JUDGMENT Dilip Gupta, J.
1. The tenant has filed this petition for setting aside the judgment and order dated 10th August, 2007 by which the Appeal filed by the landlord under Section 22 of the U.P. Urban Buildings (Regulation of Letting, Rent & Eviction) Act, 1972 (hereinafter referred to as the 'Act') was allowed and the tenant was directed to vacate the shop in dispute within six months.
2. The records of the writ petition indicate that the landlord filed an application under Section 21(1)(a) of the Act for eviction of the tenant from the shop in dispute on the ground that he was an Advocate and he bona fide required the premises for his office. The tenant filed a reply to the application and asserted that, in fact, the landlord was not engaged in the practice but was actually doing the business of 'Ghee' and did not require the disputed shop at all. It was further asserted that the landlord had got vacated the adjoining shop and had thereafter let it out in 1991 and 1995 and as such his need was not bona fide.
3. The Prescribed Authority by a detailed order dated 1st February, 2000 rejected the application filed by the landlord. It recorded a categorical finding that the landlord was not engaged in practice in the Civil Court and that he was actually doing business of 'Ghee' under the name of 'Indra Jai Store'. It also found as a fact that the landlord had obtained possession of the adjoining shop in the year 1991 from the heirs of Bhikki Ram on the basis of the proceedings taken by the landlord under Section 21(1)(a) of the Act. The Prescribed Authority did not accept the plea of the landlord that he had not obtained possession of the shop in the year 1991. This finding was recorded on the basis of Paper No. 33-Ga which was the application filed by the landlord wherein he had himself mentioned in paragraph 2 that he had obtained possession from the heirs of Bhikki Ram in 1991. The Prescribed Authority found that in the same document that the landlord had also stated that thereafter in view of the request made by Sanjay Agarwal he was inducted as a licensee. The Prescribed Authority also placed reliance upon the document 44-Ga signed by the landlord and Sanjay Agarwal which indicated that Sanjay Agarwal had given possession of the shop to the landlord on 17th November, 1995. The Prescribed Authority, therefore, concluded that the landlord had obtained possession of the shop once in the year 1991 and thereafter in November, 1995 and, therefore, if there was no bona fide need of the landlord then he would not have let out the shop again. The Prescribed Authority also noticed that the application under Section 21(1)(a) of the Act was filed by the landlord on 7th October, 1995. The Prescribed Authority, therefore, rejected the application filed by the landlord.
4. The Appellate Court while examining as to whether the landlord was actually engaged in practice found that he has filed certain Vakalatnamas in cases after the release application was filed and from this concluded that he was engaged in practice. Regarding the adjoining shop the Appellate Court observed that it was not for the tenant to dictate terms to the landlord regarding the place from where he should do his practice. It, therefore, found that the landlord bona fide required the shop. The Appellate Court also found that the landlord would suffer greater hardship in the event the application was rejected.
5. I have heard Sri A.K. Gupta learned Counsel appearing for the petitioners and Sri Pankaj Agarwal learned Counsel appearing for the respondent.
6. Learned Counsel for the petitioners submitted that the Appellate Court fell in error in holding that the landlord was actually engaged in practice. He, however, submitted that in any view of the matter, the need of the landlord cannot be said to be bona fide since the adjoining shop was available to him in 1991 and also in 1995 immediately after the filing of the release application from where he could do his practice and, therefore, in such circumstances the need of the landlord cannot be said to be bona fide and in support of his contention he has placed reliance upon the decisions of this Court in Gauhar Hasan v. Addl. District Judge, Saharanpur and Ors. and in Badri Prasad and Ors. v. Munna Lal and Ors. 1981 ARC 629.
7. Learned Counsel for the respondent, however, submitted that the need of the landlord to establish his chamber is bona fide as has been held by this Court in Sardar Kulwant Singh v. VIth Additional District Judge, Saharanpur and Anr. 2007 (66) ALR 498.
8. Thought there is much to be said on the finding recorded by the Appellate Court that the landlord was engaged in practice, but the petition is likely to succeed even on the other ground namely that the adjoining shop was available to the landlord for meeting out the alleged need set up in the release application and, therefore, the need of the landlord was not bona fide.
9. The Prescribed Authority after examination of the various documents on record, particularly the applications filed by the landlord himself, came to the conclusion that the adjoining shop was available to the landlord first in the year 1991 and then in November, 1995. This inference has been drawn by the Prescribed Authority on the basis of Paper Nos. 43 Ga and Paper No. 44 Ga. The Prescribed Authority, therefore, concluded that after filing of the release application on 7th October, 1995 the landlord came in possession of the adjoining shop in November, 1995. The Appellate Court has not reversed this finding and all that has been observed is that it is not for the tenant to dictate to the landlord the place from where he should open his office. The position that emerges, therefore, is that the landlord had available with him the adjoining shop in November, 1995. There is no averment in any of the pleadings of the landlord that the adjoining shop was not suitable for the purposes of opening his chamber.
10. In Gauhar Hasan (supra) this Court observed:
It is settled law that if a landlord has more than one accommodation the landlord cannot be compelled to choose one particular accommodation and to apply for the release of the same and it is always open to the landlord to select any of the accommodation for his own use. This is not an absolute proposition. The choice which has to be exercised by the landlord cannot be an arbitrary choice. The choice has to be based on reasonable grounds. It depends upon the facts and circumstances of each case. In the instant case, as I have already observed above, the portion of the adjacent shop which is as large as the shop in dispute itself is lying vacant. In such a situation respondent No. 3 could have reasonably applied for release of the portion of the adjacent shop, which was lying vacant and not apply for the release of the shop in dispute by dislodging a tenant, who is already carrying on business in the said shop. The observations, made, to the contrary in the impugned order are, therefore, not sound in law.
11. In Badri Prasad (supra) this Court also observed:
...Likewise it cannot be disputed that the fact that some accommodation came in possession of the landlords during the pendency of the release application which was stated to be sufficient or at least partly sufficient to meet their needs, is a material fact for the consideration of the question as to whether the need of the landlord was bona fide.
12. In Gulabbai v. Nalin Narsi Vohra and Ors. AIR 1991 SC 1760 an order of eviction was passed against the tenant on the ground of bona fide need of the landlord. Subsequent event of shifting family of the landlord to a spacious bungalow constructed by him during the pendency of appeal, was considered by the Supreme Court.
13. In Hasmat Rai and Anr. v. Raghunath Prasad the Supreme Court held that when an eviction was sought on the ground of personal requirement of the landlord, such requirement must continue to exist till the final determination of the case and it was observed:
It is now convertible that where possession is sought for personal requirement, it would be correct to say that the requirement pleaded by the landlord must not only exist on the date of the action but also subsist till the final decree or order for eviction is made. If in the meantime events have crept up which would show that the requirement of the landlord is wholly satisfied then in that case his action must fail and in such a situation it is not incorrect to say that such decree or order for eviction is passed against the tenant, he cannot invite the Court to take into consideration the subsequent events.
14. These decisions of the Supreme Court were followed by the Supreme Court in Kedar Nath Agrawal (Dead) and Anr. v. Dhanraji Devi (Dead) by Lrs. and Anr. 2004 ARC SCW 5789 and Ram Kumar Barnwal v. Ram Lakhan 2007 AIR SCW 3250.
15. In view of the aforesaid decisions, it has to be held that the need of the landlord was not bona fide as the alleged need set up by him could well have been satisfied by retaining the adjoining shop.
16. Learned Counsel for the respondent has placed reliance upon the decision of this Court in Sardar Kulwant Singh (supra). In the said case the Court found that the landlord who was an Advocate was having his chamber in a room measuring 7 feet x 9 feet which was found to be insufficient. It was also found that this chamber was being occupied by the landlord as a tenant. This decision does not help the respondent because in the present case, what has been found is that the adjoining shop was available to the landlord for his alleged need and it is not the case taken up by the landlord that the accommodation available in that shop was insufficient to meet his requirement. In fact, even the Appellate Court has merely observed that it is not for the tenant to dictate to the landlord the place where he should open his chamber.
17. It is, therefore, clear that the landlord did not bona fide require the shop in dispute. The Appellate Court, therefore, committed an illegality in holding that the landlord bona fide required the shop in dispute.
18. The writ petition, therefore, succeeds and is allowed. The judgment and order dated 10th August, 2007 passed by the Appellate Court is set aside and that of the Prescribed Authority is restored.