JUDGMENT Rakesh Tiwari, J.
1. This is landlady's petition challenging the validity and correctness of Judgment dated 12.9.2005, passed by Special Judge (S.C/S.T. Act) in Rent Control Appeal No. 115 of 2004 setting aside the judgment and decree dated 27.9.2004, pissed by the Prescribed Authority/Additional Judge, Small Causes Court, Allahabad in P.A. Case No. 21 of 1994.
2. Smt. Annapurna Gupta-petitioner (landlady) filed release application, registered as P.A. Case No. 21 of 1994 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') against Sri Dwarika Nath- respondent on the ground of bona fide need of the disputed accommodation comprising of three-doors shop for her three adult sons- S./Sri Sandeep Kumar, Pradeep Kumar and Sudeep Kumar.
3. The release application was contested by the tenant-respondent denying the plaint allegations on the ground that the petitioner-landlady owns a building bearing No. 365 in new Mumfordganj, Allahabad, which consists of several rooms where her adult sons can be settled in business. That apart, it was also alleged that the landlady has also other huge ancestral properties.
4. The release application remained pending since 1994. In the meantime, due to dire need of accommodation to establish her son in business, the landlady purchased a shop admeasuring 8" x 8' on the first floor of a building at Katra near Ram Mandir vide sale deed dated 14.8.1997, wherein one of the sons Sri Pradeep Kumar started business of sale of custom goods. As his business could not flourish he closed it and started a business of sanitary-ware in the name and style of 'Gupta Distributors' from the shop vacated by the heirs of Sri Bhagwati Saran Gupta, opposite party No. 2 in the release application. This shop together with the shop in the ground floor were sold out by the landlady for meeting the expenses for starting business of sanitary-ware by Sri Sandeep Kumar. She also entered into a compromise with the heirs of Sri Bhagwati Saran Gupta, opposite party No. 2 in the release application for release of her adjoining shop under their occupation, which was also subject-matter of dispute in P.A. Case No. 21 of 1994. The compromise was verified by the Prescribed Authority vide order dated 10.6.2003 and the said shop was released in favour of the landlady.
5. The respondent-tenant moved amendment application dated 2.9.2003, appended as Annexure-3 to the writ petition, before the Prescribed Authority to bring on record the factum of acquisition of the aforesaid shop on the first floor of a building in Katra, near Ram Mandir, which was objected by the petitioner-landlady by means of replica, appended as Annexure-4 to the writ petition, categorically stating that the shop on the first floor near Ram Mandir, Katra was purchased under compelling circumstances as Sri Sandeep Kumar was sitting idle. Since the said shop was on the first floor, the business could not flourish hence possession of adjoining shop had been taken from the tenant in pursuance of compromise in which business of sanitary-wares was being carried on by Sri Sandeep Kumar, her son.
6. The landlady also brought on record that her second son Sri Pradeep Kumar was sitting idle and, therefore she was compelled to take a shop on rent for Rs. 6,000 per month, who had to vacate the said shop on expiry of lease for three years and had taken another shop on rent in Colonelganj admeasuring 7' x 7' which has to be vacated after expiry of two years and, therefore, she was in dire need of the shop, in dispute. That apart, her third son Sri Sudeep Kumar after completion of his Engineering in Agriculture, requires a shop for sale of agricultural implements and machinery.
7. After considering the entire evidence available on record, the Prescribed Authority allowed the release application of the landlady vide Judgment and decree dated 27.9.2004, appended as Annexure-6 to the writ petition holding that the need of the sons of the landlady is genuine and bona fide and in case the release application is rejected, landlady will suffer greater hardship than the tenant. It was also held that the landlady has no other alternate non-residential accommodation available with her for setting up her sons in business whereas the tenant has got another accommodation bearing Municipal No. 61 Khushal Parvat, Allahabad and that the tenant did not make any effort to search out alternate accommodation during the pendency of the dispute.
8. Aggrieved by the judgment and decree dated 27.9.2004, passed by the Prescribed Authority, the tenant preferred Rent Control Appeal No. 115 of 2004, which has been allowed by the impugned Judgment and order dated 12.9.2005, appended as Annexure-7 to the writ petition passed by the Special Judge (S.C./S.T. Act), Allahabad.
9. Aggrieved against the Judgment and order of the appellate court, the petitioner-landlady has filed the instant writ petition.
10. Counsel for the petitioner claims that during the pendency of the proceedings, the tenant-respondent has acquired two non-residential accommodations bearing 116D/148D Meerganj, Allahabad and 114B/143B Meerganj, Allahabad. In this regard he drew the attention of the Court towards paragraphs 32 and 33 of the writ petition and contended that the specific averments made in the aforesaid paragraphs have not been denied by the respondent-tenant in the counter-affidavit.
11. He vehemently urged that the revisional court has recorded a perverse finding to the effect that (i) Sri Pradeep Kumar is already engaged in business and that the need of Sri Sudeep Kumar, third son of the landlady is not genuine and (ii) that shop No. 538/455, Old Katra near Ram Mandir on first floor is available to the landlady. He lastly urged that the need of the landlady is bona fide and she suffers greater hardship than the tenant, therefore, decree passed by the Prescribed Authority in her favour deserves to be upheld by this Court.
12. Per contra, counsel for the respondent-tenant contended that the disputed shop was allotted to the respondent-tenant in 1965 on a monthly rent of Rs. 60 wherein he is carrying on the business of sale of ready-made gold/silver ornaments and sale of gems/stones etc., in the name and style of 'Ratan Ornament House' from the disputed shop. He submits that some litigation is going on between the legal heirs of Smt. Angoori Devi landlady regarding ownership of the disputed building but the details of such litigation could not be brought on record due to ignorance and as soon as the details are available, the same shall be brought on record. He urged that the petitioner-landlady is owner of a number of properties in various markets like Mumfordganj, Colonelganj, Katra, Jawahar Squire, Chowk and Vivekanand Marg. He vehemently urged that the need set up by the petitioner-landlady is sham and fictitious.
13. I have given my thoughtful considerations to the arguments advanced by counsels for the parties and have also perused the record.
14. The petitioner, in his averments contained in paragraphs 32 and 33 of the writ petition, has specifically stated that the respondent-tenant has acquired two non-residential accommodations bearing Municipal Numbers 116D/148D and 114B/143B at Meerganj, Allahabad and has appended house tax assessment registers to fortify his claim as Annexures-10 and 11 to the writ petition. The respondent-tenant, in his counter-affidavit has not denied the averments contained in paragraphs 32 and 33 of the writ petition that he has acquired aforesaid two non-residential accommodations in the name of his son Sri Ashish Kumar Singh and daughter-in-law Smt. Aneeta Singh (wife of Sri Mahesh Kumar Singh). Thus, the petitioner has produced documentary evidence in support of his contention that the respondent-tenant is in possession of other alternate accommodations acquired by him and members of his family.
15. In reply to the paragraphs 32, 33 and 34 of the writ petition, the averments made in paragraph 27 of the counter-affidavit are relevant for the purposes of this case, which is as under:
27. That in reply to the contents of paragraphs 32, 33 and 34 of the writ petition, it may be stated that the alleged documents are self-explanatory. In fact the eldest son of the respondent has already separated and has no connection with the family of the respondent. It is for this very reason he is residing separately and his son and wife own separate properties. Mahesh Kumar Singh is paying taxes etc., independently.
16. If the version of respondent-tenant that his son has separate and has no concern with his family is accepted to be gospel truth, the natural question that arises is that has respondent made any publication in newspaper informing general public that he has no relation or concern with the affairs of his son? Admittedly, tenant and his sons are engaged in business and in connection with the same, they have to make transactions with different concerns. if any member of the family is separated, normally this fact is brought to the notice of general public by means of newspaper publication. No such publication has been brought on record and, therefore, the aforesaid plea of the respondent-tenant is unbelievable. Thus, in view of acquisition of alternate accommodation by the tenant, Explanation (i) to Section 21 (1) of the Act automatically applies to the facts of the instant case, which is as under:
Explanation.-In the case of a residential building:
(i) where the tenant or any member of his family who has been normally residing with him or is wholly dependent on him has built or has otherwise acquired in a vacant state or has got vacated after acquisition a residential building in the same city, municipality, notified area or town area, no objection by the tenant against an application under this sub-section shall be entertained.
17. The respondent-tenant having acquired alternate accommodations, he can easily shift his business of sale of ornaments to the shops at Meerganj, Allahabad.
18. The contention of counsel for the respondent-tenant that some litigation is going on between the legal heirs of Smt. Angoori Devi-landlady regarding ownership of the disputed building but the details of such litigation could not be brought on record due to ignorance has also no force as even if tenant succeeds to prove that litigation is going on for ownership of the disputed building between the members of family of the landlady, ultimately one of the members of landlady will be held to be the landlord of the accommodation. in dispute, from which he is sought to be evicted for the bona fide need of two other members of the family of the landlady. Thus, pleas of litigation amongst the members of the family does not help the tenant.
19. A perusal of judgment of the Prescribed Authority clearly shows that after discussion of entire material available on record, it came to the conclusion that the need of the landlady was genuine and bona fide. The relevant finding is as under:
Ik=koyh esa nkf[ky 'kiFk Ik=ksa ,oa nLrkostks lcwrks ds ihj'khyu ls Li"V gS fd izkfFkZuh ds rhuks cPpks es ls cM+k csVk foi{kh la[;k nks }kjk [kkyh dh x;kh nqdku esa O;ofLFkr gks ldrk gS A ysfdu nks vU; iq=ks esa ls nwljk iq= FkksM+s le; ds fy, vU;= nqdku ysdj vius O;olk; esa yxkrk gS ftlds fy, LFkkbZ :Ik ls nqdku dh t:jr gksxh A vxj ;g eku Hkh fy;k tk;s fd tgkW nqdku fy;k gS ogha O;ofLFkr gks tk;sxk A rc Hkh rhljs iq= lanhi o izkfFkZuh ds ifr dks O;olk; djus ds fy, mijksDr nqdku dh vko'drk okLrfod ,oa lnHkkoh gSA izkfFkZuh us vius 'kiFki= ds ek/;e ls crk;k gS fd foi{kh la[;k ,d dk edku la[;k 61 [kq'kgky ioZr es oSdfYid O;kikj gS gkykfd gkykafd foi{kh la[;k ,d us vius 'kiFki= es bl rF;k ls bUdkj fd;k gS A ;fn ;g eku Hkh fy;k tk;s fd foi{kh la[;k ,d [kq'kgky ioZr ij dksbZ O;olk; ugh gSA rks Hkh jhyht izkFkZuki= Ikus ds Ik'pkr foi{kh oSdfYid nqdku wus dk iz;kl djuk pkfg, Fkk A ,slk u djus ij rqyukRed dfBukbZ edku ekfyd ds Ik{k es ekuk tk;sxk tSlk fd ,0 vkj0 lh0 1995 ¼1½ Ik`"B 273] Jherh rkjk nsoh ds ckn es ekuuh; mPp U;k;ky; }kjk O;oLFkk nh x;h gS A ,slh ifjfLFkfr es foi{kh fdjk,nkj dh ;g ckr mfpr ugh ekuh tk;sxh fd mldk ifjokj cjckn gks tk;sxk rFkk Hkw[kks ejus yxsxk A fjyht izkFkZuk nkf[ky gks tkus ds Ik'pkr 10 oÔZ chr x;s gS og bekunkjh ls iz;kl djds oSdfYid nqdku izkIr dj fy;k gksrk A foi{kh la[;k ,d dh nqdku jru vkukZesUV gkml dh ,slh dksbZ [;kfr ugh gS fd ml nqdku dks fookfnr txg ls gV tkus ij foi{kh dks cgqr cM+k uqdlku gksxk Ik=koyh es nkf[ky 'kiFki=ks ,oa nLrkostks lcwrks ls Li"V gS fd jru vkukZVesUV gkml ,d lksus pkanh dh lk/kkj.k nqdku gS ftls foi{kh dgh Hkh gVk ldrk gS A lk[k ds uqdlku lEcU/kh foi{kh ds vfHkdFku izkfFkZuh dh dfBukbZ dh rqyuk derj gS A
20. On the other hand, the observation of the appellate court that need of landlady is not bona fide is clearly perverse and against the record. It has wrongly held that the need of Sri Sudeep Kumar has not been set up. In arriving at this conclusion, the appellate court has conveniently Ignored the following averments made In paragraph 2 of the replica by the landlady:
2- ;g fd izkFkhZ ds vU; iq= Jh lqnhi dqekj tks d`f"k baftuh;j ikl dj pqds gS mUgksus Hkh vius dks O;kikj es LFkkfir djus ds mn~ns'; ls d`f"k ds ikVZl o e'khu o vkStkj cspus dk O;kikj djuk pkgrs gS D;ksfd mUgs dksbZ ukSdjh ugh feyh gS A
21. The observation of the appellate court that in the absence of affidavit of Sri Sudeep Kumar, his need cannot be held to be bona fide. This finding of the appellate court is contrary to the law laid down by this Court in Mohammad Idris Mekiani v. District Judge, Gorakhpur and Ors. 1996 (1) ARC 463 : 1996 (2) AWC 2.107 (NOC), wherein it has been held that it is not necessary for the son to file his personal affidavit regarding need. In fact, there is no provision under the Act requiring a person to file his affidavit for personal need for whom release of shop or eviction of tenant from the accommodation is sought. It is actual and bona fide need of the landlord and comparative hardship which is to be seen by the Courts and not statement in this regard made on affidavit by such member of the family. It is only when the need is set up by the landlord for himself that he may be required to file an affidavit in support of his case of personal need which is not a requirement under the Act, particularly when the landlord seeks relief in respect of member(s) of his family.
22. The finding of the appellate court on the question of comparative hardship that shop No. 538/455 Old Katra near Ram Mandir on the first floor is available to the landlady is also perverse for the simple reason that the landlady in her replica has categorically pleaded that a small shop measuring 6' x 8' was purchased by her on the first floor near Ram Mandir, Old Katra as all her three sons were sitting idle. Sri Sandeep Kumar, the eldest son started business of custom goods from the said shop but the business could not flourish as the place was not suitable being on the first floor. The said shop in such circumstances, was sold out on 21.5.2003 with a view to utilize sale proceeds for arriving at compromise with Sri Bhagwati Saran Gupta-the tenant of adjoining shop. When Sri Bhagwati Saran Gupta vacated his shop, it was used by the eldest son Sri Sandeep Gupta for his business of sanitary-wares in the name and style of M/s. Gupta Distributors.
23. This clearly shows that even though she may be owning other properties but they are not available to her for establishing her sons in business or may not be suitable for being utilized for the purpose of business. Moreover, a perusal of following paragraph 8 of affidavit of Sri Sandeep Kumar contained in Annexure-9 to the writ petition shows that shop on first floor at Katra was also offered to the tenant, who refused to accept the same:
8. That the said shop is most unsuitable for the deponent's present or proposed business and has been taken as a temporary stop-gap measure. However, if the opposite party No. 1 feels it a suitable shop, he may accept it as an alternative for his 'closed business' and vacate the shop in question.
24. The Prescribed Authority, in his judgment, has also dealt with this offer made by Sri Sandeep Kumar to the tenant, who refused to accept the same, which is as under:
---;g nwdku izFke ry ij gksus ds dkj.k O;olk; dh n`f"V ls ykHkizn ugh gS A mlls fdlh rjg ls 600 o 700 :Ik;s ekfld vk; gksrh gS A mDr nqdku dks bl mn~ns'; ls fy;k x;k gS fd mls cspdj fookfnr nqdku esa mldk iSlk yxkdj O;olk; fd;k tk;s A foi{kh la[;k 1 pkgs rks mls fodYi ds :Ik esa ys ldrk gS vkSj fookfnr nqdku [kkyh dj ns A
25. However, the appellate court, in his judgment, has not, at all, considered this aspect of the matter and recorded an illegal and perverse finding which is in violation of the law laid down by Hon'ble the Apex Court in Saroj Kumar Das v. Arjun Prasad Jogani 1987 SCFBRC 432, wherein it has been held that availability of accommodation with the landlord is a relevant factor before holding that it can be utilized by him for his proposed need. If the shop purchased by the petitioner on the first floor could be utilized for good business, the respondent should have accepted the offer of the landlord but knowing well that it was not suitable for business purpose, the offer was not accepted.
26. In Iqbal Ahmad (Dr.) v. IInd A.D.J. Ballia and Ors. 2004 (2) ARC 505 : 2005 (1) AWC 769, it has been held that the tenant has got no business to dictate the landlord as to how he can squeeze his need in smaller portion. The words 'bona fide' need under Section 21 do not mean dire urgent or acute. Tenant, in that case, did not bring on record any evidence to show that he made any efforts to purchase or take on rent any alternate accommodation after filing of release application. On the other hand, he has acquired two commercial accommodations in Meerganj, Allahabad, where he can conveniently shift his business. It is an old business locality having several silver and goldsmith shops and ornament showrooms. Business of sale and purchase of gems/stones is also carried on in that market.
27. The landlady has set up a case of genuine need of the disputed accommodation for establishing her three sons in separate businesses. It is a right of every male member of the family to establish his own business and if they seek release of their properties from the tenant for that purpose, it cannot be said that they have no bona fide requirement.
28. As regards 'bona fide' need of the landlady, in my opinion, bona fide means genuinely and sincerely, i.e., in good faith, and in contradistinction to mala fide. It has been held by Hon'ble High Court in case of Jayant Kumar v. Prescribed Authority 1979 RCC 132, that it is not necessary that the landlord must stand in absolute need of building. If a person is doing business alongwlth his father, mother, brother or any other member of the family, then it cannot be held that his need to establish independent business is not bona fide. 1 am supported in my view by the decisions of this Court in Banshidhar v. IIIrd A.D.J., Aligarh 2000 (2) ARC 808 and Dwarika Nath Soni v. Bhagwan Das Gupta 2005 (2) ARC 739 : 2006 (1) AWC 590, wherein it has been held that every adult member of the family has a right to settle down in independent business. Such need cannot be rejected on the ground that the same is not bona fide.
29. For the reasons stated above, the writ petition succeeds and is allowed. Judgment and order dated 12.9.2005 in Rent Control Appeal No. 115 of 2004 (Annexure-7 to the writ petition) passed by Special Judge (S.C./S.T. Act) Allahabad is quashed. The respondent-tenant will vacate the disputed accommodation and handover its peaceful possession to the petitioner-landlady within two months from today and make payment of arrears of rent, if any, within the same period. In case, he fails to comply with this direction, he will be liable to be evicted by coercive process, in accordance with law, with the aid of local Police and the arrears of rent shall be recoverable as arrears of land revenue. No order as to costs.