IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 1902 of 2008 (M/S) Jitendra Sain and another ..……… Petitioners Versus Smt. Kamla Shah and others ……… Respondents. Mr. Raman Kumar Sah, Advocate for the petitioners. Mr. B.S. Adhikari, Advocate for the respondent No. 1. Hon’ble Tarun Agarwala, J. Heard Shri Raman Kumar Sah, the learned counsel for the petitioners and Shri B.S. Adhikari, the learned counsel for respondent No. 1. The landlord-opposite party No.1 filed an application for the release of the shop in question on the ground of personal use for herself and for her daughter. It was alleged that the shop was initially given to one Nathu Ram who was running a hair-cutting saloon. Upon his death, the petitioners Jitendra Sain and Surendra Kumar became the tenants of the shop. The landlord contended that they are not running the shop as they are gainfully employed and that they have sublet the shop to one Krishan Kumar who was running the shop in question. One of the opposite parties Jitendra Sain entered appearance and filed the written statement admitting that the original tenant was his father Nathu Ram and, upon his death, the tenancy devolved upon himself and upon his brother Surendra Kumar. The opposite party Jitendra Sain admitted that he was employed in the employment exchange and that Surendra Kumar, his brother, was working in B.E.L. at Kotdwar and was also staying there. The opposite party further admitted that his servant Krishan Kumar was running the hair cutting saloon on their behalf and that the rent was being paid by them. The prescribed authority, after considering the evidence, rejected the application of the landlord u/s 21 of the Act on the 2 ground that the release application was not maintainable and that a suit for eviction against the unauthorized occupant should be filed. The landlord, being aggrieved, filed the appeal which was allowed and the shop was released in favour of the landlord. The tenants, being aggrieved, has filed the present writ petition. Learned counsel for the petitioners submitted that the need of the landlord stood extinguished during the pendency of the proceedings, in as much as, the need for the daughter evaporated when she got married and started living with her husband in Delhi. Further, the learned counsel submitted that Krishan Kumar was working in his father’s shop and, upon his death, continued to work and if he was an unauthorized occupant, the release application was not maintainable and that the landlord should file a suit for eviction of the unauthorized occupant. Having heard the learned counsel for the parties and, having perused the record, the submission of the learned counsel for the petitioners is bereft of merit. Admittedly, the petitioners are the sons of the original tenant and, upon the death of the original tenant, they have become tenants in common. The release application was filed against them since it could only be filed against a tenant. The petitioners further submitted that they are paying the rent to the landlord and that Krishan Kumar was not a tenant nor was he paying the rent. In the light of the aforesaid, this Court is of the opinion that the application u/s 21 of Act was rightly instituted against the petitioners who are tenants of the landlord and who are paying the rent to the landlord. The lower appellate Court found that the need of the landlord was bonafide and that the shop was required for the need of the landlord and for the landlord’s daughter. To that extent, the finding given by the appellate court requires no interference in the writ jurisdiction. On the other hand, the Court below found that the petitioner Jitendra Sain was employed in an employment exchange and was not 3 running the shop nor was there any need to him to run the shop when he was gainful employed. In so far as the second petitioner Surendra Kumar is concerned, the Court below found that he was staying at Kotdwar where he is working in B.E.L. factory. This court also finds that he did not contest the matter before the Court below. In the light of the aforesaid, the Court below rightly found that there was no need or requirement for the petitioners to use the shop for their own purpose. In the light of the aforesaid, this Court is of the opinion that the need of the landlord was bonafide and genuine. The petitioners tenants had no requirement for the shop in question and, on the other hand, allowed the shop to be used by their servant Krishan Kumar who was admittedly not a tenant. In the light of the aforesaid, the Court is of the opinion that the bonafide requirement of the shop existed in favour of the landlord. On the other hand, there is hardship that would be caused if the application is released in favour of the landlord since both the petitioners are gainfully employed. In the light of the aforesaid, this Court does not find any error in the impugned order. The writ petition is dismissed. After the dismissal of the writ petition, the learned counsel for the petitioner prayed that some time may be given for the petitioners to vacate the premise and hand over vacant possession to the landlord/opposite parties. Considering the facts and circumstances that has been brought on record, the Court grants three months time to the petitioners to vacate the premise in question, and hand over the vacant possession to the landlord subject to the condition that the petitioners will file an affidavit before the Prescribed Authority within two weeks from today indicating that they will hand over the possession of the shop, in question, to the opposite parties within three months. In addition to the aforesaid, the petitioners 4 will deposit the arrears of rent, if any, payable within the same period. The amount so deposited can be withdrawn by the landlord. In the event, the affidavit and arrears of rent are not filed within the aforesaid period, it would be open to the landlord to proceed with the eviction of the petitioners in accordance with law. (Tarun Agarwala, J.) Dated 06.07.2010 Shiv