JUDGMENT Rakesh Tiwari, J.
1. This writ petition has been instituted for quashing the impugned orders dated 8.5.1986, passed by the Prescribed Authority and dated 21.4.2001, passed by the appellate authority, contained in Annexures-7 and 18 respectively to the writ petition allowing the release application of the respondent-landlady.
2. Briefly stated, the facts of the case are that late Ram Govil was tenant of a shop situated at Ansari Road, Bulandshahr since 1941. Smt. Maqsoodan purchased the aforesaid shop on 11.12.1979 from Sri Ganesh Datt, the erstwhile landlord. She moved Release Application No. R.C. 31 of 1984 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 the need of her son-Shamshad Ahmad. In the release application, the respondent No. 1-landlady prayed that the shop was urgently required as her husband intended to start business of repairing arms from the disputed shop for her son-Shamshad Ahmad.
3. The release application was contested by the petitioner-tenant by filing written statement and denying the contents of the release application and alleging that the need of the landlady for her son was not bona fide and genuine and the release application had been moved with the mal-intention of harassing him. It is also alleged that the landlady was in possession of two other shops having basement as well situated at Ansari Road, near Chowk Bazar which were in the use and occupation of Sri Imtiaz Ahmad, husband of the landlady. The petitioner further alleged that the purpose of getting release of the disputed shop was said for starting business of repair of arms whereas the same business is being run by the husband of the landlady from the aforesaid two shops.
4. The case of the landlord was that the disputed shop was not suitable for the purpose of carrying on business of repair of arms and that earlier the licence of the shop-M/s. B. A. Shastra Bhandar was in the name of one Shamshuddin, sister's son of the husband of the landlady, on whose death, Sri Shamshad Ahmad, for whose need the release application had been moved, was carrying on the business of repair of arms with father, i.e., husband of the landlady from the aforesaid two shops.
5. The petitioner claimed that he being medical practitioner, he has his chamber in the disputed shop wherefrom, his son-Rlshi Kumar Govil was carrying on the business of Optician and that the situation of the disputed shop was perfect for his above business as there was no other shop of Opticians in the vicinity.
6. In support of his case, the petitioner filed his own affidavit stating therein that son of the landlady was carrying on the business of repair of arms with his father-husband of the landlady in two shops alongwith first basement in Chaok Bazar near Ansari Road, Bulandshahr. He alleged that the family of the landlady was very rich as her husband was in possession of a big shopping complex at Kala Aam Ka Chauraha, Bulandshahr near D.M. Colony Road. That apart, the husband of the landlady had constructed a large motor workshop having plinth area of 1717 sq. yards.
7. The son of the tenant-Sri Rishi Kumar Govil also filed his affidavit stating therein that his father was a medical practitioner and he was carrying on the business of optician from the disputed shop. In another affidavit, the petitioner-tenant stated that he was running the dispensary from the disputed shop and that he had no other source of livelihood and in case he was evicted from the shop, he would suffer greater hardship than the landlady. The petitioner also filed an affidavit of one Sri Narendra Kumar Upadhyay in his support who stated that the tenant was in medical profession and running his business whereas from the disputed shop his son was carrying on the business of Optician.
8. The Prescribed Authority vide judgment and order dated 8.5.1986, allowed the release application of the landlord and directed for eviction of the tenant-petitioner.
9. Aggrieved by the order, the petitioner preferred Rent Control Appeal No. 14 of 1986 under Section 22 of the Act which was allowed vide judgment and order dated 11.2.1988, setting aside the order of eviction passed by the Prescribed Authority.
10. Against the order in appeal, aforesaid, the landlady preferred Civil Misc. Writ No. 9858 of 1998 before this Court, which was disposed of vide Judgment and order dated 13.10.1998 and the matter was remanded to the appellate court with the observation that the appellate court shall decide the appeal afresh on merits after taking into consideration the material subsequent events.
11. During the pendency of the appeal, the petitioner-tenant died and has been substituted by his legal heirs.
12. On remand, the appellate authority reheard the appeal and decided the same vide impugned judgment and order dated 21.4.2001, holding that the landlady herself had offered an alternate shop to the tenant but the petitioner refused to take possession of the alternative shop offered by her with a view to remain in possession over the disputed shop. Accordingly, he dismissed the appeal and affirmed the Judgment and decree passed by the Prescribed Authority declaring vacancy.
13. Aggrieved by the above mentioned orders of the Prescribed Authority and the appellate court, the petitioner has come up in this writ petition.
14. Counsel for the petitioner has assailed the impugned judgment of the lower appellate court on the ground that it has not taken into consideration, the evidence subsequently brought on record by the petitioner, as additional evidence, and as such, in teeth of the direction of this Court contained in judgment and order dated 13.10.1988 in Civil Misc. Writ No. 9858 of 1998.
15. It is urged that the petitioner had brought on record the sale deeds by which shopping complex and shops were purchased and sold by the husband of the landlady and that Shamsuddin and Imtiaz Ahmad were running the partnership business of sale and repair of arms in the name and style of M/s. B. A. Shashtra Bhandar. With regard to offer of alternative shop thrown by the landlady, the counsel for the petitioner submitted that the offer was not genuine as the alternative shop offered to the petitioner was not suitable for the business of Optician as the petitioner has gained 'goodwill' in the shop in dispute.
16. He further urged that the findings of the courts below are based on ignorance and misreading of material evidence on record and are not sustainable in law.
17. He also urged that the courts below have not recorded categorical finding on the question of comparative hardship and genuine need of the parties.
18. Counsel for the respondents rebutted the arguments advanced by counsel for the petitioner and submits that the Prescribed Authority framed three issues:
1. Whether the need of the applicant is bona fide and genuine?
2. Whether the need of the applicant is most urgent and pressing than that of the tenant-petitioner? and
3. Whether after eviction, the tenant-petitioner will suffer greater hardship or on rejecting the application the landlady would suffer greater hardship?
19. It is submitted that the Prescribed Authority on issue No. 1 held that Sri Shamshad Ahmad, son of the landlady intends to establish his business for repair of arms separately and requires the shop in dispute for the said purpose. In this regard, the partners of M/s. B. A. Shastra Bhandar have filed affidavit stating therein that they do not want Sri Shamshad Ahmad to be a partner of the firm. He submitted that the Prescribed Authority himself conducted a spot inspection of M/s. B. A. Shastra Bhandar and recorded a categorical finding that for the purpose of repairing arms, there is no place in the shop at M/s. B. A. Shastra Bhandar in this view also Sri Shamshad Ahmad does need a separate place to start his own and independent business.
20. The counsel for the petitioner further submits that issue Nos. 2 and 3 have been decided in favour of the landlady by holding that need of the landlady is far more pressing than that of the tenant-petitioner and she will suffer greater hardship than the tenant-petitioner in case the release of accommodation is not allowed.
21. It is urged that the Prescribed Authority has held that so far as the contention of the petitioner that the business in the name and style of M/s. Kishor Ayurvedic Works is concerned, no evidence to that effect has been led nor any material pertaining to receipt of purchase of raw material has been filed to substantiate his claim. He states that apart from that the petitioner failed to produce any evidence regarding existence of any dispensary in the disputed shop except a magazine of the year 1949, as such, the Prescribed Authority recorded a finding of fact on the basis of evidence led before it that there was no dispensary in the shop, in dispute since long and at present as well, hence, the question of any 'goodwill' by the dispensary did not arise.
22. The counsel for the respondents also placed the findings of the Prescribed Authority that there is no evidence that the disputed shop was being used as Optician's shop as neither any prescription had been filed nor any register which ought to have been maintained, was produced before it and stated that in the circumstances, the Prescribed Authority recorded a categorical finding of fact that Sri Rishi Ram Govil, the son of the petitioner was only supplying spectacles in Zila Parishad, Netra Chikitsalaya, Bulandshahr against orders received from it.
23. It is asserted that the Prescribed Authority further held that Shop No. 372 was allotted to one Hibzul Rahman in vacant condition but the tenant made no efforts for allotment of the said shop and that there was no evidence on record to establish that the petitioner ever searched any alternative accommodation. It accordingly rejected the pleading of the petitioner that apart from the disputed shop, there was no other alternative shop in the market or at any other place.
24. Counsel for the respondents also urged that the tenant-petitioner has his own 13 shops at Khurja Bus Stand, but this fact was concealed by him and in paragraph 16 of his written statement he stated that he was owner of only four shops which Is evident from his affidavit (paper No. 30A), which was filed after production of evidence by the landlady, wherein he stated that he is owner of 13 shops at Khurja Bus Stand but added that no shop was vacant.
Conclusions:
25. The appellate court relying upon a decision rendered by Hon'ble the Apex Court in Raghvendra v. Firm Prem Machinery and Co. , has held that it is the choice of the landlady to choose the place for the business which is most suitable for him/her. He/she has complete freedom in the matter. Further relying upon a decision of Hon'ble Supreme Court in Gaya Prasad v. Pradeep Srivastava , the appellate court has further held that the need of the landlady is to be seen on the date of application for release and has recorded a clear finding of fact that nothing has been brought on record by which it can be ascertained that the landlady has any other shop which may be provided to her son, as such, need of the landlady is genuine and bona fide and the sale deeds which have been filed, do not construe that the shops are with the landlady.
26. The direction of this Court contained in the judgment and order dated 13.10.1998 in Civil Misc. Writ No. 9858 of 1998 regarding subsequent events were taken into consideration by the appellate court and after considering the documents ¦ available on record, it has recorded a categorical finding of fact in paragraph 15 of the judgment regarding comparative hardship holding that two shops constructed at Brahmaputra Complex, D.M. Colony Road, near Kala Ram Crossing, Bulandshahr are not suitable for the business of repair of arms.
27. The Hon'ble Supreme Court in Prativa Devi v. T.V. Krishnan. , has held that the landlord is the best Judge of her requirement and Courts have no concern to dictate the landlord as to how and in what manner she should live. It has further 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. Parushuramun (D) by L.Rs. v. Doraiswami (D) by L.R. . The crucial date for deciding bona fide need is the date of application as has been held in paragraphs 10 to 13 of the decision in Gaya Prasad v. Pradeep Shrivastava . The refusal by the tenant of an accommodation which was not in the locality suitable for tenant's business cannot be a ground for rejection of the release application as has been held in Mahendra Prakash v. IVth Additional District Judge, Jalaun at Orai and Ors.
28. When Prescribed Authority delivered Judgment, the son of the respondent-landlady was 20 years old and the shop was sought to be released for the purpose of settling him on business. Since then 20 years have elapsed and the son has attained the age of 40 years but has not been able to establish him as the disputed shop Is still in possession of the tenant as the litigation has not come to an end. He relied upon the finding of the Prescribed Authority that licence for repairing arms can only be obtained when there is vacant shop available for the same and in the absence of vacant shop, licence cannot be obtained. Thus, there can be no doubt that the need of the landlady is pressing and genuine.
29. It is clear from the judgment of the appellate court that the appellate court relied on the inspection report, which was conducted by Prescribed Authority which showed that there is no space in the shop of M/s. B. A. Shastra Bhandar for carrying on business of repair of arms by the son of the landlady and moreover, the partners were not at all inclined to induct her son is partner in the firm.
30. In paragraph 11 of the judgment the appellate court has discussed about shop purchased by Shamshuddin. the partner of the husband of the landlady on 16.6.1993 at Ansari Road Market. On the assertion of petitioner that son of the landlady could carry on business of repairs of arms from the said shop, the appellate court found that the sale deed was in favour of Sri Khursheed Ahmad and son of Sri Hibzul Rehman and Sri Shamshuddin son of Mohd. Bux. In paragraph 2 of the affidavit, paper No. 99Ka-2 filed by husband of the landlady, it has been asserted that the shop purchased by Sri Khursheed Ahmad and Sri Shamshuddin does not have any effect in the present case as Sri Shamshuddin had further executed a sale deed of his share in favour of mother of Sri Khursheed Ahmad. The petitioner-tenant did not controvert the averments made in the affidavit. He further submitted that another sale deed, Paper No. 106Ga has been executed in favour of Sri Irshad Ahmad son of Sri Imtiyaz Ahmad. This shop is in the tenancy of Pandit Shastra Bhandar and the shop is not vacant. The appellate court, therefore, concluded that the two shops are not available for Sri Shamshad Ahmad son of the landlady. As regards Imtiyaz Automobiles at D.M., Colony Road, Kala Aam, it appears from record that Sri Naushad All and Sri Irshad Ahmad, both major sons of Sri Imtiyaz Ahmad having their large families are carrying on their independent business from the said shop and as regards sale deed dated 11.5.1981, executed by Smt. Najeeran in favour of Smt. Habiban, the mother of husband of the landlady, Buddu (mother-in-law), Mohd. Shahid son of Sri Abdul Rashid, Sri Shamshuddin son of Mohd. Bux, a suit has been filed by Sri Rayeesuddin and by Sri Ramjan.
31. It appears that during the pendency of the said suit, Sri Habiban and Smt. Buddu died and on the basis of compromise, the property vested in the name of Smt. Habiban wherein Mohd. Shahid had 1/5 share and Mohd. Shahid had sold his share to Sri Chatar Singh who allowed to make construction on the said property to other partners. On completion of the construction, half portion was given to the other partners and rest half vested in Sri Chatar Singh. Later on Sri Chatar Singh did not agree to the compromise, as such. Suit No. 423 of 1997 was filed before the Civil Judge (Junior Division) Bulandshahr and Smt. Maqsoodan and Sri Shamshuddin had also filed Suit No. 485 of 1998 in regard to the said property. Both the suits are still pending.
32. The sale deed, paper No. 50Ga-l seems to have been executed by the landlady and her husband, as such, the said property is not in possession with them. The appellate court has given a finding of fact that the two shops at Brahmaputra Complex and D.M. Colony Road near Kala Aam crossing, Bulandshahr are not suitable for the purpose of repair of arms. The finding if the appellate court that shop for repair of the arms should be situated where there are arms dealers, the shop in dispute being hardly 100 metres from the shop of the husband of the landlady, it is most suitable for the business of the son of the landlady does not suffer from any perversity.
33. For the reasons stated above, the writ petition fails and is dismissed. The petitioner-tenant will vacate the disputed accommodation within three months from today after payment of arrears of rent, if any, and in case of failure on his part it will be open for the respondents landlords to evict the petitioner-tenant by aid of local police and arrears of rent will be recoverable as arrears of land revenue. No orders as to costs.