JUDGMENT S.U. Khan, J.
1. Heard learned Counsel for the parties.
2. This is landlord's writ petition arising out of eviction/release proceeding initiated by him against tenant-respondent No. 2 District Cooperative Development Federation Limited, Saharanpur on the ground of bona fide need under Section 21 of U.P. Act No. 13 of 1972 in the form of P.A. Case No. 59 of 1980. Accommodation in dispute is a shop rent of which is Rs. 100 per month. In the release application the need set up was for establishing the chamber of landlord's son, who was practising on taxation side. The shop is situate at Railway Road, Saharanpur. On the backside of the shop in dispute, at a short distance therefrom house of landlord is situate which is stated to be quite big. However, according to the learned Counsel for the landlord the passage from the main road, i.e., Railway Road to the landlord's house is narrow and congested. Tenant has got another building in its tenancy occupation on the same road, i.e., Railway Road on which accommodation in dispute is situate. However, according to the tenant the other building is situate on first or second floor and is used as residence by its employees. Tenant further asserted that in the accommodation in dispute it was having its retail out let. Prescribed Authority/IInd Additional Munsif, Saharanpur allowed the release application on 1.1.1990. Against the said order tenant respondent No. 2 filed R.C. Appeal No. 919 of 1990. VIth A.D.J. Saharanpur through judgment and order dated 6.5.1993 allowed the appeal and set aside the order of the prescribed authority dated 1.1.1990. This writ petition is directed against the aforesaid judgment of the appellate court.
3. Earlier also release application on different grounds had been filed in the year 1977 which was rejected and appeal against the said order was also dismissed.
4. The tenant mainly pleaded that landlord had several businesses in which he could accommodate his son and further he had several other properties to fulfil his alleged need. Initially tenant also denied that landlord's son was practising as advocate at taxation side. However, later on the said stand was given up by the tenant.
5. Supreme Court in Sushila v. A.D.J. AIR 2006 SC 780 and A. Kumar v. Mushtaqeem , has held that no landlord or any adult member of his family can be compelled to participate in family business and every adult member of the landlord's family particularly male members have got right to establish independent business. Absolutely no fault can be found if the son of a businessman opts to practice as an advocate.
6. In respect of other properties the explanation of the landlord was that firstly, they were not in his exclusive ownership possession and he was only co-sharer in the said properties and secondly, the said properties were being used for other businesses by the landlord.
7. It was vehemently argued on behalf of the tenant that shop, which was vacated by Milap Machines was available to the landlord to establish the Chamber of his advocate son. In this regard much reliance was placed upon an affidavit of real brother of the landlord filed In another release case, filed by him against his tenant Mayer Machinery Mart, copy of which affidavit has been annexed as Annexure-11 to the counter-affidavit. In the said affidavit it was stated that the shop in which Milap Machinery Mart was being run, had fallen into the share of Kulwant Singh, petitioner in the instant writ petition and one Shrimati Gurmeet Kaur, and it was in their possession. According to the landlord the said shop was being used for business purpose. In para 27 of the writ petition it was clearly stated that the business of Milap Machinery Mart had come to an end but another business had been started in the said shop. In para 38 of the counter-affidavit, the said assertion was not denied. The only thing which was stated was that the said property was in actual occupation of the petitioner as all the partners had left the business and the premises was in exclusive possession of the petitioner.
8. A landlord cannot be compelled to curtail his business in order to accommodate his son so that tenant may not be disturbed.
9. As far as the residential house of the landlord is concerned, the passage leading from the main road to the said house was stated to be narrow and crowded. Moreover, the office/chamber of an advocate if situated on a main road is certainly of great advantage in comparison to office in a narrow lane not having proper access. One may like it or not but the fact is that profession of advocacy has also become commercial of late, particularly on taxation side.
10. The main point on which the appellate court reversed the judgment of the prescribed authority and found the need of the landlord's son satisfied is that the said son was having his office in a small room of 7 feet x 9 feet at another place. According to the landlord the said office was on licence and according to the tenant it was on rent. Appellate court accepted the case of the tenant. An alternative accommodation available to landlord either as a licensee or as a tenant is no ground to reject the release application vide Mrs. M.E. Kshirsagar v. Traders and Agencies and G.K. Devi v. Ghanshyam Das . Moreover, a room of 7 feet x 9 feet cannot be said to be sufficient for advocates chamber. The fact that the son of the landlord was having his chamber in another's accommodation either as licensee or as tenant fully proved that the need for establishing chamber was quite bona fide and landlord was not having any suitable accommodation for the said purpose. It is important to note that tenant himself asserted with great force that the son of the landlord was having his chamber in another accommodation of which he was tenant. This clearly amounted to admission of the facts that landlord's son was actually practising as an advocate and was not having any accommodation of his own to establish Chamber and the chamber was being run in a very small accommodation.
11. The Supreme Court in V. Radhakrishnan v. S.N.L. Mudaliar , has held that if the release application is filed for the need of the son, then the property in occupation and use of the landlord is not relevant and cannot be taken into consideration. Similarly in A.G. Nambiar v. K. Raghavan , it has been held that the other alternative accommodation available with the landlord which is not suitable for the business proposed to be established by the landlord is not relevant and cannot be taken into consideration.
12. In Chandrika Prasad (Dead) through L.Rs. and Ors. v. U.K. Verma and Ors. , the Supreme Court has held that a less suitable accommodation available to the landlord is no ground to reject the release application in respect of tenanted accommodation which is more suitable. In the said case the landlord had sought release of the tenanted commercial accommodation, which was situate at main road for setting up the clinic of his doctor son-in-law. The tenant pointed out that the father of the doctor was having a vacant accommodation in which clinic could be established. The said vacant accommodation was situate in a lane. On the same principle landlord cannot be compelled to establish the chamber of his advocate son in the residential house which is away from the main road and connected with narrow congested passage with the main road.
13. Accordingly I hold that the finding of the appellate court that the need of the landlord was not bona fide is utterly erroneous in law. The facts found by the appellate court clearly proved the bona fide need. The appellate court completely misconstrued the true meaning and import of bona fide need. The Supreme Court in Shenoy's case, in Siddalingama v. M. Shenoy , has held that the Rent Control Acts are basically meant for the benefit of the tenant and provision of release on the ground of bona fide need is the only provision which treats the landlord with some sympathy.
14. As far as the question of comparative hardship is concerned, tenant himself pleaded that its business was of quite a large scale. It could, therefore, purchase or take on rent other accommodation. Tenant did not even make any effort in that direction. Nothing was brought on record in that regard by the tenant. The Supreme Court in B.C. Butada v. G.R. Mundada , has held that after filing of release application it is utmost essential for the tenant to make efforts either to purchase or take on rent other accommodation otherwise question of hardship may be decided against the tenant.
15. The appellate court has given a very strange finding in this regard. Appellate court held that for the landlord, getting possession of the property in dispute was merely a matter of convenience, while the tenant actually needed the same. Tenant is having a very good business for several decades. Landlord's son has got no proper accommodation for establishing his chamber. The balance of hardship therefore tilts heavily in favour of the landlord.
16. The Supreme Court in G.C. Kapoor v. N.K. Bhasin , reversed the concurrent findings of all the three Courts, i.e., the prescribed authority, appellate court/District Judge and the High Court on the question of bona fide need and comparative hardship and outrightly allowed the release application of the landlord holding that the findings of all the three courts below were erroneous in law.
17. Accordingly writ petition is allowed. Judgment and order passed by the appellate court is set aside and judgment and order passed by the prescribed authority is restored.
18. Tenant respondent is granted six months time to vacate provided that:
(i) Within one month from today it files an undertaking before the prescribed authority to the effect that on or before the expiry of period of six months it will willingly vacate and handover possession of the accommodation in dispute to the petitioner-landlord.
(ii) For this period of six months which has been granted to the tenant to vacate it is required to pay Rs. 12,000 (at the rate of Rs. 2,000 per month) as damages for use and occupation. This amount shall also be deposited within one month before the prescribed authority and shall immediately be paid to the petitioner-landlord.
19. In case of default in compliance with either of these conditions, tenant respondent shall be evicted after one month through process of Court.
20. It is further directed that in case undertaking is not filed or Rs. 12000 are not deposited within one month then tenant respondent shall be liable to pay damages at the rate of Rs. 3,000 per month since after one month till the date of actual vacation.
21. Similarly, if after filing the aforesaid undertaking and depositing Rs. 12,000 the accommodation in dispute is not vacated after six months then damages for use and occupation shall be payable at the rate of Rs. 3,000 per month since after six months till actual vacation.