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2013 DIGILAW 2969 (ALL)

PRAHLAD KUMAR SAHU v. SHIV PRASAD

2013-12-09

RAN VIJAI SINGH

body2013
JUDGMENT Hon’ble Ran Vijai Singh, J.—Heard Sri Ashish Gupta, learned counsel for the petitioner and learned counsel for the respondents. Counter and rejoinder-affidavits have been exchanged and the writ petition is taken up for final disposal with the consent of learned counsel for the parties. 2. By means of this writ petition, the petitioner has prayed for issuing a writ of certiorari quashing the judgments and order dated 18.3.2009 passed by Additional District Judge, Court No. 1, Jhansi in Rent Control Appeal No. 3 of 2006 (Shiv Prasad and another v. Prahlad Kumar Sahu and others) by which appeal filed by respondents Nos. 1 and 2 has been allowed and order dated 6.2.2006 passed by the learned Prescribed Authority/Judge Small Causes Court in P.A.Case No. 51 of 2004 has been set aside. 3. The facts giving rise to this case are that the present petitioner (landlord) has filed an application under Section 21 (1) (a) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 seeking release of the shop in question for the bona fide need of his younger son Sri Pankaj Sahu on the ground that he is major and unemployed and wants to start his independent business. The release application was contested by the respondents on the ground that Sri Pankaj Sahu is having income by plying three seaters and the ladies of his house are also engaged in manufacturing of papper and are earning huge money from it, therefore the need is not bona fide and the application for release deserves to be rejected. 4. In support of the release applicaiton, Sri Pankaj Sahu has filed an affidavit No. 18Ka and other affidavits 19Ka, 20Ka and 21 ka. 5. Sri Shiv Prasad (the respondent No. 1) has also filed an affidavit 33ka in rebuttal stating therein that his father was original tenant in the shop in dispute and after his death, the respondents are running tailoring shop. It has also been stated that the needs set up by landlord is not genuine as there is sufficient income of the family. The prescribed authority has framed three issues : (i) Whether there is a relation-ship of tenant and landlord in between the applicant and the opposite party. (ii) Whether the need of the landlord is bona fide and genuine. (iii) In case, the release application is allowed whose hardship shall be greater. 6. The prescribed authority has framed three issues : (i) Whether there is a relation-ship of tenant and landlord in between the applicant and the opposite party. (ii) Whether the need of the landlord is bona fide and genuine. (iii) In case, the release application is allowed whose hardship shall be greater. 6. The prescribed authority has held that the need of the landlord is bona fide as his one major son, Sri Pankaj Sahu is jobless and is entitled to establish his independent business. So far as the comparative hardship is concerned, the prescribed authority has recorded that since during the pendency of release application, no effort has been made by the tenant to search out alternative accommodation for shifting his business, therefore the comparative hardship of the landlord would be greater than the tenant. After recording these findings, the learned prescribed authority has allowed the release application vide judgment and order dated 6.2.2006 with the direction to the landlord to pay the rent of two years to the tenant within 15 days, with the further direction to the tenant to vacate the accommodation in dispute within a period of one month and in the event of failure of handing over the possession, the landlord was made entitled to take possession through Court. 7. Aggrieved by the order of the prescribed authority, the respondent tenant has filed appeal, which has been allowed by the appellate Court holding that the need of the son of the landlord is not bona fide as it cannot be believed that a man of thirty years can be unemployed. Further there is sufficient income of family, which is being earned through plying of three seaters and selling of papper by the house ladies. 8. After going through the impugned judgment passed by the appellate authority, I find that the appellate authority has erred in setting aside the finding recorded by the learned prescribed authority regarding bona fide need of the landlord taking very hypothetical view without there being any concrete material to observe that a man of thirty years cannot be believed to be unemployed, whereas the specific case of the landlord was that his son is major and is unemployed and wants to start his independent business. The appellate Court has also erred in taking into account the meagre income coming from preparation and selling of papper by the house ladies as well as the income of the son of the landlord. The plying of three seaters by the son cannot be said to be an independent business of the son of the landlord. It is not the object of the act that if the release of accommodation is sought on the ground of establishing the major son, the son should sit idle. The bona fide need has to be tested in totality of circumstances and not by taking into consideration such type of pity involvement in earning something for livelihood. I am of the view that the major son of the landlord is entitled to establish his healthier independent business. 9. It is settled that in case, landlord’s son is major and is unemployed and wants to start an independent business, his need has to be treated to be bona fide. Reference may be given to the judgment of the Apex Court in Smt. Sushila v. 2nd Additional District Judge, Banda and others, 2003 (1) ARC 256, and Akhileshwar Kumar and others v. Mustaqim, AIR 2003 SC 532 , as well as of this Court in Devi Saran v. Additional District and Sessions Judge, Court No. 6, Bulandshahr and others (Writ Petition No. 36815 of 2001 decided on 26.9.2008) and Waqar Alam v. Additional District Judge and another, 2010 (78) ALR 748. 10. So far as comparative hardship is concerned it is settled that if after filing of the release application, no effort has been made for searching out an alternative accommodation by the tenant, the question of hardship does not arise in favour of the tenant. Reference may be given in B.C. Bhutada v. G.R. Mundada, AIR 2003 SC 2713 : 2005 (2) ARC 899 and Ganga Devi v. District Judge Nainital, 2008 (7) ADJ 501 . This Court has reiterated the same view in Sri Krishna Bajpai v. Ist Additional District Judge (Shahjahanpur and others), 2006 (2) ARC 78, Hiralal (D) Through L.R. v. Vth A.D.J.and others, 2006 (2) AWC 1542 and Kulwant Singh (Sardar) v. VIth A.D.J. Saharanpur and others, (2007 (1) ARC 512. 11. This Court has reiterated the same view in Sri Krishna Bajpai v. Ist Additional District Judge (Shahjahanpur and others), 2006 (2) ARC 78, Hiralal (D) Through L.R. v. Vth A.D.J.and others, 2006 (2) AWC 1542 and Kulwant Singh (Sardar) v. VIth A.D.J. Saharanpur and others, (2007 (1) ARC 512. 11. Here in this case, the prescribed authority has held that as during the pendency of the release application, the tenant has not made an effort to search out any alternative accommodation, therefore the comparative hardship of the landlord would be greater. The appellate authority has not addressed itself on the point for the reason that the need of the landlord was not found to be pressing and bona fide. 12. After going through the entire judgment of the appellate authority and record, I find that the appellate authority has erred in holding that the need of the landlord is not bona fide. Therefore, the impugned judgment passed by the appellate authority cannot be sustained in the eye of law. The writ petition succeeds and is allowed. The impugned judgment and order dated 18.3.2009, passed by Additional District Judge, Court No. 1, Jhansi, is hereby quashed.