JUDGMENT Rakesh Tiwari, J.
1. Heard learned Counsel for the parties and perused the record.
2. The above mentioned writ petition arises out of the proceedings 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. 13 of 1972).
3. Brief facts of the case are that an application Under Section 21(1) (a) of U. P. Act No. 13 of 1972 for release of the- disputed shop in the tenancy of petitioner's father was filed by the landlord on the ground of his personal need.
4. It appears from the record that the landlord had purchased the disputed building in November, 1991 of which petitioner's father was tenant and was said to be running on rent of Rs. 17.50 rent per month a clinic in the disputed shop.
5. It appears from the record that the landlord had purchased the building in question for the purpose of starting of his own wholesale business of fchadt.
6. The case of the landlord was that he was earlier doing the contract work of supplying electrical goods under the name and style of Vikram Traders which had become highly competitive and speculative being of old age of 78 years, he was unable to shoulder exertion in such demanding work to maintain his family.
7. The family of the landlord comprised of himself, his wife, three sons and five daughters. It is stated that the eldest son Sarvesh Kumar who is aged about 24 years is unemployed. It was also the case of the landlord that in case the portion under the occupation of Dr. Harish Raizada (shown at Sl. No. V) was vacated, the landlord and his eldest son Sarvesh Kumar would start the business of khadi in that portion. The second son-Gopal Verma who is aged about 18 years is also said to be unemployed had joined television course of one year. There being no accommodation where his sons could start their independent business, as such a registered notice dated 12.3.1991, was served on the petitioner's father but he did not vacate the disputed shop. It was claimed by the landlord that his need was genuine and bona fide and great hardship would be caused if the shop was not vacated by him.
8. The release application was contested by the tenant-petitioners on the ground that the defendants were carrying on (the business of electrical goods in the shop in number 7/25, Subhash Road (Railway Road), Aligarh, since long and the respondent filed an application Under Section 21(1)(a) of the U. P. Act No. 13 of 1972 for the release of the entire building in his favour, that the landlord had a big palatial building at Bima Nagar, Soot Mill. Aligarh, where the wholesale business of khadi could be started and further that he had recently obtained possession of the portion of the building occupied by Dr. Harish Raizada. It was also alleged that both the sons of the landlord were helping him in the business of supply of electrical goods on contract. It is stated that the eldest son could be accommodated in the premises vacated by Dr. Harish Raizada and the second son can be accommodated in the premises of Iron Rolling Mill being run by the wife of the landlord. It was also alleged that the respondent had no need to start any new business.
9. After the evidence was led by the parties on affidavit, the prescribed authority by the impugned order dated 4.1.1997, allowed the application of the landlord directing the petitioner to vacate the disputed shop within a period of one month from the date of the order.
10. Aggrieved by the order dated 4.1.1997 of the prescribed authority the petitioner filed U. P. U. B. Appeal No. 3 of 1997 before the District Judge, Aligarh, which was allowed vide order dated 9.4.1999.
11. The appellate court in paragraphs 9 and 10 of the judgment has held that:
9. In the instant case also, as already discussed above that the shop facing the road vacated by Dr. Harish Raizada could very well be suitable for settling the second son of the respondent in television business. The respondent is using the residential portion as his godown and it is not his case that his accommodation is insufficient and the office of wholesale business can comfortably be set up in the Balkhana on the first floor. It is well-settled law, Alom Brothers (Tea) Put. Kanpur v. VIIIth Additional District Judge, Kunpur Nagar and Ors. 1989 AWC 930, that the term bona fide requirement has inherent in it the element of necessity in addition to a mere desire on the part of the landlord to have the accommodation and this should be accounted by a fair motive as opposed to a mere device of a landlord to obtain possession with an ulterior motive. In the instant case, the respondent though having sufficient and suitable accommodation for settling his second son in business, has set up the need as a mere device to obtain possession from the appellants with an ulterior motive. Thus, the alleged need of the respondent is neither genuine nor bona fide. The finding of the learned Prescribed Authority that the portion occupied by Dr. Harish Raizada was got vacated by the respondent for his own need and that his need for the disputed shop still exists for settling his second son in independent business, is illegal and against the evidence on record. In the portion vacated by Dr. Harish Raizada, the respondent besides doing his own wholesale khadi business has also spared a portion for the residence of his elder son, though this was not a ground for the release of that portion. The respondent still has the balkhana on the first floor, which can be used as office and the second son can be accommodated in the shop on the ground floor facing the road. Thus, he has no bona fide need for the disputed shop.
10. Once it is proved that the need of the respondent is not bona fide, the question regarding comparative hardship need not be examined. It would be an exercise in futility.
12. Aggrieved the petitioner has filed this writ petition challenging the order of the appellate court dated 9.4.1999.
13. During the pendency of the writ petition the petitioner died and in his place petitioner Nos. 1/1 Hamendra Kumar Verma, 1/2 Gajendra Kumar Verma, 1/3 Ajendra Kumar Verma, 1 /4 Gyanendra Kumar Verma, 1/5 Bhartendu Kumar Verma and 1/6 Shashi Bala have been substituted as his legal heirs and representatives by order dated 4.4.2005 on application filed by them.
14. It is contended by the counsel for the respondent that the petitioner- tenant has no need of the disputed shop as each one of his five sons have already established their independent business and he is looking his agricultural property. It is submitted that initially the petitioner had sublet and permitted one Sri Virendra Kumar to use this shop/clinic as betel shop and when the objections were raised by the landlord alleging sub-tenancy he locked the shop and permitted a third person to use the open space infront of shop for selling cloths. It is also urged that when the landlord gave a notice to the petitioner for vacating the premises on the ground that the petitioner is not using the shop as clinic, rather has now handed over the shop to Sri Yogesh Kumar Bharadwaj for running P.C.O. on payment of Rs. 1,500 per month to countenance the objections of the landlord the shop is not locked and he is using it in the garb of his clinic.
15. The argument of the counsel for the landlord that the petitioner's sons have already been settled in business and have their own shops has not been disputed by the counsel for the petitioners. The tenant has no right to determine the needs of landlord and cannot assess it. It is landlords choice, being best Judge of his requirements which is not dependent upon the tenants dictates. Reference in this regard may be made to para 21 of Mrs. Meenal Ekath Kshirsagar v. Traders and Agencies and Anr. and paragraphs 4, 7 and 8 of Sail Nagjee Purusotham and Co. Ltd. v. Vimlabai Prabhu Lal and Ors. .
16. The landlord cannot be compelled to use another shop/accommodation as has been held in Smt. Shakuntala Devi v. IVth A.D.J., Bareilly 2006 UPRCC 388: Rameshwar Sahi Mathur v. D.J., Dehradun and Ors. 2004 (1) ARC 177; Akhileshwar Kumar and Ors. v. Mustaqim and Ors. : Gian Devi Anand v. Jevan Kumar and Ors. 1985 SC RC and Dhanna Lal v. Kalawati Bai and Ors. .
17. In so far as question of comparative hardship is concerned, it is to be assessed by the authorities/Courts as has been held in Ramesh Narain v. VIIth A.D.J., Ghaziabad 2006 (2) ARC 331: Kailash Chand and Ors. v. Dharam Das : Mohd. Arif v. IIIrd A.D.J., Pilibhit 2005 (2) ARC 793: Kedar Nath and Ors. v. IIIrd A.D.J., Jaunpur and Ors. 2005 (2) ARC 858: Girdhart and Ors. v. IIIrd A.D.J., Mathura and Ors. 2006 (2) ARC 173: Kelawati (Smt.) v. Additional District Judge / Special Judge and Ors. 2006 (2) ARC 129: Nand Kishore v. Prescribed Authority, Baraut, Meerut and Ors. 2006 (2) ARC 293: Smt. Tahmina Habib v. A.D.J./Special Judge (E. C.) Act, Banda and Ors. 2006 (2) ARC 464: Ved Prakash Gupta and Ors. v. District Judge, Rampur and Ors. 2006 (2) ARC 437; Badri Narayan Chunni Lal Bhutada v. Govind Ram Gopal Mundada Sushfla v. IInd Additional District Judge, Banda and Ors. , hence where the tenant, is not running the shop for any reason or has sublet at higher rent to another person because it is profitable to him (as in the instant case the rent being Rs. 17.50 and disputed accommodation was sublet by the tenant for Rs. 1,600 per month to Sri Y. K. Bhardwaj for running P.C.O. or the tenant not vacating the accommodation inspite of the fact that one or all his family members have acquired alternate accommodation is against the spirit and provisions of the Act. In these circumstances, which are not exhaustive, the tenant has no legal right and bona fide need to hold over the tenanted accommodation. He is liable not only to eviction by heavy damages as his aforesaid acts are accentuated by malice and ulterior motives to harass the landlord and can be said for extracting premium from him for vacating the premises. It is settled law that Courts should not ordinarily deny relief to landlord vide paragraph 25 in Kailash Chcmd and Anr. v. Dharam Das .
18. Since the petitioner's sons are now settled in business and the petitioner who was a doctor is now no more, rather it appears from the record that he had sub-let the disputed shop at the rate of Rs. 1,600 per month to another person. The petition, in the circumstances, is liable to be dismissed with heavy cost, which is assessed at the rate of Rs. 2,000 from November, 1991, per month on the petitioners 1/1 to 1/6. The cost is to be paid within two months to the landlord. In case of default the same shall be recovered as arrears of land revenue within one month of default and paid to the landlord immediately.
19. For the reasons stated above, the writ petition is dismissed. No order as to costs.