JUDGMENT Mukteshwar Prasad, J.
1. This writ petition has been filed' by the landlords whose release application filed under Section 21 (1) (a) of U. P. Act No. 13 of 1972 (hereinafter referred to as the 'Act') was allowed by the Prescribed Authority on 30.4.1998 and shop in question was released in their favour. However, Rent Control Appeal No. 123 of 1998 filed by the tenant was allowed by the respondent No. 1 on 23.8.1999. The petitioners have prayed for quashing the impugned judgment and order dated 23.8.1999 passed by respondent No. 1.
2. The dispute relates to a shop situate in Mohalla Gudari Bazar Chowk, Shahjahanpur which was let out to Vishnu Saran Agarwal, father of respondents No. 2 to 5 on a monthly rent of Rs. 400 excluding municipal taxes and electricity charges. Late Laxmi Narain Kapoor and his brothers were owners and landlords of the shop in question and the application was moved by Laxmi Narain Kapoor as 'Karta' of the joint Hindu family. He died on 22.11.1999 and as such, his only son Suneel Kapoor and his uncles filed this petition. The application was filed with the allegations that after completing his education (LL.B. course) Sandeep Kumar, aged about 22 years, son of Mool Narain Kapoor, wanted to start his business independently with a view to minimize economic burden on his parents and to augment the resources of the family. In view of increase in number of members of the family and the necessary expenses also, Sandeep Kumar was interested in starting his business in the disputed shop with a view to meet his requirement as well as requirement of the family. It was also alleged that the family suffered losses in the business and the family had a shop in which retail business of cloth was running. Moreover, new shops had been built in the market and were lying vacant and the tenant would get the shop on rent without any difficulty. Moreover, the tenant had purchased a shop at a distance of fifty steps only from the shop In question. It was also pleaded that the application was bona fide and in case, the shop was not released for doing business by Sandeep Kumar, the landlords would suffer more hardship than the tenant. A notice was also served on the tenant before filing the release application and the tenant replied the notice through his counsel.
3. The tenant filed a reply and contested the application mainly on the grounds, inter alia, that the shop in question was not owned by the joint Hindu family nor applicant's brother had a joint family. In fact, the landlords wanted to enhance the rent of the shop in question from Rs. 400 to Rs. 1000 per month and filed the application for release with a view to pressurize him. He was doing business of tailoring in the disputed shop for the last 25 years. He searched a shop in Mohalla Gudari Bazar which was adjacent to locality but no shop was built nor was lying vacant. It was further pleaded that Sandeep Kumar was a practicing lawyer and was assisting his father Mool Narain Kapoor who was a leading advocate of the district. Sandeep Kumar had no interest in starting business and had no experience and the need shown in the application was mala fide. The tenant further alleged that his family consisted of husband, wife and two children and the tailoring shop was the only source of his livelihood. The applicant's family had business of Sarafa, brick-kilns and cloth business and had good income. Sri Mool Narain Kapoor, father of Sandeep Kumar, earned Rs. 25,000 per month from legal profession and other business. In case, the shop was released in favour of landlords, the tenant would be rendered jobless and would not be in a position to maintain his family,
4. The applicant (Laxmi Narain Kapoor), Sandeep Kumar and his father Mool Narain filed their affidavits in support of the application for release. They filed notice, postal receipt and copy of the sale deed also. The tenant filed his own affidavit as well as affidavits of Ashok Kumar and Rajendra Kishore. He led documentary evidence also.
5. After having heard learned counsel for the parties and considering the entire material on record, learned Prescribed Authority found that requirement of the landlords was real and bona fide and the landlords would suffer more hardship in case the application was rejected and with these findings the application was allowed.
6. The tenant preferred an appeal under Section 22 of the Act, which was allowed and application for release was dismissed.
7. I have heard Sri B. B. Jauhari, learned counsel for the landlords petitioners and Sri Som Narain Mishra, learned counsel for the tenant-respondents and with their consent, the petition is being finally disposed of at this stage.
8. Counter and rejoinder-affidavits have been exchanged between the parties.
9. Learned counsel for the petitioners has urged that all petitioners are co-landlords of the shop in question and late Laxmi Narain Kapoor who was 'Karta' of the joint Hindu family and eldest among brothers had moved an application originally for the release of the shop with the allegations that shop in question was required for starting business by Sandeep Kumar, nephew of the applicant and son of Mool Narain Kapoor who was also impleaded as opposite party during pendency of the application before the Prescribed Authority. It was submitted that the original tenant (Bishnu Saran Agarwal) had a tailoring shop for the last more than 20 years and he purchased a shop in his life time in the same Mohalla where he could easily shift his business. Moreover, no effort was made by the respondents for searching other shop since 1991 when a notice was served on Bishnu Saran Agarwal or application for release was filed. Moreover, Sandeep Kumar has got no shop anywhere in the town where he could start his business. Therefore, the appellate court committed illegality in not appreciating the bona fide requirement of the shop by the landlords and erred in allowing the appeal filed by the tenant.
10. Reliance was placed by the petitioners' learned counsel on the following decisions.
1. Dr. K. C. Kapoor v. Additional District Judge, Kanpur Nagar and Ors., 2003 (2) ARC 70.
2. Smt. Ram Devi v. VIIIth Additional District Judge, Jhansi and Ors., 2004 (1) ARC 341.
3. Gaya Prasad v. Pradeep Srivastava, 2001 (1) AWC 834 (SC) : (2001) 2 SCC 604.
4. Ram Kumar v. IVth A.D.J., Kanpur and Ors., 2004 (4) AWC 2883.
11. On the other hand, learned counsel for the respondent has supported the impugned order passed by the appellate court and contended that Sandeep Kumar is not a member of the landlords' family and the Prescribed Authority did not discuss this point. The appellate court committed no illegality in rejecting the application for release. According to him, Sandeep Kumar, cousin of the applicant (Laxmi Narain) did not reside with him and the applicant took two contradictory stands against two tenants and as such need of the landlords was not bona fide. The Prescribed Authority considered the need of the shop for opening office by Sandeep Kumar as an advocate against the pleadings of the landlords. Reliance was placed on three decisions of the Supreme Court of India in Ashok Kumar and Ors. v. Sita Ram, 2001 (3) AWC 1997 (SC) : 2001 (2) ARC 1 ; Surya Dev Rai v. Ram Chander Rai and Ors, 2003 SCEBRC 512 and Ranjeet Singh v. Ravi Prakash, 2004 (2) AWC 1721 (SC) : 2004 (1) ARC 613.
12. I have considered the rival contentions of learned counsel for the parties and perused the record carefully. As mentioned above, the application for release was allowed by the Prescribed Authority and shop in question was released in favour of the landlords. But the order of Prescribed Authority was set aside by the appellate court and application was rejected. I find from perusal of the impugned judgment that the appellate court found that application by late Laxmi Narain Kapoor.alone was not maintainable and was not bona fide. The landlords took two contradictory stands in the petition and the learned Judge placed too much reliance on a copy of the notice allegedly served by Ram Kishore Kapoor to his tenant Ashok Kumar in which the landlord alleged that on account of family settlement the shop let out to Ashok Kumar had fallen into the share of Ram Kishore Kapoor. It is noteworthy that before filing application for release, Laxmi Narain Kapoor served a notice on the tenant (Vishnu Saran Agarwal) through his counsel Sri R. K. Sharma. It was clearly mentioned in paragraph 1 of the notice (C.A. 5 of counter-affidavit) that the notice was being sent by Laxmi Narain Kapoor as 'Karta' of joint Hindu family and the shop in question was owned by joint Hindu family. It is noteworthy that the notice allegedly sent on behalf of Ram Kishore Kapoor was also signed by Laxmi Narain Kapoor. In this view of the matter, the learned appellate court was not at all justified in drawing an inference that the applicant had sought release of the shop in dispute for the purpose of running business of his nephew (Sandeep Kumar) who was not a member of his family, It is noteworthy that all the brothers of Laxmi Narain Kapoor were impleaded in the application as opposite parties and this petition has also been filed on behalf of all the landlords (son of Laxmi Narain Kapoor and brothers of Laxmi Narain Kapoor).
13. I further find that respondent No. 1 committed error of law in appraisal of the evidence on record led by the partied and failed to arrive at correct conclusion. In my opinion, the finding recorded by the learned Judge suffers from perversity. It was clearly mentioned in paragraphs 4, 5 and 5A of the release application that Sandeep Kumar, aged about 22 years, had completed his higher education and wanted to settle his business with a- view to lessen the burden on his parents and settle his life and as such, he required the shop in question for opening the business. Laxmi Narain disclosed in paragraphs 6 and 10 of his affidavit in clear words that his nephew (Sandeep Kumar) wanted to start business and he was not interested in legal profession. Sandeep Kumar himself asserted in paragraphs 6 and 7 of his affidavit that he had no' charm and interest in legal profession and wanted to start his business for opening his livelihood. Similarly, Mool Narain Kapoor, father of Sandeep Kumar, asserted in paragraphs 6 and 8 of the affidavit that Sandeep Kumar was not interested in legal practice and wanted to settle his business in the shop in question. It is true that the precise nature of business to be settled in the shop was not disclosed in the application or in the affidavit but had been disclosed in the notice served on the tenants. It was clearly held by the Supreme Court in Raj Kumar Khaitan and Ors v. Bibi Zubaida Khatun and Anr., , that it was not necessary for the landlords to indicate the precise nature of the business which they intended to start in the premises. Even if the nature of business would have been indicated nobody could bind the landlords to start the same business in the premises after it was vacated. This judgment of the Supreme Court was followed by this Court in Dr. K. C. Kapoor's case (supra). In this view of the matter, I hold that the learned Judge committed illegality and his finding on this point is erroneous and is not sustainable. The appellate court found it fatal that the landlords had not disclosed the nature of the business to be started in the shop in dispute and held that the need of the shop by the landlords was not bona fide and real.
14. So far the question of comparative hardship is concerned, I find that admittedly the landlords have got a very big family and as such, they must have more income to maintain themselves properly. The respondents' father was having a tailoring shop in the disputed shop for the last 20 years and as such, they claimed that they have earned goodwill. The landlords filed a rejoinder-affidavit along with copy of the plaint of Original Suit No. 69 of 1999 filed by Alok Kumar Agarwal and Ors v. Manoj Kumar Gupta, for permanent injunction. I find from perusal of the plaint that on 29.6.1970 late Vishnu Saran Agarwal purchased a shop from Vijay Kumar and Ajay Kumar for a sum of Rs. 2,000 through a registered sale deed and got possession also and since then he was using his shop till his death. It means, late Vishnu Saran Agarwal had already acquired a shop in the same city where he could shift his business of tailoring. It is true that clause (a) to sub-rule (2) to Rule 16 provides that Prescribed Authority shall have regard to the length of years, the tenant has been carrying on his business in that building there would be lesser justification for allowing the application. In the instant case, the original tenant had a tailoring shop. The work of tailoring involves personal skill and expertise and tailoring shop could be opened anywhere else also provided one is skilled and expert in the job. Therefore, there was no question of earning goodwill in the disputed shop. The question of goodwill in the facts and circumstances of the case has no relevance. In this view of the matter also, the appellate court was not justified to hold that tenant-respondents would suffer more hardship than the landlords in case the application was allowed. The tenants who had already acquired a shop in the same city and that too since 1970, there was no justification to allow them to retain the shop in question.
15. For the reasons stated above, I hold that respondent No. 1 committed illegality in appraisal of the evidence on record led by the parties and the finding recorded against the landlords is perverse and is not sustainable. In my considered opinion, this petition, by the landlords, has merits and it must succeed and the impugned judgment (Annexure-6 to the writ petition) is liable to be quashed.
16. The petition succeeds and is hereby allowed. The impugned judgment (Annexure-6 to the writ petition) dated 23.8.1999 is hereby quashed and the judgment passed by the Prescribed Authority is restored and the application for release is allowed. The landlords are directed to pay a sum of Rs. 9,600 as compensation to the tenants and the tenant-respondents are directed to deliver vacant possession of the shop to the landlords within a period of two months from today.