JUDGMENT S.U. Khan, J.
1. This is tenant's writ petition arising out of eviction/release proceedings initiated by landlord respondent No. 3 Tajammul Hussain (since deceased and survived by legal representatives) against him on the ground of bona fide need under Section 21 of U.P. Act No. 13 of 1972. Property in dispute is a shop. In the release application the need set up was to settle the son of the landlord in business. The release application was registered as P.A. Case No. 18 of 1988. Prescribed Authority, Rampur rejected the release application through judgment and order dated 1,3.1990. Against the said judgment and order landlord respondent No. 3 filed Rent Appeal No. 48 of 1990. IIIrd A.D.J., Rampur through judgment and order dated 24.5.1993, allowed the appeal, set aside the judgment and order passed by the prescribed authority and allowed the release application of the landlord hence this writ petition by the tenant.
2. The prescribed authority had found the need of the landlord to settle his son Javed Anjum in business to be bona fide. However, release application had been rejected on the ground that tenant would suffer greater hardship. Before the appellate court two important points were argued by the tenant. The first was that in a shop of the landlord his brother in-law Nisar Hussain was doing business and the said shop was quite big hence in the said shop landlord could settle his son. The lower appellate court turned down the said argument on the ground that landlord was at liberty to choose any of the tenants for filing the release application. It is correct that in this regard landlord has got complete liberty. However, it is improbable that landlord must have given his shop to his brother-in-law on rent. If a landlord has got a shop which is being used by his near relation then in case of need either for himself or for his son landlord is expected to ask his relation to vacate the shop. In such position the theory of choice of landlord to evict any of the tenants cannot be applied as a near relation uses the building of a person only as a licensee.
3. The next and more important point argued on behalf of the tenant before the lower appellate court was that during pendency of release application in September, 1989, another tenant of the landlord, i.e., Shakll Ahmed vacated the shop and the landlord let out the same to one Salim at the rent of Rs. 200 per month (Shakll Ahmad was paying rent of Rs. 125 per month). This fact was not denied by the landlord. However the landlord put forward a strange theory to the effect that Shakil Ahmad had illegally handed over possession of the shop directly to Salim hence landlord had no option except to accept Salim as his tenant. In this regard the lower appellate court has observed that the argument of tenant's counsel that landlord should have initiated proceedings against Salim is not acceptable as litigation in itself has not got much value. The Court is unable to understand the import of this observation. It has come in evidence that landlord is quite a rich person and he owns several buildings, shops and agricultural land. A man of good means and status is not expected to be helpless if one of his tenants illegally delivers possession to another person. Landlord had earlier filed release application in respect of another shop for the need of his other son which ended in a compromise. Against petitioner also he was taking legal proceedings. It cannot therefore be said that landlord was stranger to legal proceedings. In any case if a tenant has vacated and delivered possession illegally to another person then the property can very well be got declared vacant and released under Section 16 of U.P. Act No. 13 of 1972. It is much more easier to get a building released under Section 16 of the Act than under Section 21 of the Act. Under Section 16 of the Act there is no sitting tenant while under Section 21 of the Act there is a sitting tenant like the present case. In proceedings under Section 16 of the Act neither unauthorized occupant nor prospective allottee is entitled to oppose the bona fide need of the landlord. Landlord did not show that he ever objected to the possession of Salim of the shop which was vacated by Shakil Ahmad. He did not bring on record either any notice, or F.I.R. or complaint in respect thereto.
4. In my opinion, the lower appellate court committed an error of law in holding that the shop vacated by Shakil Ahmad was not available to the landlord. It was clearly available to the landlord and he let that out to Salim. In view of this it cannot be said that the need of the landlord was bona fide. In this regard if the theory of the landlord that as possession had directly been delivered by Shakil to Salim is accepted then no purpose will be served by passing order of eviction in his favour in the instant case also for the reason that landlord will feel similar helplessness in case petitioner delivers possession to another person.
5. Accordingly, I am of the view that the finding of the lower appellate court in respect of bona fide need of the landlord is erroneous in law.
6. Writ petition is therefore allowed. Judgment and order passed by the lower appellate court is set aside and judgment and order passed by the prescribed authority is restored (even though on different grounds) with the result that release application of landlord respondent No. 3 stands dismissed.
7. I have held in Khursheeda v. A.D.J. 2004 (1) AWC 851 : 2004 (2) ARC 64, that while granting relief against eviction to the tenant in respect of building covered by Rent Control Act writ court is empowered to enhance the rent to a reasonable extent. Rent of Rs. 100 per month for a shop in Rampur is highly inadequate. Accordingly, it is directed that with effect from November, 2005, onward tenant-petitioner shall pay rent to the landlord-respondent at the rate of Rs, 1,000 per month.