JUDGMENT S.U. Khan, J.
1. Property in dispute is a three storied building occupying an area of about 450 sq. feet. The ground floor consists of a big Hall. On the first floor there are two rooms and other amenities like kitchen etc. On the second floor there is one room, one Varandah and open space Mother of both the petitioners Harish Chandra and Dinesh Chandra purchased the property in dispute from its previous owners through registered sale deed dated 7.8.1976 since before its purchase accommodation in dispute was under tenancy occupation of Ram Shanker Agarwal, who was carrying on business there from in the name of Messrs Popular Gramophone Saloon, which was sole proprietorship of Ram Shankar Agarwal. During pendency of proceedings before courts below Sri Ram Shanker Agarwal, the original tenant died and was survived by respondents 1 to 10 Respondent No. 1 also died during pendency of the writ petition and was survived only by respondents 2 to 10.
2. Petitioners filed release application, giving rise to the instant writ petition on the ground of bonafide need, in November 1979 under Section 21 of UP. Act No. 13 of 1972 against M/S Popular (Gramophone Saloon and Ram Shanker Agarwal. Release application was registered as Rent Case No. 237 of 1979. The municipal number of the accommodation in dispute is 18/180 Kursawan, the Mall, Kanpur. Shrimati Kamla Devi the mother of the petitioners had died before filing of the release application. The rent of the accommodation in dispute is Rs. 94.31 per month. The current rent for the building may be about 200 times of the existing rent.
3. In the release application it was stated that tenant Ram Shanker Agarwal was using first and second floor portion of the accommodation in dispute, for residential purpose and ground floor for commercial purpose. The tenant denied the said assertion and stated that the entire building was taken on rent for commercial purpose and was being used as such. It was further stated that only occasionally under great pressure of business proprietor of the firm stayed for a day or two in the first and second floors. However, those portions were also basically used for commercial purpose like Godown, store room etc. Lot of evidence was led by both the parties and lot of space was occupied by both the courts below in their judgments regarding the availability of other residential accommodation to the tenant. In my opinion, it was not at all necessary. When tenant asserted that he was not using any portion of the building in dispute for residential purpose, there was absolutely no occasion to decide as to whether any other residential accommodation was available to the tenant or not. Decision on the said point either way could not have made any difference.
4. In the release application it was stated that the landlords, (who were minors even at the time of filing of the writ petition), were residing in a small tenanted accommodation in Kanpur along with their sisters and father and that their father was carrying on Ghee business from a small tenanted shop in Kanpur. It was therefore asserted that landlords required ground floor for establishing a shop for their father and first and second floors for the purpose of their, sisters and father's residence. Petitioners stated that their mother, who had purchased the accommodation in dispute had gifted the same to the petitioners. It was almost admitted by the petitioners that their father was also connected with a business in Hardoi. Prescribed Authority /VIIIth Additional Munsif, Kanpur allowed the release application through judgment and order dated 27.2.1982, copy of which is Annexure '5' to the writ petition. In the release application, father and sisters of the petitioners were impleaded as proforma opposite parties No. 3 to 9.
5. Against the judgment and order of the Prescribed Authority dated 27.2.1982 Messrs Popular Gramophone Saloon and Ram Shanker Agarwal filed Rent Appeal No. 98 of 1982. The said appeal was heard and decided along with Rent Revision No. 311 of 1979 in between the same parties by XVI Additional District Judge Kanpur. The Appellate Authority through judgment and order dated 30.4.1984 allowed the appeal, set aside the judgment and order passed by the Prescribed Authority and dismissed the release application, hence this writ petition by the landlords
6. Supplementary affidavits have been filed in this writ petition regarding the shop at Kanpur which' was in the tenancy occupation of the petitioners' father. According to the petitioners' case the said shop being quite old fell down, of it own, hence their father left the same and was now doing business only at Hardoi. According to the case of the tenants the said shop was purchased by another person and after receiving some PAGADI from the said person petitioned father vacated the shop and thereafter the new purchaser demolished the same. Appellate Court clearly found that there is overwhelming documentary evidence, to prove that the landlords along with their family members had been permanently residing in rented house No. 58/53 Birhana Road, Kanpur and did not permanently live at Hardoi. Appellate Court further held that the accommodation on first and second floors of the premises in dispute was equal to the accommodation available to the landlords in the house in which their father was tenant. The Appellate Court after recording these findings held that the need of the landlord for residential purpose was not bonafide This finding is clearly erroneous in law A tenanted building available to the landlord can never be taker in to consideration while deciding his bonafide need for his own building in possession of another tenant vide G.K. Devi v. Ghanshyam Das A.I.R. 2000 S.C. 656 and Dhanna Lal v. Kalaswati BAI AIR 2002 S.C. 2572 (para 26).
7. Similarly in respect of need for commercial accommodation for petitioners' father the Appellate Court held that petitioners' father was conveniently carrying on his Ghee business from shop No. 47/52, Generalganj, Kanpur in which he was tenant hence "no useful purpose is likely to be served by shifting that business to the ground floor of house No. 18/180". This finding is also erroneous in law on the basis of the aforesaid authorities of the Supreme Court.
8. Appellate Court also found that tenant was continuing in possession since 1930 Relevant portion of the judgment of the Appellate Court in that regard is quoted below:
On the other hand, the tenants have their well established business in the disputed house since the year 1930. For some years past, they are carrying on cloth business in the ground floor. They are stockists of Bombay Dying for the Mall Road area They store the stock in the first and the second floors "According to their evidence, they still carry on gramophone repairs also. The turnover of their business-is very extensive as is-clear from Sales-tax and Income-tax returns In such circumstances, if the tenants are forced to vacate disputed house no 18/180, they are likely to lose their dealership and suffer a huge and irreparable loss.
The landlords had offered that tenants could take on rent the shop which was in the tenancy occupation of their father The Appellate Court contemptuously rejected the said suggestion on the ground that said shop was only 8'xlO' (area 80 sq. feet) while shop in dispute was having an area of 450 sq. feet and was more suitable for a huge business, which tenants were carrying on. From this description of the extent of the tenants' business it is quite clear that tenants were in a position not only to take on good rent another shop but even could purchase another shop. These aspects ate extremely relevant for considering the comparative hardship, as held by the Supreme Court in B.C. Bhutada v. G.R. Mundada .
9. In my opinion, judgment and order passed by the lower Appellate Court on both the counts i.e. bonafide need and comparative hardship is patently erroneous in law.
10. Learned counsel for the tenant-respondents has vehemently argued that as admittedly father of the landlords has wounded up his business at Kanpur and is doing business exclusively from Hardoi, hence his need for commercial accommodation has vanished. In my opinion no such inference can be drawn It was stated and found proved by Prescribed Authority that landlords' father intended to start Ghee business from the shop in dispute. If tenanted accommodation available to the father of the landlords could not be taken in to consideration while deciding his need, then the fact that the said accommodation has been vacated will also not make any difference. Kanpur is much more important city for business than Hardoi. The ratio of commercial importance of both the cities may roughly be 20:1. If father of the landlords is no more interested in doing business from Kanpur from a tenanted shoo, it does not mean that he is not interested in doing business from Kanpur at all.
11. Learned counsel for the tenants-respondents categorically stated that tenants were ready to purchase the accommodation in dispute from the landlords not only at its current market value but they were ready even to pay 10 or 20 per cent more. However, landlords declined the offer
12. Learned counsel for the tenants further asserted that father of the landlords was not at all interested in doing business from the ground floor portion of the accommodation in dispute but due to huge commercial importance landlords were interested only in selling the property in dispute after getting its possession. This apprehension may be-taken care of by passing suitable order.
13. Accordingly writ petition is allowed Judgment and order passed by the Lower Appellate Court dated 30.4.1984 is set aside Judgment and order dated 27.2.1982 passed by Prescribed Authority is restored.
14. Tenant respondents are granted ore year's time to vacate provided that;
15. Within one month from today they file an undertaking before the Prescribed Authority to the effect that on or before the expiry of period of one year they will willingly vacate and handover possession of the accommodation in dispute to the landlord-petitioners.
(ii) For this period of one year, which has been granted to the tenants to vacate they are required to pay Rs. 96,000/- (at the rate of Rs. 80007-per month) as rent/damages for use and occupation. This amount shall also be deposited within one month before the Prescribed Authority and shall immediately be paid to the landlord-petitioners.
16. In case of default in compliance with either of these conditions, tenant-respondents shall be evicted after one month through process of Court.
17. It is further directed that in case undertaking is not filed or Rs. 96,000/- are not deposited within one month then tenant-respondents shall be liable to pay damages at the rate of Rs. 15000/- per month since after one month till the date of actual vacation.
18. Similarly, if after filing the aforesaid undertaking and depositing Rs. 96,000/- the accommodation in dispute is not vacated in one year, then damages for use and occupation snail be payable at the rate of Rs. 15000/- per month since after one year till actual vacation.
19. It is further directed that landlords shall not either sell or enter into agreement for sale or let out or transfer the shop in any manner to any other person for a period of 10 years from the date on which they get possession thereof If they do so, then tenants will have right of pre-emption against the purchasers/transferees, which may be enforced through suit. In the eventuality of sale or transfer of property in dispute in any other manner including Agreement for sale, tenants will be at liberty to apply for re-delivery of possession before Prescribed Authority On such an application being filed, the Prescribed Authority shall positively decide the same within three months after initiation, of the proceedings.