JUDGMENT S.U. Khan, J.
1. This is landlady's writ petition arising out of eviction/release proceedings initiated by her against original tenant Brahm Avtar since deceased and survived by respondent Nos. 3 to 8 on the ground of bonafide need under Section 21 of U.P. Act No. 13 of 1972 in the form of case No. 9 of 1985 on the file of prescribed authority Chandausi, district Moradabad.
2. Property in dispute is commercial in nature rent of which is Rs. 48/- per month. It had been taken on rent by the original tenant in connection with' his business of manufacturing buckets for rehat (a device of irrigation drawn by bullocks). It was stated in the release application that adjacent to the accommodation in dispute, the land admeasuring about 1200 square feet (40 feet by 30 feet) belonged to the petitioner and she intended to construct a new house in the said land as well as accommodation in dispute. In the adjacent land there existed some old structures in ruinous condition (khandhar). It was also pleaded that tenant had got another accommodation in which he had shifted his business completely and was keeping the accommodation in dispute locked. It was also stated that husband of the petitioner had retire and both of them intended to settle at Chandausi and to reside in the new house, which they proposed to construct for their residence. Map for the said purpose had also been got sanctioned by the local authority.
3. The tenant pleaded that in Chandausi itself a big house in the form of Kothi was available to the father in law of the landlady and she alongwith her husband and her father in law was residing therein.
4. Presiding Officer of the prescribed authority court himself inspected the accommodation in dispute and found that no manufacturing work etc. was being carried out from the accommodation in dispute since long. Prescribed authority, Chandausi through judgment j and order dated 10.11.1987, allowed the release application. Against the said judgment and order, original tenant filed appeal being R.C. Appeal No. 39 of 1987. During pendency of appeal father in law of the landlady died. It appears that earlier he had executed some will in favour of his son, the husband of the landlady, however during pendency of appeal on behalf of the landlady it was sought to be proved that the said will had been cancelled by another will and through the later will no share had been given to her husband. Landlady also stated / averred that during pendency of appeal tenant had purchased / acquired a property from Brijendra Kumar on 6.12.1988.
5. In Para 12 of its judgment, appellate court thoroughly examined the extent of accommodation and dimensions of different rooms in the flats prepared by development authorities and held that by that standard in the area of about 100 square meters already available to the landlady, a very good house could very well be constructed. The appellate court was utterly wrong in its approach. The Supreme Court in Sarla Ahuja v. U.I. Insurance Co. and S.N. Kapoor v. B.L. Khatri has held that tenant can not dictate the landlord as to how else he can squeeze his family in small portion and satisfy his need without disturbing him (tenant). It has also been held in the later authority that court can not impose its wisdom and suggest the means through which landlady can satisfy his need without disturbing the possession of the tenant.
6. The lower appellate court found that the second will stated to have been executed by the father in law of the landlady cancelling his earlier will was not proved and it was merely set up to create false need for the landlady.
7. In my opinion even if husband of the landlady has got a share in a house however big it may "be, which he has 'inherited from his father it can not lie a ground to reject the release application, The said house is to be shared by the two sons of deceased father in law of the landlady including her husband. In such scenario, if landlady wants to construct her own house to reside therein alongwith her (husband, the need can not be said to be not bonafide. Slightly, different considerations would have weighed with the court in case property in dispute had belonged to the husband of the lahdlady and he had filed release application. Concept of joint family is gradually loosening & losing its acceptability and it is not uncommon for two married brothers to reside separately alongwith their family members, particularly when there father is no more.
8. Prescribed authority on the basis of its own inspection had found that tenant was not carrying on any effective business from the accommodation in dispute. Appellate court did not: say a single word regarding inspection by the prescribed authority and it's finding based thereupon. However the appellate court held that tenants were doing their business in the disputed property. This fact was found as correct by the appellate court that tenant had acquired several other properties. Precise finding of the appellate court in Para 1.4 of its judgment is quoted below;-
but I summarize that ample evidence has been filed by the respondents that appellant (tenant) has acquired several properties and they had shifted their rehat balti manufacturing at Mohalla Khurja gate at Chandausi but the affidavit of Sri Bali this fact and the documents filed by the appellant regarding survey by the Sales Tax department discloses that their business continued in the disputed property. There is no other evidence that appellant had acquired any such property which is suitable for their business.
9. The finding is rather self contradictory.
10. The prescribed authority on the basis of its own inspection found that; no effective business was being carried out from the accommodation in dispute and it was being used only for storing some material in connection with the Ebusiness. It was brought on record and found as proved by the appellate court that tenant had acquired several other properties. If just for the sake of Sates Tax, address of an accommodation is given as the place of the business it does not mean that effective business is being carried out there from. It may be just for the sake of creating evidence. The tenant could not show anything that the other accommodations acquired by him were not suitable for his business. Appellate court found that tenant was actually carrying on his business from another accommodation in Mohalla Khurja gate still appellate court was charitable enough in holding without their being any evidence to that effect that the other properties acquired by the tenant were not suitable for his business.
11. Concepts of bonafide need and comparative hardship are distinct from each other. However to some extent they make enclaves into each other. To use the terminology of modern algebra they form intersecting sects and some area of the two overlap and is common. Under Rule 16(2)(b) of the Rules framed under the Act it is provided as under:
Where the tenant has available with him suitable accommodation to which he can shift his business without substantial loss there shall be greater justification, for allowing the application' (release application under Section 21 of the Act).
12. From the above it is quite clear that availability of quite suitable alternative accommodation to the tenant and almost total disuse of the tenanted accommodation by the tenant is not only decisive of comparative hardship but is also relevant for considering the bonafide need of. the landlord. In such scenario, bonafide need of the landlord is also to be construed more liberally. It is quite possible that in a particular case, need of the landlord if the tenant is actually using the building in dispute and has got no other accommodation available to him, may just fall short of, however the said need may be considered to be sufficient for allowing the application of release under Section 21 of the Act in case tenant is having another suitable accommodation and is not using the accommodation in dispute for any substantial purpose.
13. Accordingly I find that judgment and order passed by the appellate court is erroneous in law and liable to be set-aside.
14. Writ petition in therefore allowed. Judgment and order passed by the appellate court is set-aside. Judgment and order passed by the prescribed authority is restored.
15. Tenants-respondents are granted six months time to vacate provided that (1) Within one month from today they file an undertaking before the prescribed authority to the effect that on or before the expiry of period of six months, they will willingly vacate and handover possession of the property in dispute to the landlady-petitioner.
(2) For this period of six months which has been granted to the respondents to vacate they are required to pay Rs. 3000/- (at the rate of Rs. 500/- 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 landlady-petitioner.
16. It is further directed that in case undertaking is not filed and deposit of Rs. 3000/ is not made within one month before the prescribed authority then tenants shall be liable to pay damages at the rate of Rs. 1500/- per month since after one month till the date of actual vacation.
17. Similarly if after filing the aforesaid undertaking and depositing Rs. 3000/~ the accommodation in dispute is not vacated in six months then damages for use and occupation shall be payable at the rate of Rs. 1500/- per month since after six months till actual vacation.