IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Chapter VIII, Rule 32 (c) (b) Description of case Writ Petition No. 536 of 2003 (M/S) Sukhwant Singh ………… Petitioner Versus Additional Distt. Judge & another. ………… Respondents Mr. U.P.S. Negi, Advocate for the petitioner. Mr. B.D. Upadhyaya, Advocate for respondent no. 2. Date of judgment : 26.11.2008 A.F.R. (Approved for Reproting) Not Approved for Reproting Date: 26.11.2008 Initials of Judge Note : Bench Reader will attach this at the top of first page of the judgment when it is put up before the Judge for signature. IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 536 of 2003 (M/S) Sukhwant Singh ………… Petitioner Versus Additional Distt. Judge, Pauri Garhwal and another ………… Respondents ………… Mr. U.P.S. Negi, Advocate for the petitioner. Mr. B.D. Upadhyaya, Advocate for respondent no. 2. Hon’ble V.K. GUPTA, C.J. In this petition filed under Article 227 of the Constitution of India, judgment dated 19.05.2003 passed by the Additional District Judge (F.T.C) Pauri Garhwal, Appellate Authority is under challenge. Vide this judgment, the learned Distirct Judge has set aside the judgment dated 22.06.1999 passed by the learned Prescribed Authority allowing the release application of the petitioner-landlord filed U/s 21(1)(a) of the U.P. Urban Building (Regulation of Letting, Rent and Eviction) Act, 1972. A very short question is involved for adjudication and consideration in this petition. The petitioner-landlord, undisputedly, has a building, upper storey of which is the residential portion and on the ground floor is a shop in the occupation of respondent no. 2-tenant. He filed a release application with respect to the shop on the ground floor (occupied by respondent no. 2-tenent) on the ground that he bona fide required this shop for his own occupation for carrying on his business there at. This was resisted by the tenant on the ground that the petitioner-landlord is already carrying on his business in a tenanted shop, which is just 100 feet away from the shop in question. The issue which has fallen for consideration in this petition is whether the need and requirement of the landlord with respect to the shop in question is bona fide or not in the light of the admitted fact that he is already carrying on his business in a tenanted shop, which is just about 100 feet from the shop in question. It is undisputed case of the parties in both the Courts as well as in this Court that the petitioner-landlord is not facing any problem with respect to his occupation or possession on the tenanted shop where he is carrying on his business. It is not the case of the petitioner-landlord that he is either facing any threat of eviction from the tenanted shop or that any action has been initiated by the landlord of that shop to evict him from the tenanted shop. It is also not the case of the petitioner-landlord that he is facing any inconvenience, any hardship or any discomfort while occupying the tenanted shop or that his business prospects would improve, if he shifts from the tenanted shop to his own shop. On the contrary, the undisputed case of the petitioner-landlord is that the business carried on by him in the tenanted shop is doing very well and the tenanted shop is in the main bazaar where he is not facing any problem on account of the conduct of his business. Undisputedly, respondent no. 2 admitted in the Trial Court as well as before the Appellate Court that his wife had purchased a property, but there is a clear and categorical finding, that accommodation for running a shop in that property is not available. Clause (a) of Sub Section (1) of Section 21 of 1972 Act creates a ground in favour of a landlord for seeking eviction of a tenant from a building under the tenancy of the tenant and the ground is based upon the bona fide requirement of the landlord for occupation by himself or any member of his family etc. etc. For ready reference, Sub Section (1) including clause (a) is reproduced as under which reads thus:- “(1) The prescribed Authority may, on an application of the landlord in that behalf order the eviction of a tenant from the building under tenancy or any specified part thereof if it is satisfied that any of the following grounds exists, namely- (a) that the building is bona filed required either in its existing from or after demolition and new construction by the landlord for occupation by himself or any member of his family, or any person for whose benefit it is held by him, either for residential purposes or for purposes of any profession, trade, or calling, or where the landlord is the trustee of a public charitable trust, for the object of the trust; ..................................................................................” What must be, therefore, clearly seen and understood in true perspective is the bona filed requirement of the landlord for occupation by himself or by any member of his family either for residential purposes or for the purpose of any profession etc. Whether a landlord’s requirement of a building or a part of a building under the tenancy of a tenant and his requirement is bona fide is always a question of fact which has to be decided in each case on due appreciation of evidence on record. In the present case, the landlord totally and absolutely failed to prove his bona fide requirement for occupation of the shop by himself because he actually and, in fact, failed to prove any requirement at all. The question of requirement would arise or would have arisen if the landlord either was not having any shop in his possession and thus he would have been in requirement of the shop in question or the shop, which was in his possession, was creating any problems for him. In the present case, undisputedly and admittedly, the landlord is in occupation of a shop, which has been taken on rent by him and his occupation of the shop is peaceful as well as without any problem. Since the landlord is not facing any threat with respect to his occupation of the said shop, he does not require the shop in question for his occupation and, therefore, the ground for eviction cannot be said to have been made out. In my considered opinion, the learned Appellate Court was right in allowing the appeal and is rejecting the eviction request of the petitioner- landlord. No interference is called for. The petition is dismissed. (V.K. Gupta, C.J.) 26.11.2008 A