sahu Bhavan’, he cannot retain the accommodation in dispute as tenant. 19. The present is not a service matter where a person cannot continue in service after attaining the age of superannuation. The present is case of rent control where age is no bar. 20. Even if a person is employed in a private organization, normally he does business side by side and off and on it is seen that after retirement from Government service, many persons engage themselves in business. 21. In the instant case, the husband of the landlady is said to be 50 years old which is no age and he can do his business. He has filed his own affidavit stating inter alia that he is carrying on his business of ready made garments in Golghar, Gorakhpur. The Court below has wrongly rejected the need of the landlady on the ground that her husband being 50 years of age cannot do business and in his place, her son can sit in the shop of his father and do the business. 22. The Court below has wrongly rejected the need of the landlady on the ground that her husband being 50 years of age cannot do business and in his place, her son can sit in the shop of his father and do the business. 22. Moreover, the tenant having built his own shop just across the road in front of the shop in dispute, the question of his greater hardship does not arise as the son of the landlady, who is unemployed, has certainly greater hardship and bona fide need for running his own business from the shop in dispute. 23. It has been the consistent view of this Court that every adult member of the family of landlord has a right to settle down in independent business and such need cannot be rejected on the ground that the same is not bona fide [See Banshidhar v. Illrd ADJ Aligarh, 2005(2) ARC 808, and Dwarika Nath Soni v. Bhagwan Das Gupta, 2005(2) ARC 739 . In the instant case, both the Courts below have recorded concurrent findings of fact that the need of the landlady is bona fide but the appellate Court has passed the impugned order merely on hyper-technical ground; that the appellate Court ought to have taken into consideration that even if there was no valid order of allotment, the same was disadvantage to the tenant and not the landlady and ought to have concurred with the findings recorded by the trial Court. Thus, the error in the impugned order passed, by the appellate Court is apparent on the face of record. 24. For the reasons stated above, the writ petition succeeds and is allowed. Impugned judgment of the appellate Court dated 7.1.1999, appended as Annexure 6 to the writ petition is quashed. The respondent-tenant is directed to handover peaceful vacant possession of the accommodation in dispute to the landlady within a period of two months from today and to pay entire arrears of rent, if any, within the same period. In case, the tenant fails to deliver peaceful vacant possession of the accommodation in dispute and pay arrears of rent, if any, within the stipulated time, the landlady will have the liberty to take suitable action in accordance with law to evict the tenant by coercive process with the aid of local Police and to recover arrears of rent, if any, as arrears of land revenue. No order as to costs. ———