IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 3533 of 2001 (M/S) Mukesh Chandra Raturi and others ..……… Petitioners Versus State and others ……… Respondents Mr. D.C.S. Rawat, Advocate on behalf of Mr. Rajendra Dobhal, Senior Advocate for the petitioners. Mr. M.C. Pande, Advocate for the respondents. Hon’ble Tarun Agarwala, J. Heard Shri D.C.S. Rawat, the learned counsel holding the brief of Shri Rajendra Dobhal, the learned senior counsel for the petitioners and Shri M.C. Pande, the learned counsel for the respondents. The petitioners are the landlords and had filed an application for the release of the shop situate at Kuchahary Marg, Uttarkashi u/s 21 (1) (a) of the U.P. Act No. 13 of 1972. This release application was filed in the year 1987. It was contended that their father was an Advocate in the Civil Court and, upon his death, the financial position of the family was not sound and, therefore, to augment their income, a shop in question was required to set up a business for starting a press. It was further contended that respondent No. 3 Smt. Godembari Devi who was the tenant did not require the shop since her husband is a government employee in the Education Department and that the tenant would not suffer any loss in case she has to be evicted from the premises in question. The Prescribed Authority, after considering the material evidence brought on record, gave a conclusive finding that the petitioners’ have a bonafide need for the shop in question. The tenant, being aggrieved by the aforesaid order, filed an appeal which was allowed and the order of the Prescribed Authority was set aside. 2 The Appellate Authority held that the landlords have not been able to prove their bonafide need and that they have no requirement for the shop in question. The reasoning adopted by the Appellate Court was that the landlords have a grove in which there are almost 250 to 300 apple trees which is giving them sufficient income for their survival. Besides this grove, they have a residential house behind the shop in question and that they have some property in Tehri in which compensation was given to them and, consequently, concluded that the landlords are financially well off and do not require the shop in question. The Appellate Court further found that the petitioner No.1 Mukesh Chandra Raturi was serving somewhere in Maharashtra and, therefore, the said landlord had no bonafide need for the shop in question. The Appellate Court further found that the type of business to be carried out by the remaining landlords was not indicated in their application and, consequently, the need shown appeared to be vague and not bonafide. In the light of the aforesaid, the Appellate Court concluded that since the landlords have no requirement for the shop in question and they are financially sound, there was no requirement for the shop to augment their income and, consequently, held that the petitioners had no bonafide need for the shop in question and allowed the appeal. The landlords, being aggrieved by the aforesaid order, has filed the present writ petition. Before this court, Shri M.C. Pande, the learned counsel for the respondent/tenant contended that during the pendency of the writ petition, the need of the landlords, if any, had dissipated. The petitioner No.1 Mukesh Chandra Raturi is working in O.N.G.C. at Dehradun and, consequently, his need for the shop in question has disappeared. Similarly, the petitioner No.2 Shailesh Chandra Raturi is doing garment business in another shop and that the petitioner No.3 Akhilesh Chandra Raturi is working as a lecturer 3 in Govt. Inter College and that the petitioner No.4 Smt. Lekhani Devi is an old lady and is not in a position to do any business and petitioner No.5 Km. Seema Raturi has got married and is living with her husband at another place. The petitioners in their rejoinder affidavit submitted that the petitioner No.2 Shailesh Chandra Raturi is not doing any business but is an Advocate and that he is also not doing well in his practice and, therefore, required the shop for business purposes. It was further contended that the petitioner No.4 is not in a position to do any business from the premises in question. Having heard the learned counsel for the parties, this Court is of the opinion that the bonafide need is required to be seen on the date of the filing of the application u/s 21 of the Act, i.e., the need is required to be seen which existed in the year 1987. Subsequent events can be considered but in a limited manner. The mere fact that the petitioners during the pendency of the litigation are doing some other business in order to survive does not mean that their need has come to an end. Consequently, the consistent view, that the need, at the time of the filing of the petition, is alone required to be considered and subsequent events which takes place should be construed in a narrow sense and that too in a limited manner. In the present case, the Court finds that the father of the petitioner No.1, 3 and 5 and the husband of petitioner No.4 died leaving a young family to survive on its own. The petitioners wanted to do a joint business of running a press from the shop in question. The Prescribed Authority, while delivering the order in the year 1990, found the need of the petitioners to be genuine and bonafide and, while considering the comparative hardship, found that the need of the landlords was more and greater than the distress that would be faced by the tenant while being evicted from the shop in question and, on these two grounds, the 4 Prescribed Authority allowed the release application and directed the tenant to vacate the shop in question. The Appellate Court has considered the bonafide need in an erroneous and tangent manner and has considered irrelevant facts. The Appellate Court was enamored with the fact that the landlords owned a huge grove in which there exists 250 to 300 apple trees and presumed that the income derived from this orchard was sufficient to meet their needs. The Appellate Court further found that the petitioners’ land in Tehri was acquired by the State Govt. for which adequate compensation was paid and on this consideration concluded that the financial condition of the petitioners was sound and, consequently, the petitioners did not require the accommodation to augment their business. In the opinion of the Court, this approach of the Appellate Court was patently erroneous. The question of augmentation of income is irrelevant and is not the prime consideration. What is of prime importance is the need and the bonafide requirement to do business and, if by doing business, the petitioners will augment their income, such augmentation of income cannot be a ground to deprive them from doing their business. Income so derived is not the essential criteria and what is essential and required to be considered is, the need and the bonafide requirement of the landlords for the shop in question. From the evidence that has come on record, it is apparently clear that at the time when the application was filed in the year 1987, the need for the shop to run a business for the five petitioners was genuine and was required bonafidly for their business purposes. This finding has been given by the Prescribed Authority. During the pendency, two of the petitioners have taken up a job and, consequently, to that extent their need has dissipated. The third petitioner’s need has dissipated upon her marriage and leaving the town in question. But the need of the petitioner No.2 5 and petitioner No.4 still remains and even though the petitioner No. 2 has become an Advocate, he has stated that he is not successful in his practice and wants to do business. The Court is of the opinion that the mere fact that the petitioner No.2 has come into the legal profession does not debar him from doing his business. He can always surrender his licence in order to start business. Practising the legal profession during the interim period, i.e., during the pendency of the writ petition, does not end his bonafide need to do the business. Similarly, the need for the petitioner No. 4 still survives even though she may have become old and it does not mean that she cannot do her business. This court further finds that the Appellate Court opined that the need of the landlords does not exist because they did not indicate the nature of the business that they would carry out from the premises in question. This finding is incorrect, in as much as, the petitioners contended that they intend to run the business of a press. The fact that the petitioners have the requisite qualification or not is irrelevant. If their intention is bonafide, then nothing more is required to be considered. The Supreme Court in Raj Kumar Khaitan and others Vs. Bibi Zubaida Khatun and another, AIR 1995 SC 576 held that the landlords if they assert that they want to set up their own business is sufficient to view their bonafide need and that it was not necessary for the landlords to indicate the precise nature of the business which they intended to start in the premises in question. The Supreme Court further held that even though the nature of business was not indicated, it does not mean that their need was not bonafide. In the light of the aforesaid, this Court is of the opinion that the lower appellate court was not justified in holding that the landlords need was not bonafide. The order of the appellate court cannot be sustained and is consequently set aside. 6 The Court finds that the need is bonafide and still survives and, consequently, the petitioners are entitled for the release of the premises in question. The Court also notices the fact that the release application was filed in the year 1987. 23 long years have elapsed and, to a large extent, the tenant has virtually won the litigation. During this pendency, no effort has been made by the tenant to indicate non-availability of another shop. No affidavit has been filed under Rule 16 of the Rules to indicate that the tenant made a vigorous search and was unable to find an alternate accommodation. In view of the aforesaid, the writ petition is allowed. The impugned order is set aside and the order of the Prescribed Authority is affirmed. After the aforesaid order was dictated in open Court, the learned counsel Shri M.C. Pande made a submission praying for some time for vacating the premises in question. Considering the facts and circumstances that has been brought on record coupled with the fact that the tenant is carrying on a business of general merchant from the shop in question, this Court grants time to the tenant/opposite party to vacate and hand over peaceful possession of the premises in question on or before 31st March, 2011 provided the tenant deposits the entire arrears of rent, if any, before the Prescribed Authority on or before 30th November, 2010. The amount so deposited can be withdrawn by the petitioners. In addition to above, the petitioner will deposit the damages for use of the shop @ Rs. 1,000/- p.m. from 1st November, 2010 till 31st March, 2010 which amount shall also be deposited in advance on or before 30th November, 2010. If any of the conditions are not complied with, it would be open to the petitioners to proceed forthwith for the eviction of the opposite party. (Tarun Agarwala, J.) Dated 26th October, 2010 Shiv 7