Sibghat Ullah Khan, J. Heard learned counsel for the parties. This is tenants' writ petition arising out release proceedings initiated by landlords respondents against them on the ground of bona fide need under Section 21 of U.P. Urban Buildings ( Regulation of Letting, Rent and Eviction) Act ( U.P. Act No.13 of 1972) in the form of P.A. Case No.7 of 2007, Rajendra Kumar and others Vs. Shivram and others. Property in dispute is a shop bearing No.76/97 situate at Kotwali Road, Mathura. Prescribed Authority/Civil Judge ( J.D.), Mathura through order dated 16.08.2010 allowed the release application and directed the tenant to vacate the shop in dispute within one month. Against the said order, tenants petitioners filed P.A. Appeal No.13 of 2010. A.D.J., Court No.6, Mathura dismissed the appeal on 26.09.2012, hence this writ petition. Both the courts below found the need of the landlords to be genuine. Question of hardship was also decided in favour of the landlords. In this writ petition efforts were made by me for exchange of accommodation. Orders dated 18.12.2012 and 20.12.2012 ( on the writ petition) are quoted below: "18.12.2012:- After hearing learned counsel for the tenants petitioners and Shri P.K.Mishra, learned counsel for the landlord-respondent who has appeared through caveat the court is tentatively of the opinion that it is a fit case for exchange of accommodations. The main argument of learned counsel for tenant-petitioners is that in para-21 of the writ petition some shops were pointed out to be available to the landlord in vacant state which aspect was not discussed by the Prescribed authority and lower appellate court only mentioned that the said accommodation was used in the past as a godown for a firm of the landlord which had closed. Learned counsel for the landlord respondent after consulting his client categorically states that he is ready to give one such accommodation ( godown or shop) to the tenant in exchange of the shop in dispute. Smt. Ram Goel, learned counsel for the petitioners in principle agrees with it however she wants time to consult her client. Put up for further orders on 20.12.2012. On 20.12.2012 learned counsel for both the parties shall file a rough sketch map of the accommodations pointed out in para-21 of the written statement. 20.12.2012:- Learned counsel for the petitioners has filed supplementary affidavit of petitioner No.1.
Put up for further orders on 20.12.2012. On 20.12.2012 learned counsel for both the parties shall file a rough sketch map of the accommodations pointed out in para-21 of the written statement. 20.12.2012:- Learned counsel for the petitioners has filed supplementary affidavit of petitioner No.1. Learned counsel for both the parties categorically state that their clients are ready for exchange of the accommodations as indicated in the order dated 18.12.2012. As Annexure-SA-1 to the supplementary affidavit filed today by learned counsel for the petitioners, sketch map of the shop in dispute and other adjoining properties of landlords respondents has been filed. It bears No.14-ka/2. Learned counsel for petitioners states that it is part of the record of the prescribed authority and the number was allotted there. A rough sketch map has filed by learned counsel for the landlords respondents just now. A portion is shown by letters 'store/godown Firm Motilal'. The area of the four shops in the map No.14-ka/2 and the area of the portion shown by letters 'store/godown Firm Motilal' in the map filed by learned counsel for landlords respondents appears to be almost same. The dispute as to whether there are four shops or not is extremely trivial and wholly irrelevant for the purposes of exchange. Learned counsel for landlords respondents has agreed to give a shop of as much area as of the shop in dispute which is stated to be 240 square feet ( 20 feet by 12 feet) according to the learned counsel for both the parties. Learned counsel for respondents states that on any side either towards north or towards south in the portion shown by letters 'store/godown Firm Motilal', tenants petitioners may choose a shop of about 240 square feet area. Accordingly, it is directed that the Presiding Officer of the court of prescribed authority either by himself or if it is not feasible, then through some advocate commissioner shall prepare a sketch map in the presence of petitioners as well as respondents and the portion which is indicated by the tenant in the above portion of 'store/godown Firm Motilal' shall be demarcated on the map. If the demarcation is to be done by some advocate then he shall be paid Rs.3000/- as fees. Both the parties shall deposit the fees in equal share.
If the demarcation is to be done by some advocate then he shall be paid Rs.3000/- as fees. Both the parties shall deposit the fees in equal share. Both the parties are directed to appear before the prescribed authority on 22.12.2012 or 24.12.2012 and file certified copy of this order as well as photostat copy of the map annexed along with the supplementary affidavit filed today and the map which has been supplied by learned counsel for the landlords respondents today. However, if due to any reason parties can not appear before the Prescribed Authority either on 22.12.2012 or on 24.12.2012, then they may appear on 02.01.2013. The exercise may be completed by the Presiding Officer of prescribed authority or the advocate commissioner within two weeks and report shall be sent to this court immediately. A copy of the report may be given to both the parties also. List for further orders on 24.01.2013. Until 24.01.2013 no dispossession shall take place. Petitioners are also strictly restrained from causing any damage to the shop in dispute." However, the efforts failed and parties could not agree to the exchange. Pursuant to the orders passed in this writ petition, Prescribed Authority appointed the Commissioner, who gave the report on 17.01.2013 along with the map, which was filed on 24.01.2013 along with affidavit of compliance on behalf of respondent No.5. Initially Sri Balkishan father of petitioners No.1 & 2 and husband of petitioner No.3 was the tenant of the shop in dispute. After his death, the petitioners inherited the tenancy. Rate of rent is Rs.10.15/- per month. Landlords pleaded that landlords applicants No.1 to 4 constituted a firm by the name of Ratanlal Motilal and were carrying on business in an adjoining shop and the shop in dispute was required for applicant landlord No.5, Kailash Chand, who was not doing any business and was also not employed any where, that Kailash Chand had a son by the name of Abhishek, that he was also unemployed and had failed in Class-X, hence the shop in dispute was required by landlord respondent No.5 for doing business along with his son Abhishek. As far as question of bona fide need is concerned, there is absolutely no fault in the impugned orders. Tenants could not point out that Kailash Chand was doing any independent business.
As far as question of bona fide need is concerned, there is absolutely no fault in the impugned orders. Tenants could not point out that Kailash Chand was doing any independent business. Supreme Court has held that every adult member of a family is entitled to do separate business vide Shushila Vs. A.D.J., AIR 2003 SC 780 . The main argument raised before the courts below as well as repeated before this court was regarding availability of a commercial accommodation to the landlords, which is adjacent to the shop in dispute. Landlords had pleaded that the same was a go-down and in any case landlords had offered one portion of the godown to the tenants as alternative accommodation pursuant to the order earlier passed in this writ petition. Commissioner submitted the report along with the map. The tenants outrightly refused to accept the portion offered by the landlords and expressed their desire for a big portion and a passage, which was not acceptable to the landlords. The dimensions of the shop in dispute have been shown to be 21 feet/12 feet. It is situate on the main Kotwali Road. Towards south of the shop in dispute, there is an accommodation shown to be Dal Mill and towards further south, the godown is shown in the Commissioner's map. Even if some less advantageous accommodation is available to the landlord, his release application cannot be rejected for getting vacated a shop situate on the road. In this regard, reference may be made to Akkanissery Govindan Nambiar v. Kariyath Raghavan, AIR 1998 SC 3146 & Chandrika Prasad ( D) Thr. Lrs. and Anr. v. Umesh Kumar Verma and Ors. AIR 2002 SC 108 . Both the courts below have recorded detailed findings on both the points after taking into consideration the entire material on record. I do not find least error in the impugned orders. Writ Petition is dismissed. Tenants petitioners are granted six months time to vacate on the following conditions. 1. For this period of six months, which has been granted to the tenants-petitioners to vacate, they are required to pay Rs.9,000/-( at the rate of Rs.1500/- per month) as rent/damages for use and occupation. This amount shall be deposited within two months before the Prescribed Authority, Mathura and shall immediately be paid to the landlords respondents. 2.
1. For this period of six months, which has been granted to the tenants-petitioners to vacate, they are required to pay Rs.9,000/-( at the rate of Rs.1500/- per month) as rent/damages for use and occupation. This amount shall be deposited within two months before the Prescribed Authority, Mathura and shall immediately be paid to the landlords respondents. 2. Within two months from today tenants-petitioners shall file an undertaking before the Prescribed Authority, Mathura to the effect that within six months from the date of this judgment, they will willingly vacate and handover possession of the property in dispute to the landlords respondents. 3. If within two months undertaking is not filed and amount of Rs.9,000/- is not deposited then from today till actual eviction tenants shall be liable to pay Rs.3000/- per month as rent/damages for use and occupation. 4. Similarly if after filing undertaking and depositing the aforesaid amount of Rs.9,000/- property in dispute is not vacated within six months then since after six months till actual vacation tenants petitioners shall be liable to pay rent/damages @ Rs.3000/- per month. It is needless to add that this direction of payment of Rs.3000/- per month is in addition to the right of the landlords to file contempt petition and to get the accommodation in dispute vacated through execution.