JUDGMENT Hon’ble Anil Kumar, J.—Heard Sri Anu Pratap Singh, learned counsel for the petitioner and Sri Kaushlendra Tewari, learned counsel for the opposite parties. 2. By means of the present writ petition, the petitioner challenged the order dated dated 31.5.1985 passed by the Appellate Authority/ Additional District Judge, Bahraich in Rent Appeal No. 43 of 1983. 3. The facts, in brief, as stated by learned counsel for the petitioner are that the controversy relates to shop situate at Chowk Bazar Nanpara, Bahraich which is bounded as under : East - Shop Muzaffar Ali West- Shop Ram Kumar alias Puttan Pandey (deceased) which is in possession of his son Babu Lal Pandey. North - road side market South- Aahata of Devi Prasad Vaish. 4. It is submitted by learned counsel for the petitioner that the said shop was under the tanancy of one Sri Abdul Salam at the monthly rent of Rs. 90/-. On 2.3.1982, Lalji/landlord moved an application under Section 21 (1) (a) of the U.P. Act 13 of 1972 for release of shop in question on the ground that same is needed to establish the business which is to be run by him with the help of his grandson, who is unemployed to earn his livelihood. 5. Accordingly a P.A. Case No. 5 of 1982 registered before the Prescribed Authority Bahraich. In the said matter, on 20.11.1982 tenant filed written statement and after exchange of pleadings as well as evidence between the parties, the prescribed authority vide order dated 23.4.1983 allowed the application under Section 21(1) of the U.P. Act No. 13 of 1972 for release of shop in question. 6. Aggrieved by the said order, tenant filed an appeal ( Rent Appeal No. 43 of 1983 ), allowed vide order dated 31.5.1985 passed by appellate authority/ Additional District Judge, Bahraich, hence the present writ petition filed before this Court under Article 226 of the Constitution of India. 7. 6. Aggrieved by the said order, tenant filed an appeal ( Rent Appeal No. 43 of 1983 ), allowed vide order dated 31.5.1985 passed by appellate authority/ Additional District Judge, Bahraich, hence the present writ petition filed before this Court under Article 226 of the Constitution of India. 7. Sri Anu Pratap Singh, learned counsel for the petitioner submits that the impugned appellate order dated 31.5.1985 passed by the appellate authority thereby allowing the appeal filed by the tenant, is totally incorrect and wrong and the findings given by appellate Court that need of land lord is neither genuine nor bona fide in comparison to land lord is totally incorrect and passed on wrong facts as the findings recorded by appellate Court that Sri Atul Kumar has not yet left his studies. So in the circumstances the idea to start a new business by the landlord at this advanced age can be termed as a wishful thinking on his part thus the need of the landlord is not genuine. From the evidence on record, it is clearly established that grandson of the landlord/Lalji left his studies in order to do business alongwith his grandfather to earn livelihood for the said purpose shop in question is needed by landlord to start business with the help his grandson. Further, landlord is a best Judge to choose accommodation in order to do his business and in this regard neither any Authority under the Rent Control Act nor tenant can dictate the term in respect to carry out the business by landlord as such the findings given by the appellate Court on the point in issue is contrary to law liable to be set-aside. 8. Learned counsel for the petitioner also submits that the findings given by the appellate Court while allowing the appeal of the tenant that in the year 1976 a suit for ejectment against the tenant filed in which a compromise taken place between the parties thereby the rent enhanced from Rs. 75/- to Rs. 8. Learned counsel for the petitioner also submits that the findings given by the appellate Court while allowing the appeal of the tenant that in the year 1976 a suit for ejectment against the tenant filed in which a compromise taken place between the parties thereby the rent enhanced from Rs. 75/- to Rs. 90/- per month and the same is paid from the year 1976, cannot be a bar in moving an application under Section 21(1) (a) of the U.P. Act No. 13 of 1972 for release of shop in question, as such the said findings given by the appellate authority is illegal in view of the provisions as provided under Rule 18 (2) of U.P. Urban Buildings ( Regulation of Letting, Rent & Eviction) Rules, 1972 which is quoted as under : “18(2) Where an application of a landlord against a tenant under Section 21 for the release of any building or any specified part thereof or any surplus land appurtenant to such building is rejected on merits and a fresh application on the same ground is made within a period of one year from that decision the prescribed authority shall accept the findings in those proceedings as conclusive.” 9. Accordingly, it is submitted by learned counsel for the petitioner that the impugned order passed by appellate authority is illegal, arbitrary in nature, contrary to law and liable to be set aside and release application moved by landlord be allowed. 10. Sri Kaushlendra Tiwari, learned counsel for the respondents/ tenant submits that this Court under Article 226 of the Constitution of India cannot set aside the findings of fact recorded by the Court below while exercising the power of judicial review. 11. He further submits that during the pendency of the present writ petition, Lalji original landlord died as such now there is no need exists to release the shop in question as such present petition filed by the petitioner liable to be dismissed. 12. I have heard the learned counsel for the parties and gone through the record. 13. Undisputed facts between the parties are that Sri Lalji/ landlord of the shop in question which was under the tenancy of Abdul Salam at the rate of Rs. 12. I have heard the learned counsel for the parties and gone through the record. 13. Undisputed facts between the parties are that Sri Lalji/ landlord of the shop in question which was under the tenancy of Abdul Salam at the rate of Rs. 90/- per month moved release application under Section 21(1) (a) of U.P. Act No. 13 of 1972 in the year 1982 stating therein that shop under the tenancy of Abdul Salam be released in his favour as he wants to start the business from it with support of his grandson Atul Kumar, who is unemployed in order to earn his livelihood, allowed by the prescribed authority vide order dated 23.4.1983 on the ground that the need of landlord is bona fide and genuine in comparison to tenant. Thereafter an appeal filed by the tenant, allowed by the appellate authority vide order dated 31.5.1985 inter alia on two grounds; (a) the need of the landlord is not genuine and bona fide as Sri Atul Kumar/ grandson has not yet left his studies. So in the circumstances the idea to start a new business by the landlord at this advance age can be termed as a wishful thinking on his part (b) Landlord filed a suit for ejectment against the tenant in the year 1976, compromised between the parties by enhancing the rent from 75/- to Rs. 90/- with effect from 17.11.1976, and the tenant is paying Rs. 90/- per month so the application for release under Section 21(1) of U.P. Act No. 13 of 1972 is not maintainable. 14. During the pendency of present writ petition Lalji original landlord as well as original tenant Abdul Salam died and they are substituted by legal heirs. 15. The first and foremost question which is to be adjudicated in the present case as to whether the shop in question is bona fide need of landlord as per the provisions under Section 21(1) of U.P. Act No. 13 of 1972. For the purpose of the same it is necessary to have a glance to the provisions under Section 21(1)(a) of the U.P. Act No. XIII of 1972. For the purpose of the same it is necessary to have a glance to the provisions under Section 21(1)(a) of the U.P. Act No. XIII of 1972. The relevant provision of the same is quoted hereinbelow : Section 21(1)(a) of U.P. Act No. XIII of 1972 “21: Proceedings for release of building under occupation of tenant— (1) The Prescribed Authority may on an application of the landlord in that behalf order the eviction of a tenant form the building under tenancy or any specified part thereof if it is satisfied that any of the following grounds exists, namely- (a) that the building is bona fide required either in in its existing from or after demolition and new construction by the landlord for occupation by himself or any member of his family, or any person for whose benefit it is held by him, either for residential purposes or for purposes of any profession, trade, or calling or where the landlord is the trustee of a public charitable trust, for the objects of the trust;” 16. Point which is to be taken into consideration is what is the meaning of the word “bona fide need”, while adjudicating and deciding, application for release, moved under Section 21(1)(a) of the U.P. Act No. XIII of 1972. 17. The word “bona fide” has been interpreted by his Lordship of the Hon’ble Supreme Court in the case Shiv Sarup Gupta v. Dr. Mahesh Chand Gupta, (1999) 6 SCC 222 : 1999 SCFBRC 330, has held : “The term bona fide or genuinely refers to a state or mind. Requirement is not mere desire. The degree of intensity contemplated by “required bona-fide” is suggestive of legislative intent that a mere desire which is the outcome of whim or fancy is not taken note of by the rent control legislation. A requirement in the absence of felt need which is an outcome of sincere,honest desire, in contradistinction with a mere pretence or pretext to evict a tenant, on the part of the landlord claiming to occupy the premises for himself or for any member of the family would entitle him to seek ejectment of the tenant. Looked at from this angle, any setting of the facts and circumstances protruding the need of the landlord and its bona fides would be capable of successfully withstanding the test of objective determination by the Court. Looked at from this angle, any setting of the facts and circumstances protruding the need of the landlord and its bona fides would be capable of successfully withstanding the test of objective determination by the Court. The judge of facts should place himself in the arm chair of the landlord and then ask the question to himself whether in the given facts substantiated by the landlord the need to occupy the premises can be said to be natural, real, sincere, honest. If the answer be in the positive, the need is bona-fide. The failure on the part of the landlord to substantiate the pleaded need, or, in a given case, positive material brought on record by the tenant enabling the Court drawing an inference that the reality was to the contrary and the landlord was merely attempting at finding out a pretence or pretext for getting rid of the tenant, would be enough to persuade the Court certainly to deny its judicial assistance to the landlord.” 18. This Court in the case of Pramod Kumar v. VI Additional District Judge, Bijnor and others, 2000(1) ARC 185, has defined ‘bona fide need’ on the basis of decisions of the Hon’ble Supreme Court rendered in Muttu Lal v. Radhey Lal, AIR 1974 SC 1596 and Bega Begum v. Abdul Ahad Khan, AIR 1979 SC 272 : 1986 SCFBRC 346, as under : “The word ‘bona fide’ means genuinely and sincerely i.e. in good faith in contradiction to mala fide. The requirement of an accommodation is not bona fide if it is sought for ulterior purpose but once it is established that the landlord requires the accommodation for the purpose which he alleges there is of ulterior motive to evict the tenant that requirement should be bona fide” 19. In the same manner the word “bona fide” has been interpreted in the case of Jagdish Chandra v. District 8 Judge, Kanpur Nagar and others, 2008 (2) ARC 756 and Hariom v. Additional District Judge and others, 2009 (2) ARC 802. 20. Further, the Apex Court in the case of Sarla Ahuja v. United India Insurance Company Ltd., (1996) 5 SCC 353 , held as under : “The rent controller should not proceed on the assumption that the landlord’s requirement is not bona fide. 20. Further, the Apex Court in the case of Sarla Ahuja v. United India Insurance Company Ltd., (1996) 5 SCC 353 , held as under : “The rent controller should not proceed on the assumption that the landlord’s requirement is not bona fide. When the landlord shows a prima facie case a presumption that the requirement of the landlord is bona fide is liable to be drawn. It is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without giving possession of the tenanted premises. While deciding the question of bona fides of the requirement of the landlords, it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted himself.” 21. Accordingly, The word “bonafide need” should receive useful meaning rather struck off and should attach a practical meaning granted by realistic of life. 22. In the present case release application itself clearly established that the same has been moved on the ground that the shop in question is need by the landlord ( Lalji) to start his business to support his grandson Atul Kumar who has left his studies to earn livelihood. The said fact is is clearly established that the need of landlord is genuine and bona fide. 23. In view of the above said facts, interpretation of the word ‘bona fide need’ as given by Apex Court by this Court the need of landlord is more genuine and bona fide as held by the Prescribed Authority. Accordingly a findings in this regard recorded by the appellate authority that the need of tenant is more genuine is totally incorrect, cannot sustain. 24. Further, the prescribed authority after taking into consideration of the facts and circumstances of the case held that need of landlord is more genuine and bona fide in comparison to tenant. However, the said findings reversed by the appellate authority on the ground that Sri Atul Kumar has not yet left his studies. So in the circumstances the idea to start a new business by the landlord at this advanced age can be termed as a wishful thinking on his part thus the need of the landlord is not genuine. However, the said findings reversed by the appellate authority on the ground that Sri Atul Kumar has not yet left his studies. So in the circumstances the idea to start a new business by the landlord at this advanced age can be termed as a wishful thinking on his part thus the need of the landlord is not genuine. The said findings given by the appellate Court is incorrect and wrong itself that the landlord is a best judge and the authority under the rent control Act cannot dictate the landlord as to how and in what manner and in what capacity he should start his business. 25. In the case of Smt. Sarla Ahuja v. United India Insurance Co. Ltd., AIR 1999 SC 103, it has been held as under : “When a landlord asserts that the requires his building for his own occupation the “Rent Controller shall not proceed on the presumption that the requirement is not bonafide. When other conditions of the clause are satisfied and when the landlord shows a prima facts case it is open to the Rent Controller to draw a presumption that the requirement of the landlord is bona fide. It is often said by/Courts that it is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without getting possession of the tenanted premises. While deciding the question of bona fide of the requirement of the landlord it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted himself.” 26. In the case of Prativa Devi (Smt.) v. T.V. Krishnan, 1996 (5) SCC 353 , it was held that the landlord is the best judge of his requirement and Courts have no concern to dictate the landlord as to how and in what manner he should live. The bana fide personal need is a question of fact and should not be normally interfered with.”(See also the case of Gaya Prasad v. Pradeep Shrivastava, AIR 2001 SC 803 : 2001(1) ARC 352). 27. In the case of Rishi Kumar Govil v. Maqsoodan and others, 2007(2) ARC 1, the Hon’ble Apex Court held that it is the choice of the landlord to choose the place for the business which is most suitable for him. He has complete freedom in the matter. 28. 27. In the case of Rishi Kumar Govil v. Maqsoodan and others, 2007(2) ARC 1, the Hon’ble Apex Court held that it is the choice of the landlord to choose the place for the business which is most suitable for him. He has complete freedom in the matter. 28. The said view was further reiterated by the Hon’ble Apex Court in the case of Uday Shankar Upadhyay and others v. Naveen Maheshwari, 2010 SAR (Civil) 69 and in the case of Mohd. Sadiq v. District Judge,Pauri Garhwal and others, 2007(1) ARC 297. So, the argument raised by the learned counsel for the petitioner-landlord in this regard is correct and order passed by appellate Court on the point in issue is liable to be rejected. 29. The next point on which the appellate Court allowed the appeal to the effect that in the year 1976 a suit for ejectment against the tenant filed and the same was compromised by enhancing Rs. 90/- instead of Rs. 75/- and the tenant is paying Rs. 90/- per month with effect from 1976. so an application moved by landlord under Section 21(1) (a) of the U.P. Act 1972 for release of shop is not maintainable as such the said findings given by appellate Court is contrary to the provisions as provided under Rule 18 (2) of the Uttar Pradesh Urban Building ( Regulation of Letting, Rent and Eviction ) Act 1972. 30. Further from the documents on record it also transpired that the tenant has not made any effort to search for an alternate accommodation since the date of moving of release application, the said fact is also not disputed by the learned counsel for the parties so keeping in view the settled proposition of law that if a tenant does not make any effort to search alternative accommodation then his need cannot be considered [ See: Mst. Bega Begum and others v. Abdul Ahmad Khan (dead) by Lrs. and others, 1986 SCFBRC 346: (1979) 1 SCC 273 and Badrinarayan Chunilal Bhutada v. Gvindram Ramgopal Mundata, 2005 (2) ARC 899 and Harish Chand Bhatia v. Smt. Jora Begum, 2008 (2) ARC 27] 31. No other point has been argued or pressed by learned counsel for the parites. 32. For the forgoing reasons, the writ petition filed by the petitioner is allowed. No other point has been argued or pressed by learned counsel for the parites. 32. For the forgoing reasons, the writ petition filed by the petitioner is allowed. The impugned order dated 31.5.1985 passed by the Appellate Authority/ Additional District Judge, Bahraich in Rent Appeal No. 43 of 1983 is set aside and the order dated 23.4.1983 passed by the Prescribed authority/ Munsif Bahraich in P.A. Case No. 5 of 1982 is restored and release application under Section 21(1)(a) of the U.P. Act No. 13 of 1972 is allowed. Six months time is granted to the tenant from today to vacate the shop in question 33. For the aforesaid period which has been granted to the tenant, he is required to pay rent/damages for the use of shop in question on or before 7th of each month failing which the petitioner will be at liberty to take appropriate steps for eviction of shop in dispute. 34. No order as to costs. —————