IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 3185 of 2001 (M/S) Hari Singh S/o Late Trilok Singh R/o Railway Bazar Haldwani, District Nainital. ………Petitioner Versus 1. IIIrd Additional District Judge Nainital. 2. Prescribed Authority, Haldwani District Nainital. 3. Sri Ghan Shyam Das S/o Sri Khoob Chandra R/o Railway Bazar, Haldwani District Nainital, at present running the business as in the name and style Of GHAN SHYAM TAILORING HOUSE Meera Marg, Haldwani, Nainital. ….Respondents. Shri B.D. Pande, Advocate for the petitioner. Shri Chandramauli Sah, Advocate holding brief of Shri Rakesh Thapliyal, counsel for respondent No. 3. Hon’ble Prafulla C. Pant, J. By means of this writ petition, moved under Article 226 read with 227 of Constitution of India, the petitioner has sought writ in the nature of certiorari quashing the judgment and order dated 18.02.1995, passed by IIIrd Additional District Judge, Nainital, in Rent Control Appeal No. 05 of 1993, whereby said court has set aside the order passed by the Prescribed Authority, releasing the shop in question in favour of the landlord. 2 2. Heard learned counsel for the parties and perused the affidavits, and papers on record. 3. Brief facts of the case are that the petitioner is landlord of a shop, situated in Railway Bazar, Haldwani, which was let out to respondent No. 3-Ghanshyam Das. Petitioner (landlord) was a Contractor and he had to leave his business due to loss in said profession. It is pleaded by the landlord that his eldest son- Nagendra Singh, who could not perform well in his studies is to be settled in some business. And to settle the eldest son in business, the petitioner has sought release of the shop in occupation of respondent No. 3, by moving an application under Section 21 (1) (a) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (for short U.P. Act 13 of 1972). It is alleged by the petitioner in his release application that the respondent No. 3 has three shops in Haldwani and he can conveniently shift his business to the rest two shops. The landlord has further pleaded that there are six members in his family and the need of the family members is growing day by day. He has further pleaded that his eldest son wants to start business of General Merchant and Confectionary in the shop in question. 3 4. The respondent No. 3 contested the release application. However, he admitted the tenancy. He also admitted that the petitioner is his landlord. However, as to the rest of the contents of the release application, the same are denied. It is pleaded by respondent No. 3 that the landlord has a shop No. 268 in Lala Bazar, Almora, wherein he sells vegetables, apart from doing the business as Contractor. It is denied that landlord has suffered loss in the business as a Contractor. It is further denied that the landlord has a need to settle his eldest son Nagendra Singh. According to respondent No. 3, Nagendra Singh is studying. It is also pleaded by respondent No. 3 that the landlord runs his business at Haldwani and Almora. He has five shops in Ambika hotel and he is earning Rs. 25,000/- per annum as rent from the shops. It is denied by respondent No. 3 that he has three shops in Haldwani. It is pleaded by him that his comparative hardship is greater, as against the landlord, and the application for release is liable to be rejected. It is also pleaded that earlier a shop, in which business used to run in the name and style of Vijay Cut Piece Store, used to run, was got vacated by the landlord and let out to another person. 5. The Prescribed Authority after taking evidence in the form of affidavits, and hearing 4 the parties, found that the need of the landlord is bonafide and genuine. The Prescribed Authority further found that there is greater hardship to the landlord as against the plaintiff. Consequently, the Prescribed Authority, vide its order dated 03.05.1993, allowed the release application and directed the respondent No. 3 to vacate the shop in question within a period of 30 days. Aggrieved by said order dated 03.05.1993, passed by Prescribed Authority, Haldwani, in Rent Control Case No. 01 of 1989, the respondent No. 3 preferred Rent Control Appeal No. 05 of 1993, before the appellate court. After hearing the parties, said appeal was allowed by IIIrd Additional District Judge, Nainital, vide impugned judgment and order dated 18.02.1995. The appellate court set aside the order, passed by the Prescribed Authority and dismissed the application, moved by the landlord under Section 21 (1) (a) of U.P. Act 13 of 1972. Hence this petition. 6. It is settled principle of law that in the matters of release of a building under Section 21 (1) (a) of U.P. Act 13 of 1972, the landlord has to establish following two points:- 1. Bonafide need of the building, and 2. Comparative greater hardship in his favour, as against the tenant. 5 7. The landlord has sufficiently established on record that his son Nagendra Singh, was not good in studies. He failed in 12th class and as such, he is to be settled in business. Said fact established, clearly shows bonafide need of landlord. After going through the papers on record, this Court finds that the appellate court has erred in law in holding that the need of the landlord is not genuine. Merely for the reason that the landlord had a shop in Almora, where he runs vegetable business or his mother owns a hotel, does not make a case that the landlord need not settle his unemployed son in the business. It is nobody’s case that Nagendra Singh (son of the landlord) is employed or that he was good in studies. It has also come on the record that the landlord has six members in his family. 8. Shri Chandramauli Sah, learned counsel for respondent No. 3 argued that there are five shops on the ground floor of Ambika hotel in Railway Bazar (one of said shops is in occupation of the present tenant), and landlord is earning a handsome amount, as rental income. In the opinion of this Court, that is not a sufficient ground not to settle one’s own son in business. On behalf of respondent No. 3, it is further contended that earlier the landlord got vacated a shop in which business 6 in the name and style ‘Vijay Cut Piece Store’, used to run by some tenant, and let out to other tenant and as such, need of the landlord cannot be said to be genuine. In reply to this, Shri B.D. Pande, learned counsel for the petitioner pointed out that it was let out to new tenant in the year 1986, when said shop was got vacated, and at that time, the landlord’s son was studying and for that reason it cannot be said that in the year 1989, after the son had grown up, he need not to be settled in the business. I agree with the submission of learned counsel for the petitioner that when the petitioner’s son was too young for business at that stage even if some shops were got vacated by the landlord, it does not make a ground to hold that the need of the landlord is not genuine, after the son is grown up. 9. As far as comparative hardship is concerned, on behalf of the petitioner, it is argued that the respondent No. 3 had three shops in Haldwani, and he can easily shift his business to other two shops. Learned counsel for respondent No. 3 referred to the evidence on record and contended that one of the remaining two shops, was run by his brother, who had a separate business, and after death of said brother, his wife is running said business, as such, business of respondent No. 3 cannot be clubbed with that of his brother. 7 However, as to the another shop in Meera Marg, it is not denied that respondent No. 3 is not running business in said shop also. No doubt, the landlord has a shop at Almora, where he does vegetable business, and also had four other shops at Haldwani, but none of these shops are vacant, where the landlord can settle his son. Learned counsel for the petitioner contended that during the pendency of these proceedings, another son has also grown up and is unemployed. In the circumstances, this Court finds that the appellate court has erred in law in reversing the finding recorded by the Prescribed Authority that the comparative hardship is greater to the tenant as against the landlord. While there is another shop at Meera Marg, Haldwani, where the tenant can shift his business, but there is no vacant shop for the landlord where he can settle his son in business. After going through the copies of affidavits (filed before the Prescribed Authority), which are annexed as annexures with writ petition, this Court finds that the finding recorded by the appellate court, and reversal of the finding recorded by the Prescribed Authority, is perverse and against the record. 10. For the reasons, as discussed above, this writ petition deserves to be allowed. Accordingly, the writ petition is allowed. The 8 impugned order dated 18.02.1995, passed by IIIrd Additional District Judge, Nainital, in Rent Control Appeal No. 05 of 1993, is hereby quashed. The order dated 03.05.1993, passed by Prescribed Authority, Haldwani, in Rent Control Case No. 01 of 1989, is restored. However, considering the facts and circumstances of the case, respondent No. 3 is allowed time up to 31.03.2010, to vacate the shop in question, where after the order, passed by the Prescribed Authority may be got executed by the landlord. (Prafulla C. Pant, J.) Dt:02.09.2009 Sweta