IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 4571 of 2001 (M/S) (Old No. 8477 of 1989) [ Smt. Uma Garg W/o late Sri Ghanshyam Kishore Garg, R/o Sheel Sadan, 57, Railway Road, Rishikesh, District Dehradun. ...…………. Petitioner Versus 1. The Additional District Judge, Dehradun. 2. The Prescribed Authority (Munsif / Magistrate) Rishikesh, District Dehradun. 3. Sri Datar Singh S/o Sri Lal Chand Kalra Shop No. 6, Sheel Sadan, 57, Railway Road, Dehradun. ...………… Respondents Mr. L.K. Tiwari, Advocate for the petitioner. Mr. Arvind Vashistha, Advocate for respondent No. 3. Hon’ble Prafulla C. Pant, J. By means of this writ petition, moved under Article 226 read with Article 227 of the Constitution of India, the petitioner has sought writ in the nature of certiorari quashing the order dated 12.01.1989, passed by Addl. District Judge, Dehradun, in Rent Control Appeal No. 70 of 1986, whereby said court has allowed the appeal and set aside the order dated 22.05.1986, passed by the Prescribed Authority (Munsif, Rishikesh). Said Prescribed Authority had allowed the application 2 of the landlady (present petitioner) for release of accommodation under Section 21(1)(a) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (for short U.P. Act No. 13 of 1972). The respondent No. 1 (appellate court) by the impugned order has dismissed the application for release of accommodation, moved by the landlady. 2) Heard learned counsel for the parties and perused the papers on record. 3) Brief facts of the case are that the petitioner Smt. Uma Garg is owner and landlady of Shop No. 6 in House No. 57 (known as Sheel Sadan) situated in Railway Road, Rishikesh, District Dehradun, and respondent No. 3 Datar Singh is the tenant in said shop. The petitioner moved an application under Section 21 of the U.P. Act No. 13 of 1972, for release of the shop occupied by the tenant (respondent No. 3) on the ground that the petitioner / landlady needs the same for settlement of his son, in business. It is stated in the application that the petitioner’s husband used to run a printing press since 1976 till 1983, and thereafter, on his death, the petitioner, started running the press. It is further pleaded in the application that the petitioner’s family consists of the petitioner (a widow), her two sons Rajiv and Sunil and two daughters Dipti and Aarti. She wanted to settle her elder son who was studying in Class XII, in the business, but for the want of 3 accommodation she is unable to settle him. Pleading that the need of the landlady was genuine, petitioner sought release of the shop occupied by respondent No. 3 Datar Singh. It is also pleaded in the application that respondent No. 3 Datar Singh (tenant) can conveniently get his business shifted elsewhere as the respondent is already running his business in another shop and only his father sits in the shop in question. It is pleaded that the respondent Datar Singh already has a shop in Bhagwan Ashram, Haridwar Road, Rishikesh, as such, the comparative hardship of the landlady is more as to that of the tenant. 4) The respondent No. 3 Datar Singh contested the application, moved by the landlady before the Prescribed Authority, and stated that the son of the landlady is not mature enough to run independent business. Denying that the need of the landlady was genuine, it is further stated that even the comparative hardship of the tenant is more to that of the landlady. It is pleaded by the tenant before the Prescribed Authority that though the shop situated in Bhagwan Ashram, Haridwar Raod, Rishikesh, was taken on rent in 1984by him, but infact, after marriage of his brother Harjeet Singh the responsibilities have increased in the family of the tenant. It is alleged by the contesting respondent that the landlady is already in possession of the ten rooms on the first floor of the building in question, 4 apart from the two shops behind the accommodation in question. 5) The Prescribed Authority after taking evidence of the parties and hearing them found need of the landlady (present petitioner) as genuine, and also held that there is greater hardship to the landlady as compared to that of the tenant. With these findings the Prescribed Authority allowed the release application vide order dated 22.05.1986, passed in P.A. Case No. 9 of 1985. Aggrieved by said order the tenant (Datar Singh) filed a Rent Control Appeal No. 70 of 1986, which was decided by the Addl. District Judge, Dehradun, vide impugned order dated 12.01.1989, whereby the appeal was allowed, and the application for release of accommodation was dismissed. Hence, this petition by the landlady. This writ petition is received by transfer to this Court under Section 35 of the U.P. Re- organization Act, 2000 (Central Act No. 29 of 2000), for its disposal. 6) Admittedly, the petitioner is landlady and respondent No. 3 Datar Singh is her tenant in Shop No. 6, in House No. 57 situated at Railway Road, Rishikesh. It is also not denied that petitioner’s husband had died and she had two sons and two daughters. It is also not disputed between the parties that after death of her husband, the petitioner started running business of her husband. In the writ petition it 5 has been stated by the landlady that it is true that there are ten rooms on the first floor of the building and twelve shops in the ground floor. It is further stated that out of the ten rooms on the first floor, six rooms were residential where the family of the petitioner resides. The remaining four rooms were utilized in connection of business continued by her, after death of her husband as composing room, binding room and two stores. In the ground floor, the two shops namely, shops No. 14 and 15, which were in possession of the landlady but in one of it printing press is installed and another used for selling the printing material. Said shops are separated by a wall in which the respondent Datar Singh is the tenant which the petitioner needed for her son’s business. It is also stated in the writ petition that infact, since 1984, when the respondent Datar Singh took the shop in Bhagwan Ashram, Haridwar Road, Rishikesh, he is not using the shop No. 6. Reiterating her need as bonafide it is stated by the petitioner that her son Rajiv, who attained the age of majority in the year 1995, entered into partnership with another person to run his business in the name and style of ‘Printech Systems’. By setting up said business the petitioner’s son had intended to install offset printing machine instead of outdated hand operated machine, installed in the printing press of the petitioner. Assailing the impugned order passed by the appellate court it is pleaded that reversal of finding recorded by the Prescribed Authority, is illegal and against the 6 weight of evidence on record. It is further pleaded that the appellate court has ignored the fact that the petitioner had already moved an application for loan to set up the Printech Systems, and in these circumstances to say that the need of the landlady was not bonafide, is erroneous. It is further pleaded in the writ petition that the appellate court has erred in law by saying that exact measurement of the shops were not given by the petitioner. The appellate court has ignored important piece of evidence that the petitioner had filed letter showing sanction of loan of Rs. 2,00,000/- from U.P. Finance Corporation for setting up business of her son. [[[ 7) On behalf of the contesting respondent No. 3 Datar Singh counter affidavit is filed before this Court in which it is stated that he is occupying shop No. 6, as tenant, since 1969, and has earned a goodwill. It is further stated that the five rooms on the first floor were being used by the petitioner for running a school, and rest for the residential purposes. It is further stated that the petitioner who earlier used to run the printing press business has closed the same. The petitioner’s son Rajiv has now established his business of readymade garments in shop No. 3. As to the running business by respondent Datar Singh in a shop situated at Bhagwan Ashram, Haridwar Road, Rishikesh, it is stated that the contesting respondent’s family is a joint family and said shop was taken by the tenant to augment the income of his family. It is alleged in the counter affidavit that 7 need of the landlady is not bonafide nor she has greater hardship as compared to that of the tenant. 8) In the rejoinder affidavit, the petitioner has reiterated the averments made in the petition. 9) It is settled principle of law that for release of accommodation prayed by the landlord under Section 21(1)(a) of the U.P. Act No. 13 of 1972, only two points are to be established by the landlord –(i) bonafide need, and (ii) greater comparative hardship. It is argued on behalf of petitioner (landlady) that from no stretch of imagination need of a shop for establishing unemployed son in business can be said to be not bonafide. Having considered the facts and circumstances of the case and submissions of learned counsel for the parties, this Court is of the view that the appellate court (respondent No. 1) has committed grave error of law in holding that the petitioner’s need for the shop in question was not bonafide. The petitioner is a widowed lady, who was running her late husband’s business to maintain his family consisting of two sons and two daughters. It has come on the record that the applicant’s son Rajiv was the eldest, and at the age of 18 she wanted to settle him in business. It is not disputed that the shop in question was behind the shop in which the petitioner was running the printing press. The appellate court (respondent No. 1) has erroneously ignored the papers relating to loan taken by the 8 petitioner from U.P. Finance Corporation for her son to set up an Offset printing press. Papers on the record suggest that the petitioner had plan to demolish the wall between the shop No. 6 and the shops in which the old printing press was being run to establish an offset printing press. 10) Mr. L.K. Tiwari, learned counsel for the petitioner submitted that the averment made in the counter affidavit that the petitioner’s son Rajiv is running garment shop in shop No. 3 does not dilute the genuineness of need of the landlady as the application was moved in the year 1986, and the boy could not have waited on the road for running the business, as still the shop is not vacated. In this connection, it is further pointed out that meanwhile another son has also grown up in the family, and has to stand on his own legs. In the rejoinder affidavit it has been stated by the petitioner that since petitioner suffered financial losses and could not get possession of the shop in question, the school run by her in the first floor has also been closed and first floor including the residential rooms has been sold by her. 11) As to the comparative hardship also the appellate court (respondent No. 1) has given a perverse finding. After the tenant has got another shop in 1984, in Bhagwan Ashram, Haridwar Road, Rishikesh, the hardship of respondent No. 3 cannot be said to be 9 greater to that of the petitioner. It is admitted in the counter affidavit that said shop is being used to augment the income of the respondent No. 3. 12) For the reasons as discussed above, this Court is of the view that the respondent No. 1 (appellate court) has erred in law in holding that the need of the landlady (petitioner) was not genuine on the date of filing of the application and that her hardship was not greater to that of the tenant. Therefore, the impugned order dated 12.01.1989, is liable to be quashed. Accordingly, the writ petition is allowed. The impugned order dated 12.01.1989, passed by respondent No. 1, is quashed. The order dated 22.05.1986, passed by the Prescribed Authority, Rishikesh, in P.A. Case No. 9 of 1985, is restored. However, the respondent No. 3 (tenant) is allowed three months time from today to vacate the premises and handover the possession of shop No. 6 to the petitioner, failing which the order passed by the Prescribed Authority may be got executed by the petitioner. No order as to costs. (Prafulla C. Pant, J.) Dt. August 18, 2009. H. Negi