JUDGMENT Tarun Agarwala, J.
1. This writ petition has been filed by the tenant for the quashing of the judgment dated 1.9.1986 passed by the prescribed authority under U.P. Act No. 13 of 1972 and the Appellate order and judgment dated 15.7.1987 passed by 8th Additional District Judge, Kanpur Nagar, allowing the release application of the landlord, respondent No. 1 under Section 21 (1) (a) and (b) of the U.P. Act No. 13 of 1972 (hereinafter referred to as the Act).
2. Respondent No. 1 in his application under Section 21 (1) (a) and (b) of the Act, stated that he became the owner and landlord of the premises No. 79/7, Latouche Road, Kanpur, vide a registered sale deed dated 20.8.1977. Respondent No. 1 contended that he had purchased the said premises for his residential and business purposes on the assurance given by the petitioners that they will vacate the premises in question, as they had shifted their entire transport business to the Transport Nagar and did not require the premises in question for their business purposes. On this assurance the petitioner had purchased the property but thereafter, the petitioners did not vacate the premises in question. Accordingly, respondent No. 1 filed the application for release of the premises in question, after the expiry of the stipulated period contained in the first proviso to Section 21 (1) of the Act.
3. Respondent No. 1 contended that he was living with his parents and brothers in a very small accommodation, which consisted of two rooms in the first floor and one room on the second floor. His brothers were already married and that the respondent No. 1 had also got married recently and therefore required more space and privacy. The accommodation in question was insufficient and that the relationship with his brothers were becoming strained. Respondent No. 1 also contended that he was working as a Manager in M/s. Chawala Sewing Machine, which was owned by his brothers and mother and that the respondent No. 1 wanted to carry on the sewing machine business and other allied business independently and for this purpose required the ground floor and that the first floor would be used for residential purposes after reconstructing the premises in question. Respondent No. 1 alleged that he has the requisite finance to reconstruct the premises and had further got the plan sanctioned from the relevant authorities.
4. Respondent No. 1 further alleged that the petitioners had shifted their entire property business to the Transport Nagar and are keeping the premises in question locked and are no longer using it for their business purposes. The respondent No. 1 alleged that Kanpur Development Authority had allotted a plot to the petitioners at a nominal premium with a condition that they shall shift their entire transport business to the Transport Nagar, which they did, but are retaining the accommodation in question for vested reasons. Respondent No. 1 contended that he has a bona fide and genuine need of the premises in question and that his need is greater than that of the petitioners. The respondent No. 1 further alleged that the petitioners are not vacating the premises because they want to extract a premium from him before vacating the premises in question.
5. The petitioners contested the application and contended that Sri Waheeduzana, Iqbal Hussain and others were the owners of the building in question and decided to sell the building by a public auction. They appointed a private auctioneer, who advertised the sale of the building and the premises in question was put to auction on 23.6.1977 in which the bid of petitioner No. 3, Sri Surendra Kumar was the highest and was accepted by the auctioneer. Petitioner No. 3 deposited 1/4 of the bid money and thereafter the sale certificate was issued in his favour. It was alleged that the sale deed was to be executed after obtaining permission from the ceiling authorities. The owners after obtaining the permission from the ceiling authority did not execute the sale deed and surreptitiously executed a sale deed in favour of respondent No. 1. The petitioners contended that petitioner No. 3, filed Suit No. 458 of 1978 before the Civil Judge for specific performance of the contract for sale of the premises in question. The petitioners contended that by virtue of the sale certificate they have become potential owners and therefore, the application under Section 21 of the Act was not maintainable. The petitioners further contended that even though they had shifted their business to the Transport Nagar, their booking office continued to function from the premises in question. It was urged that no such condition was imposed by the Kanpur Development Authority that the petitioners will shift their entire business to the Transport Nagar. The petitioners further contended that the city booking office was the lifeline of their transport business and that they have no other place to shift their city booking office. The petitioners further denied that the building was in a dilapidated condition and further stated that the respondent No. 1 had not complied with the conditions contemplated under Rule 17 (2) of the Rules framed under the Act. It was also alleged that the application under Section 21 of the Act was filed in order to frustrate the suit of specific performance filed by the petitioner No. 3 and to harass the petitioners.
6. The prescribed authority allowed the application and released the premises in favour of the respondent No. 1. The prescribed authority found that the respondent No. 1 was the owner and landlord of the premises in question and that the petitioners were the tenants and were paying the rent to the respondent No. 1. The trial court found that the sale certificate issued in favour of petitioner No. 3 was only an agreement to sell, which was also not registered under the Registration Act and therefore, the sale certificate did confer any right, title or interest in the property in question. The prescribed authority further held that the need of the respondent No. 1 is bona fide and genuine and that his need was greater than that of the petitioners. The prescribed authority further found that the petitioners had shifted their transport business to the Transport Nagar and therefore did not require the premises for their business premises. The trial court further found that the application of respondent No. 1 under Section 21 (1) (a) was not barred by Section 53A of the Transfer of Property Act.
7. Aggrieved by the decision of the prescribed authority the petitioner filed an appeal which was also dismissed. The appellate court also arrived at the same conclusion. The petitioners have now filed this writ petition.
8. It may be stated here that the suit of petitioner No. 3 for specific performance of the contract of sale was dismissed by the trial court as well as by the appellate court and thereafter the petitioner No. 3 filed Second Appeal No. 434 of 2000 before this Court. Both the second appeal and this writ petition were heard together,
9. Heard Sri Pramod Kumar Jain, the learned counsel for the petitioners assisted by Sri Gaurav Jain advocate and Sri Ravi Kant, the learned counsel for the respondent No. 1 assisted by Sri Manoj Kumar Pandey, advocate.
10. The learned counsel for the petitioners has raised three points namely, that the petitioner No. 3 is a potential owner of the premises in dispute by virtue of the sale certificate issued in his favour and in the event the second appeal is allowed and the suit for specific performance is decreed, in that event, petitioner No. 3 would be entitled to execute the decree and would become the owner of the property. Thus, the application of the respondent No. 1 for release of the premises would not be maintainable.
11. The second point urged is that in the event the second appeal is dismissed and the petitioners are treated to be the tenants, in that case the judgment of the courts below are liable to be set aside on the ground that the findings of bona fide need and comparative hardship by the courts below are incorrect and are based on surmises and conjectures. It was also submitted that the findings on bona fide need and comparative hardship have been given by the courts below only while considering the need of respondent No. 1 for his residential purpose and that no finding has been given with regard to the need of respondent No. 1 for his business purpose.
12. The third point raised was that the need of respondent No. 1 would be satisfied by releasing only a portion of the premises. The contention of the learned counsel was that under Rule 16 (1) (d) the upper floor of the premises could be released in favour of respondent No. 1 and the ground floor may be permitted to be retained by the petitioners for their business purpose.
13. Taking up the first contention raised by the learned counsel for the petitioners, I have held in my separate judgment in Second Appeal No. 434 of 2000, that the petitioner No. 3's suit for specific performance was not maintainable in view of the fact that the sale certificate issued in favour of petitioner No. 3 was only a contract of sale, which was required to be compulsorily registered under Section 17(1)(b) of the Registration Act read with Section 54 of the Transfer of Property Act in view of the amendment made in the aforesaid sections by U.P. Act No. 57 of 1976, which was applicable in the State of U.P. and which became effective from 1.1.1997. I also held that in view of the amendment made in Section 49 of the Registration Act, vide the same amendment Act No. 57 of 1976, no suit for specific performance would be filed unless and until the contract or agreement to sell was registered. Admittedly, the sale certificate was issued on 23.6.1977 and the amendment became effective from 1.1.1977. Therefore, the petitioner No. 3 could not claim any benefit, interest or title from the sale certificate, as it was not registered. Thus, the petitioner No. 3 could not become the potential owner of the premises in question. The first contention raised by the learned counsel fails.
14. On the second contention, I find that the findings given by the courts below on bona fide need and comparative hardship are based on evidence on record and are not based on surmises and conjectures. Both the courts below has considered the evidence brought on record in detail and thereafter have given a finding that the need of the respondent No. 1 was genuine and bona fide and that the need of respondent No. 1 was greater in comparison with the need of petitioners. Both the courts below have held that the transport business of the petitioners has already shifted to the Transport Nagar and that the petitioners do not require the premises in question for their business. The courts below has also held that the need of respondent No. 1 for his residential and business purpose is genuine and bona fide. The argument of the learned counsel for the petitioners that the courts below has not considered the need of the respondent No. 1 for his business purpose is devoid of any merit. In view of the concurrent findings of fact given by both the courts below, I see no reason to interfere in a writ jurisdiction under Article 226 of the Constitution of India. Thus, the second contention is devoid of any merit and is accordingly rejected.
15. The last contention raised by the learned counsel for the petitioners that the courts below should have released only a portion of the premises in question inasmuch as the release of the first floor would have satisfied the need of respondent No. 1 for his residential and business purposes. In my opinion, this argument is devoid of any merit.
16. In the first instance, this point was neither urged before the prescribed authority or before the appellate court. No such ground has been taken in the writ petition and only oral submissions have been made.
17. In Smt. Raj Rani Mehrotra v. IInd A.D.J. and Ors., 1980 ARC 311, the Supreme Court held that under Rule 16(1) (d) of the Rules, it is the duty of the Court to take into account this aspect while considering the requirement of personal occupation of the landlord. In the light of this judgment, this Court sifted through the evidence that was brought on record, and I find that the contention raised by the petitioners is untenable and is liable to be rejected. It has come on record that the rear portion of the first floor has collapsed and that the first floor was in a dilapidated condition, which required reconstruction. This is based on the report of the Advocate Commissioner and the report of an engineer. It has also come on record that the remaining portion of the first floor was in occupation of Harbhajan Singh. It is not clear as to how Harbhajan Singh came to occupy this portion, whether as a tenant of respondent No. 1 or at the instance of the petitioners. But this much is clear that the first floor is not available to the respondent No. 1 at the present moment and further it requires demolition and reconstruction. Therefore, at the present moment, the first floor is not in a condition to be used either for residential or for business purpose or for both. Thus, the question of releasing only a portion of premises in favour of respondent No. 1 does not arise.
18. On the other hand, the respondent No. 1 had come out with a clear case, that he will reside on the first floor after reconstruction and will do his business on the ground floor. The stand taken by respondent No. 1 is very clear and precise. It should not be forgotten that respondent No. 1 was recently married and the accommodation in question where he was residing was insufficient and relationship with his brothers were getting strained. The respondent No. 1 is entitled to stay and do the business from his own premises and should not be left to the mercy of his brothers. The respondent No. 1 is also entitled to his privacy and space. In view of the aforesaid, I hold that the entire premises have to be released in favour of the respondent No. 1.
19. The learned counsel for the petitioner had also submitted that in the event the writ petition is dismissed, the petitioners may be granted two years time to vacate the premises in question. This Court while considering this submission, had placed a condition as to whether the petitioners would be willing to pay compensation @ Rs. 1,000 per month from the date of the passing of the order of the lower appellate court. The learned counsel for the petitioners agreed to pay the aforesaid compensation. However, this was opposed by the learned counsel for the respondent No. 1 and contended that more than two decades have elapsed in this litigation and further time should not be granted at any cost.
20. In view of the aforesaid, the writ petition is dismissed with costs. However, the petitioners are granted time till 31.7.2004 to hand over peaceful possession to respondent No. 1, provided the petitioners pays to the respondent No. 1 a sum of Rs. 50,000 by bank draft, as compensation by 28.5.2004 and also gives an undertaking in writing by 28.5.2004 before the prescribed authority to the effect that the petitioners will hand over vacant possession to respondent-No. 1 on or before 31.7.2004 and pays the arrears of rent and future rent till 30.7.2004. In the event of default, the respondent No. 1 is permitted to get the eviction executed forthwith.