JUDGMENT Rakesh Tiwari, J.
1. Heard counsel for the parties and perused the record.
2. The petitioner-landlord filed release application 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') for release of the shop situated in Mohalla Alinagar, Gorakhpur under the tenancy of the petitioner on the ground of bona fide need.
3. It was stated in the application for release that his second son who became physically handicapped in an accident as such, the disputed shop was required to settle him in the business of readymade garments. He also claimed that the respondent-tenant has a big house with shop at Diwan Bazar, Gorakhpur in which she is doing business, can shift her business there without any inconvenience. It was also averred that the tenant has another big house at Barhni district Siddharthnagar and her husband also has a house near D.A.V College Gorakhpur as well where the business can be shifted by her.
4. The respondent-tenant contested the release application by filing her written statement alleging that the release application has been filed with mala fide intention and that the second son of the landlord is, in fact, studying in B.Com (Final) in Sant Kabir Nagar and is not a handicapped person, as such, the need set up by the landlord is imaginary and not bona fide.
5. The prescribed authority while allowing the release application vide order dated 6.3.2002 recorded a finding that the need of the landlord is genuine and his comparative hardship is also greater than the tenant.
6. In Rent Appeal No. 1 of 2002 filed by the tenant, the findings of the prescribed authority were upset by the appellate court holding that the landlord could not prove that his second son had met with an accident and that son, who is studying and that he can do business with his elder brother, as such, comparative hardship of the tenant is greater. Aggrieved by the judgment and order passed by the appellate authority, the petitioner-landlord has invoked the writ jurisdiction by means of instant writ petition.
7. It appears from record that the tenant filed a Civil Suit No. 245 of 1999 before the Civil Judge (Junior Division) for injunction against the landlord praying that she may not be evicted except in accordance with law. In the suit, the respondent-tenant Smt. Shanti Devi appeared as witness as P.W. 1. She categorically stated in her cross examination that she was living in the new house with her husband and children constructed by him in Mohalla Diwan Bazar, Gorakhpur and that she was running her shop in the outer big room of the aforesaid house constructed by her husband. The relevant portion of her statement is as under:
---eSa o ifr nksuksa lkFk&lkFk jgrs gS eSa ifr o cPpksa ds lkFk u;s edku nhoku cktkj esa jgrs gSa nks dejk dhpu o vkaxu gS] ,d dejs esa eSa o esjs ifr o nwljs dejs esa cPps jgrs gSaA lM+d ds rjQ ,d dejk gS og cM+k dejk gS mldh yEckbZ pkSM+kbZ eSaus ukik ugha gS blh ckgjh deus ds cxy ls vUnj tkus ds xSyjh cuh gqbZ gS lM+d ds rjQ tks cM+k dejk gS mlesa pSuy xsV yxk gqvk gSA ;g cM+k dejk nqdku gS ;g edku tks vyhuxj esa gS og esjs ifr ds fjVk;j gksus ds ckn cuk gS esjs ifr dks fjVk;j gq;s 9&10 o"kZ gqvk gksxkA fookfnr nqdku tks eqgYykvyhuxj esa gh fLFkr gS mlesa eSa cSBrh gw¡ vkSj nqdku djrh gw¡ bl fookfnr nqdku dks [kkyh djus ds ckcr fMØh gqvk gSA fookfnr nqdku ds lkeus okyh xyh 5&6 fQV pkSaM+h gksxh----A
8. A copy of the plaint as well as the cross-examination/statement of the tenant has been appended as Annexures 3, 11 and 8 respectively to the writ petition.
9. After hearing the counsel for the parties and going through the record, it is apparent that the lower appellate court has misdirected itself and misread the evidence on record in allowing the appeal of the tenant and dismissing the claim of the landlord for the release of the shop, in dispute.
10. It is the specific case of the landlord in the release application that the disputed shop is needed for establishing his second son Sri Vikas in business since he is unemployed. This fact was reiterated in paragraph 20 of the replication which is as under:
---;g fd ;g dguk gS fd mlds edku esa IykLVj ugha gks ik;k gS vkSj dkjksckj ugha gks ldrk gS fcYdqy xyr o >wB gS foi{kh ds ,d edku esa diM+s dk dkjksckj vkSj ,d nwdku esa fdjkus dk dkjksckj gksrk gSA tgk¡ og lqpk# :I ls dkjksckj dj ldrh gS vkSj blds vfrfjDr Mh0 ,0 ch0 Ldwy ds ikl Hkh edku fLFkr gS ftlesa Hkh nqdku ekStwn gS tks [kkyh gS vkSj mlesa Hkh foi{kuh viuk nqdku dj ldrh gSA
11. The whole emphasis of the lower appellate court is on the fact that the release application was moved by the landlord for the need of his son who had become handicapped due to accident and that since he was studying and was having driving licence to drive Motorcycle, therefore, the lower appellate court has come to the conclusion that the need of the landlord is not genuine and bonajide. It completely ignored the evidence of record that the need set up by the landlord was to settle his son in the business for his livelihood and being his handicapped was not the sole basis.
12. It is on record that there are two other shops in her possession and the shop in her house near D.A.V. School is vacant. The contention of counsel for the respondent is that Courts must see that even if tenant has got other vacant shops, will it be convenient for him to shift there which is irrelevant in view of Explanation (i) to the fourth proviso to Section 21(1)(a) of the Act 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 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-
hall be entertained.
13. The aforesaid Explanation (i) applies with full force in the facts and circumstances of the present case as it is settled law by catena of decisions that release application under Section 21 of the Act can be filed for residential as well as non-residential purpose. Therefore, once a tenant has acquired in vacant state the possession of a shop for his use, morally he must inform the landlord about such acquisition and vacate the tenanted accommodation except with the express consent of the landlord in writing to permit him to continue, otherwise, if a tenant is permitted to continue to occupy the tenanted accommodation even after acquiring vacant shops or having his own shops in which he is doing business, it will defeat the very novel aim and object of the Act for which it has been framed.
14. While passing order of release of the accommodation in dispute under Section 21(1)(a) of the Act, Court has also to determine bona fide need and comparative hardships of the parties but as the tenant has acquired three vacant shops, in two of which she is doing her business and the third one is still vacant, question of any hardship, if she is evicted from the tenanted shop, does not arise.
15. Since it has come on record that the tenant-petitioner in her statement in Suit No. 245 of 1999 filed by her has made a categorical statement that apart from the shop, in dispute, she is doing business in the outer big room of the newly constructed house by her husband where she is living with her family, it cannot be said that she will suffer hardship in shifting her business from the disputed shop.
16. That apart, even if the finding of the appellate court that second son of the landlord is studying and is not a handicapped person, is taken to be a correct, still the fact cannot be overlooked that every member of the landlord's family has right to employ himself in independent business. Merely because the member of the family for whose benefit release application is moved by the landlord is studying or who is handicapped does not, in any manner, extinguish the bona fide need of the accommodation or shop for such family member.
17. It is a healthy trend these days that the students are earning while studying and in this manner are helping their parents by lessening the burden of expensive education on them. It is also not unheard that handicapped persons also employ themselves in service/business. They also have self-respect and do not like to be dependent upon others.
18. In my considered opinion and for the reasons stated above, the need of the landlord is genuine and bona fide and his comparative hardship is greater than the petitioner-tenant. The order of the revisional court is perverse and against the material on record and is liable to be set aside.
19. For the reasons stated above, the writ petition is allowed. The impugned judgment and order dated 28.2.2005 passed by the appellate authority is quashed. The petitioner will handover peaceful possession of the accommodation, in dispute, to the landlord within two months from today and make payment of arrears of rent, if any within the same period. In case, the disputed accommodation is not vacated or arrears of rent are not paid within the stipulated period, the tenant-petitioner will be evicted by assistance of Police and the arrears of rent, if any, shall be recoverable as arrears of land revenue. No order as to costs.