JUDGMENT Sudhir Narain, J.
1. This writ petition is directed against the order dated 5.10.1990 passed by respondent No. 1 allowing the appeal and releasing the disputed shop in favour of landlord-respondent No. 2 under Section 21 (1) (a) of U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (in short the Act).
2. Briefly stated the facts are that an application under Section 21 (1) (a) of the Act was filed by respondent Nos. 2 to 6 claiming themselves co-landlords of the shop in question which was under the tenancy of Ram Kirti Saran. the husband of petitioner No. 1 and father of petitioner Nos. 2 and 3. It was alleged that the shop was needed to establish Mukesh Kumar son of Rameshwar Saran Sharrna, respondent No. 2 in business who is unemployed. The tenant contested the application and dented that the disputed shop was required by him for carrying on business. In fact, he is already carrying on business of sale and repair of electrical appliances in Mohalla Reti. The prescribed authority rejected the application on 5.11.1988. The landlord-respondents filed appeal against the said order. The appellate authority on reversing the findings recorded by the prescribed authority allowed the appeal vide impugned order dated 5.10.1990.
3. I have heard Sri K. M. Dayal, senior counsel for the petitioners and Sri A. K. Sand, learned counsel for contesting respondents.
4. The main thrust of the learned counsel for the petitioners is that the application was filed by all the co-landlords on 16.5.1984. The co-sharers had filed suit for partition registered as Suit No. 402 of 1983. The suit was decreed and final decree was prepared on 25.5.1990 during the pendency of the appeal. The disputed shop fell in the share of Radhey Shyam Sharma and Rameshwar Saran Sharma. the two co-sharers. Radhey Shyam Sharma. after the partition decree was passed, sold his half share in favour of Rameshwar Saran Sharma on 24.7.1991 and thereafter Rameshwar Saran Sharma became exclusive owner of the shop in question. It is contended that the petitioner were entitled to notice as provided under the first proviso to Section 21 (1) of the Act which provides that where the building was in the occupation of a tenant since before its purchase by the landlord, such purchase being made after the commencement of the Act, no application shall be entertained on the grounds mentioned In clause (a) unless the period of three years has elapsed since the date of such purchase and the landlord has given a notice in that behalf to the tenant not less than six months before such application and such notice may be given even before expiration of aforesaid period of three years. The appellate authority, relying upon the decision of this Court in Chettan Lal v. Additional District Judge. Aligarh and others, 1984 (1) ARC 166. wherein it was held that if a co-sharer purchases the property after partition, the said proviso is not applicable, rejected the contention of the petitioners that the application filed by the landlord was not maintainable. Sri Dayal, submitted that this case was based on the decision of the Supreme Court in V. N. Sarin v. Ajit Kumar, AIR 1966 SC 432, where the facts were entirely different. It was not a case of sale of the property by a co-sharer to another co-sharer but the Supreme Court considering the similar provision observed that where the property is partitioned and one of the co-sharers acquires the co-parcener properly on partition, it does not amount acquisition of property.
5. The proviso referred to above contemplates that no application shall be entertained on the grounds mentioned in clause (a) unless a period of three years has elapsed since the date of purchase and the landlord has given notice in that behalf to the tenant not less than six months before such application. The word used is 'entertain' and not 'Institution' or Tiling of the application under Section 21 (1( of the Act', in Martin and Harris Ltd. v. VIIIth Additional District Judge and others. JT 1997 (10) SC 32, the Supreme Court has drawn distinction between the words "Institution" and "entertain". The Court entertains an application when it applies its judicial mind and takes up the case for decision on merits concerning the grounds for release mentioned in clause (a) of Section 21 (1) of the Act.
6. The prescribed authority applies its judicial mind when it decides the case on the facts disclosed in the application and by that time of three years' period is elapsed, it will amount to entertaining the application after three years. The fact that one has become exclusive owner or co-owner of a property by transfer, surrender or relinqulshmcnt, that will hardly, in the meantime, be relevant. In V. N. Sarin v. Ajit Kumar, AIR 1966 SC 432. the Court considering the similar provision contained in Section 14(6) of Delhi Rent Control Act, 1958, observed that the intention of the Legislature was that the landlord should not be permitted to create a right to evict the tenant by adopting the device of transferring the property to a purchaser who may be able to prove his own Individual case under Section 14(1)(e) Para 10 reads' as under :
"Before construing Section 14(b), it may be permissible to enquire what may be the policy underlying the section and the object intended to be achieved by it. It seems plain that the object which this provision is Intended to achieve is to prevent transfers by landlords as a device to enable the purchasers to evict the tenants from the premises let out to them. If a landlord was unable to make out a case for evicting his tenant under Section 14(1)(e). it was not unlikely that he may think of transferring the premises to a purchaser who would be able to make out such a case on his own behalf ; and the Legislature thought that if such a course was allowed to be adopted, it would defeat the purpose of Section 14(1). In other words, where the right to evict a tenant could not be claimed by a landlord under Section 14(1)(e), the Legislature thought that the landlord should not be permitted to create such a right by adopting the device of transferring the premises to a purchaser who may be able to prove his own Individual case under Section 14(1)(e). It is possible that this provision may. in some cases, work hardship. because if a transfer is made by a landlord who could have proved his case under Section 14(1)(e), the transferee would be precluded from making a claim for the eviction of the tenant within five years even though he. in his turn, would also have proved his case under Section 14(1)(e). Apparently, the Legislature thought that the possible-mischief which may be caused to the tenants by transfers made by landlords to circumvent the provisions of Section 14(1)(e) required that an unqualified and absolute provision should be made as prescribed by Section 14(6). That, in our opinion, appears to be object intended to be achieved by this provision and the policy underlying it."
7. The landlord-respondents had filed the application in the year 1984 when the property was jointly owned by all of them and they had joined the application filed under Section 21(1)(a) of the Act; The sole ground taken in the application was that the shop in question was required to establish Mukesh Kumar Sharma in business in the shop in question. During the pendency of the case at the appellate stage, the suit for partition which was filed in the year 1983, was finally decreed on 25.5.1990 and under this decree, the shop in question fell in the share of Radhey Shyam Sharma and Rameshwar Saran Sharma. Radhey Shyam Sharma sold his half share to Rameshwar Saran Sharma by executing a sale deed. The application was filed on the allegation that the shop in question was required by Mukesh Kumar son of Rameshwar Saran Sharma. The same ground continued to exist even after the purchase of the share of Radhey Shyam Sharma by Rameshwar Saran Sharma. This purchase, hardly made any change in the application which was originally filed in the year 1984. The tenant-petitioners, in these circumstances, were not entitled to any notice as contemplated under the first proviso to Section 21 (1) (a) of the Act.
8. Learned counsel for the petitioners has further assailed the findings recorded by the appellate authority in regard to bona fide need to set up Mukesh Kumar Sharma in business by his father Rameshwar Saran Sharma. It is contended that Mukesh Kumar Sharma is already carrying on business in a shop situate in Mohalla Reti. This version has not been accepted by the appellate authority. It has been found that Rameshwar Saran Sharma has two sons, Arun Kumar and Mukesh Kumar. Arun Kumar is carrying on the business of sale and repair of electric appliances in a rented shop which is owned by one Vlrendra Kumar Agrawal. The prescribed authority did not accept this contention taking the view that Mukesh Kumar and Arun Kumar dtd not file affidavit in support of the version of their father. They filed affidavit during the pendency of the appeal. The appellate authority considering the material evidence on the record came to the conclusion that in the rented shop situate in Mohalla Reti. Arun Kumar alone is carrying on the business. The petitioners have not shown that Arun Kumar has some other shop where he is carrying on business. It is their case that they are carrying on their business Jointly in a shop in Mohalla Reti which is also a rented shop.
9. It is next contended that the appellate authority acted illegally in admitting the affidavits filed during the pendency of the appeal to fill up the lacuna in the case. The affidavits were filed as the prescribed authority had rejected the contention of the landlord that the sons of Rameshwar Saran Sharma-landlord had not filed affidavit in support of the version of their father. The law does-not require that the person for whose benefit the accommodation is required, must file affidavit and in absence of such affidavit, the version of the landlord cannot be accepted unless it is established that the person for whose benefit the need is set up has made averments contrary to the case set up by the landlord in the application. In Harbans Lal Cupla v. Ilnd Additional District Judge, Jaunpur and others, 1988 (2) ARC 458. it was held that if the landlady filed an application for release for the need of her son, the mere fact that the son of the landlady had not filed an affidavit cannot be a ground for rejecting the version of the landlady that the need for the son was not bona fide. Similar view was expressed in Mohd. Indris Mekran v. District Judge, Gorakhpur and others, 1996(1) ARC 463.
10. The last submission of the learned counsel for the petitioner is that Ram Kirti Saran, the tenant, was carrying on Sarafa business. After his death, it is being carried on by the petitioners. The business is being carried on for the last more than 21 years and they will suffer a greater hardship. The appellate-authority has not considered Rule 16 (2) la) of the Rules which provides that the greater the period since when the tenant opposite party, or the original tenant whose heir the opposite party is, has been carrying on his business in that building, the less the Justification for allowing the application. Rule 16 (2) is only a guideline which has to be applied on the facts of each case considering various other aspects. The hardship is to be considered keeping in view the fourth proviso to Section 21 (1) of the Act which provides that the prescribed authority shall take into account the likely hardship to the tenant from the grant of the application as against the likely hardship to the landlord from the refusal of the application and for that purpose shall have regard to such factors as may be prescribed.
11. The mere fact that a tenant is carrying on business for the last many years itself is not a ground for rejecting the application. In Shiv Dev Raj a. Additional District Judge and others, 1996 (1) ARC 559, the Division Bench of this Court considering the fourth proviso to sub-section (1) of Section 21 of the Act and the rules framed under the Act held that Rule 16 (2) does not lay down any particular method and procedure in accordance with which the prescribed authority has to decide the application for release, nor has it prohibited the authority from considering other relevant factors. The appellate authority has found that Mukesh Kumar has no shop to carry on business. On the other hand, the tenant is carrying on business for the last several years. They are earning amount and they could have made efforts to find out alternative accommodation. The application was filed in the year 1984 and about 15 years have elapsed and they could have made efforts to find out alternative accommodation. The law does not contemplate that unless an alternative accommodation is provided, the tenant cannot be directed to be evicted.
12. In view of the above the writ petition is dismissed with costs.