JUDGMENT Dilip Gupta, J.
1. The tenant has sought the quashing of the order dated 23rd February, 2007 by which the Prescribed Authority allowed the application filed by the landladies under Section 21(1)(a) of the U.P. Urban Buildings, (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the 'Act') for eviction of the tenant from the shop in dispute. The petitioner has also sought the quashing of the judgment and order dated 17th March, 2008 by which the Appeal filed by the tenant under Section 22 of the Act for setting aside the aforesaid order of the Prescribed Authority was dismissed.
2. The landladies had filed the application under Section 21(1)(a) of the Act for eviction of the tenant from the shop in dispute on the ground that it was bona fide required by Anurag Sharma, son of Smt. Vijay Lata Sharma applicant No. 2, for opening a showroom of readymade garments; that Anurag Sharma had done M.A. in (Sociology) in 1986 and was married and had two children but was sitting idle with no employment or business and, therefore, bona fide required the shop in dispute; that the tenant was actually doing a casual petty business of selling iron chain for animals from the shop in dispute and, in fact, he was doing the main business of supplying locks from his residential house and did not require the shop in dispute at all.
3. The tenant filed a reply to the aforesaid application asserting that Anurag Sharma was not unemployed but was in possession of another shop of the landladies from where he was doing business of hardware material and that he was also doing readymade garment business with one Sri Laxmi Narayan from another shop; that the applicants had recently let out two shops to two different persons and in case the need of Anurag Sharma was bona fide, one shop could have been retained and that the tenant was likely to suffer greater hardship in the event the application was allowed.
4. The Prescribed Authority by the order dated 23rd February, 2007 allowed the application filed under Section 21(1)(a) of the Act. It held that the shop was bona fide required for the need of Anurag Sharma to establish him in business. It found that Anurag Sharma was not carrying out any business and, in fact, the tenant was doing business of selling hardware materials from his residence and that the shop in dispute was being run by his brother. The Prescribed Authority also found that the applicants were likely to suffer greater hardship since on the one hand Anurag Sharma was unemployed whereas on the other hand the tenant was engaged in business from his residence and his brother was doing business from the shop in dispute. The Appeal filed by the tenant was dismissed by a detailed judgment and order dated 17th March, 2008 and the findings recorded by the Prescribed Authority have been confirmed.
5. I have heard Sri M.K. Gupta learned Counsel for the petitioner and Sri Diwakar Rai Sharma learned Counsel appearing for the respondents and have perused the materials available on record.
6. Learned Counsel for the petitioner submitted that the need of Anurag Sharma to open a showroom of readymade garments was not bona fide inasmuch as he had sufficient income from the offerings made in the temple owned by the landladies. The Prescribed Authority as well as the Appellate Authority have not accepted this contention and have observed that the offerings were paltry and were hardly sufficient to meet the requirements of Anurag Sharma. This is finding of fact based on appraisal of evidence and nothing has been pointed out from the record which may indicate that the finding is perverse.
7. The Prescribed Authority as well as the Appellate Authority have also recorded a categorical finding of fact that Anurag Sharma was not engaged in any business and that he bona fide required the shop in dispute to open the readymade garment showroom so that he could maintain his family consisting of his wife and two children. Comparative hardship has also been found in favour of the landladies.
8. It would thus be seen that the Prescribed Authority as well as the Appellate Authority have, on appraisal of evidence, recorded categorical findings of fact about bona fide need and comparative hardship. The Supreme Court in Munni Lal and Ors. v. Prescribed Authority and Ors. observed that while examining the findings of bona fide need and comparative hardship of landlord and tenant it is not for the High Court in the exercise of its jurisdiction under Article 226 of the Constitution to reappraise the evidence and come to its own conclusion which may be different from that reached by the Appellate Court or the Prescribed Authority.
9. This view has been reaffirmed by the Supreme Court in Surya Dev Rai v. Ran Chander Rai and Ors. 2003 (2) ARC 385 and Ranjeet Singh v. Ravi Prakash 2004 (1) ARC 613.
10. It further needs to be mentioned that the need to establish an unemployed son in business has time and again been considered to be bona fide. Reference can be made to the decision of the Supreme Court in Sushila v. IInd Additional District Judge Banda and Ors. wherein it was observed:
We find that Prem Prakash is a young man who is unemployed. He is married and has children. There is every justification for him or for his mother to settle him in life independently. He cannot be compelled to join his father in his Goldsmith and money lending work in his small shop. In our opinion, he is entitled to start business of his own choice and independently. The appellate court took a view, as indicated above, which is palpably wrong and wholly unacceptable.
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...So far as the petitioner is concerned, she has no other shop where she can establish her married son who is unemployed. In such circumstances, the only fact that the shop in question is in possession of the tenant since long will have no material bearing in deciding the question of comparative hardship. To say that son of the petitioner-landlady may remain unemployed but the shop in question must continue to remain in occupancy of the tenant to whom yet another shop is available in Chowk Bazar would not withstand the guidelines and tests laid down in Sub-rule (2) of Rule 16 of the Rules of 1972.
A bare perusal of Rules 16 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972 , makes it clear that the rule only prescribes certain factors which have also to be taken into account while considering the application for eviction of a tenant on the ground of bonafide need. Sub-rule 2 of Rule 16 quoted earlier relates to the cases of eviction from an accommodation for business use. Clause (a) of Sub-rule 2 provides, greater the period of tenancy less the justification for allowing the application; whereas according to Clause (b) in case tenant has a suitable accommodation available to him to shift his business, greater the justification to allow the application. Availability of another suitable accommodation to the tenant, waters down the weight attached to the longer period of tenancy as a factor to be considered as provided under Clause (a) of Sub-rule 2 of Rule 16. Yet another factor which may in some cases be relevant under Clause (c) is where the existing business of the landlord is quite huge and extensive leaving aside the proposed business to be set up, there would be lesser justification to allow the application. The idea behind Sub clause (c) is apparent i.e. where the landlord runs a huge business eviction may not be resorted to for expansion or diversification of the business by uprooting a tenant having a small business for a very long period of time. In such a situation if eviction is ordered it is definitely bound to cause greater hardship to the tenant.
In the case in hand we find that even though the period of tenancy of the respondent is no doubt long but availability of another shop to him where he can very well shift his business as found by the Prescribed Authority, neutralises the factor of length of tenancy in the accommodation in dispute. We further find that the landlady has no other shop where she can establish her son who is married and unemployed. There is nothing on the record to indicate that the business of father of Prem Parkash is so huge or that it is a very flourishing business so as to attract application of Clause (c) of Rule 16(2). As observed earlier it is clear that length of period of tenancy as provided under Clause (a) of Sub-rule 2 of Rule 16 of the Rules, 1972 is only one of the factors to be taken into account in context with other facts and circumstances of the case. It cannot be a sole criterion or deciding factor to order or not the eviction of the tenant. Considering the facts in the light of Rule 16 pressed into service on behalf of the respondent, we find that according to the guidelines provided therein balance tilts in favour of the unemployed son of the landlady whose need is certainly bonafide and has also been so accepted by the respondent before us.
11. There is, therefore, no merit in any of the contentions advanced by the learned Counsel for the petitioner. The writ petition is, accordingly, liable to be dismissed.
12. In the end learned Counsel appearing for the petitioner submitted that six months may be given to the petitioner to handover peaceful possession of the shop to the landladies.
13. Learned Counsel appearing for the landladies submitted that the Court may grant the aforesaid time provided the petitioner gives the usual undertaking within three weeks from today before the Court below.
14. The writ petition is, accordingly, dismissed. The petitioner shall not be ejected from the premises in dispute for a period of six months from today provided the petitioner gives the following undertaking before the Court below within three weeks from today.
1. That the petitioner shall pay damages at the rate of Rs. 200/- per month up to the date he handover the possession of the shop to the landladies.
2. That the petitioner shall not induct any other person in the shop.
3. That the petitioner shall handover peaceful possession of the shop to the landladies on or before the expiry of six months.
15. It is made clear that in the event the petitioner fails to give the undertaking within the aforesaid period or fails to comply with any of the terms of the undertaking, then in that case, it will be open to the landladies to get the decree executed.