JUDGMENT Rakesh Tiwari, J.
1. Heard Sri A.K. Gupta counsel for the petitioner and Sri Vipin Saxena counsel for the respondents.
2. The petitioner is tenant of shop No. 5, Nehru Market, Madar Gate Aligarh on a monthly rent of Rs. 27. He claims to be tenant of the shop for the last more than 50 years.
3. An application was filed by Smt. Lakshmi Devi Varshaney daughter of Sri Bankey Lal Varshaney and mother of respondents who were minors under Section 21(1)(a) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 against the petitioner for release of the accommodation. A written statement was filed by the petitioner denying the allegations contained in the release application.
4. The contention of counsel for the petitioner is that there has not been any partition between the family members of landlord-respondents and suit for partition between the heirs is already pending. He urged that unless and until any partition takes place, the respondents cannot claim any right as landlord of the disputed shop.
5. It appears from records that J.S.C Suit No. 149 of 1982 was filed by Smt. Lakshmi Devi Varshaney against her brother Sri Prem Shankar who is in occupation of adjacent shop No. 6 in the same market.
6. The Prescribed Authority allowed the release application filed by Smt. Lakshmi Devi Varshaney. After consideration of entire material available on record, the Prescribed Authority found that the petitioner was doing the business of tailoring from the shop in dispute and he could shift this business to any other place and that he could have arranged an alternate shop after filing of the release application. The plea of the defendant-tenant that the daughters of late Smt. Lakshmi Devi Varshaney are minor and the shop cannot be released after the death of the applicantSmt. Lakshmi Devi Varshaney was rejected by the Prescribed Authority. He also found that the when petitioner could not arrange an alternate shop for the last more than 50 years, it cannot be expected from the minor children to arrange for a place to reside after the death of their parents during the pendency of the release application.
7. Respondents are living with their maternal uncle at present after the sad demise of their parents. After considering entire facts and circumstances of the case, the trial court held that the need of the minor daughters of the applicant late Smt. Lakshmi Devi Varshaney is not only bona fide and genuine but also pressing than the petitioner-tenant. The trial court held as under:
mijksDr foospu ,oa i=koyh ij miyC/k lk{; ds vk/kkj ij ;g LIk"V gksrk gS fd izuxr Hkou ikfjokfjd foHkktu ds ifj.kkeLo#i e`rd y{eh nsoh ok".ksZ; dks izkIr gqvk Fkk ,oa mudh e`R;q ds ipkr~ rhuska vYio;Ld o orZeku izkFkhZx.k mlds Lokeh gq, ,oa os orZeku esa Jherh fot;Jh ,oa dq ljLorh nsoh ,MoksdsV ds laj{k.k esa vius fudV fjrsnkj ds ;gkWa jg jgs gSa ftlusa edku [kkyh djus ds fy, funsZfkr fd;k gS ,oa izkFkhZx.k usa Lo;a ds fk{kk jgu&lgu] fdpu ,oa LVksj ds #i esa mi;ksx gsrq izuxr Hkou dh ln~Hkkoh vko;drk gS ,oa mudh vkfFkZd nkk bl izdkj dh ugha gS fd os vU; Hkou izkIr dj ldsa rFkk vU; dksbZ Hkou miyC/k ugha gS tgkWa jg ldsa ogha nwljh vksj foi{kh yxHkx 50 o"kksZa ls ml Hkou esa fdjk;snkj ds #i esa jg jgk gS vU; Hkou dh rykk ugha dh xbZ gS og O;olkf;d YkkHk izkIr dj jgk gS tcfd izkFkhZx.k dk futh thou ,oa vfLrRo muds ekWa cki dh e`R;q gksus ds ipkr~ ladV esa gSaA vr% bu ifjfLFkfr;ksa dks ns[krs gq, vuqikfrd dfBukbZ izkFkhZx.k ds i{k esa vf/kd gS izkFkZuk I= Lohdkj u gksus dh nkk esa u dsoy izkFkhZx.k dk thou ladV esa gksxk cfYd mudk Hkfo"; Hkh foijhr #i ls izHkkfor gksxkA ogha nwljh vksj foikh viuk O;olk; dgha vU;= dj ldrk gSA ekuoh; n`f"Vdks.k ls Hkh izkFkZuk i= Lohdkj fd;s tkus ;ksX; gSA izuxr O;olkf;d gksus ds dkj.k foi{kh nks lky dk fdjk;k fof/kd #i ls izkIr djus dk vf/kdkjh gSA vknsk vf/kfu;e la[;k 13 lu~ 1972 dh /kkjk 21 1 ds vUrxZr fn;k x;k izkFkZuk i= lO;; Lohdkj fd;k tkrk gS ,oa izkFkZuk i= esa mfYyf[kr Hkou nqdku la[;k 5 fLFkr usg# ekdsZV dksrokyh vyhx<+ dks izkFkhZuh ds }kjk foi{kh dks nks o"kZ dk fdjk;k Hkqxrku djus dh krZ ij izkFkhZx.k ds i{k esa eqDr fd;k tkrk gSA izkFkhZx.k ds }kjk mDr fdjk;k vknsk ls 15 fnu ds vUnj Hkqxrku djus ij foi{kh dks funZsk fd;k tkrk gS fd ,d ekg vUnj mDr Hkou fjDr dj ml ij vkf/kiR; izkFkhZx.k dks ns ns vU;Fkk izkFkhZx.k dks fofo/kuqlkj vknsk fdz;kfUor djus dk vf/kdkj izkIr gksxkA fnukad 9-1-2001 g ,ldsflag flfoy tt lh Mh fu;r izkf/kdkjh] vyhx
8. Aggrieved by the aforesaid judgment of the Prescribed Authority dated 9.1.2001, petitioner-tenant filed Rent Appeal No. 5 of 2001Mohi. Siddiq v. Smt. Lakshmi Devi Varshaney, in the Court of 4th Additional District and Sessions Judge, Aligarh. The appellate court also dismissed the appeal of the petitioner affirming the judgment of the Prescribed Authority. It has also noted the fact that maternal uncle was not willing to keep the minor daughters of his late sister who in the circumstances of the case were thru shed upon him. The appellate court also rejected (the plea of the tenant that the daughters would not be living in the house as they will be married and will live in the in-laws's house.
9. While affirming the finding, it was held by the appellate court that at the time of death of both parents, daughters were aged about 3, 9 and 11 years respectively and to ask them to live on the road when they could have a roof over their heads would be too harsh, as such, their comparative hardship was much more than the tenant particularly in view of the fact that they have to live in the house of their maternal uncle who refuses to have them in his house and provide for their marriage.
10. There is another sad aspect of the case. Shop No. 6 is possessed by maternal uncle of the respondents. If the disputed shop is released in favour of the daughters, they will live in his watchful eyes and guidance. Both the Courts below have given cogent reasons for allowing the release application.
11. Counsel for the petitioner could not point out any illegality or infirmity in the impugned orders, as such no case for interference in the writ jurisdiction is made out.
12. It has been held that the bona fide personal need is pure question of fact and cannot be interfered with in paragraph 16 of the decision in E. Parashuraman (D) by L.Rs. v. Doraiswami (D) by LR .
13. The writ petition is dismissed. The Courts below have granted one month's time for vacating the shop. Release application was allowed in 2001. It is expected that the petitioner must have searched out an alternate accommodation by now. It is, therefore, directed that the petitioner-tenant will hand over peaceful possession of the disputed shop to the respondents within a month from today. In case the petitioner does not vacate the disputed shop within the stipulated period of one month, he shall be evicted by aid of Police force. No order to costs.