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Judgment
R.H. Zaidi, J.—Petitioner, by means of the instant petition, prays for a writ, order or direction in the nature of certiorari quashing the order dated 7.1.1987, passed by Vth Addl. Distt. Judge, Fatehpur, acting as appellate authority, under the U.P. Urban Buildings (Regulations of Letting Rent and Eviction) Act, 1972, for short the Act.
Instant petition arises out of the proceedings under Section 21 (1) (a) of the Act. The dispute relates to the shop No. 89 situated at Mahadeo Tola, Fatehpur. Release was sought by the petitioner on the ground that the shop in dispute was needed for settling his son Krishna Kumar in the business of bicycles, as he was seek in studies and he had no interest in perusing the same. It was alleged that the opposite party had another shop situated at the Chowk Bazar and used to carry on business in the same, the shop in dispute was given by him to his nephew Sanjiv Kumar alias Piyush Kumar, who was not the member of his family. It was further pleaded that the tenant (respondent no. 2) will not suffer any hardship in the event the release application is allowed.
Application was contested by respondent No. 2, Har Swaroop Rastogi, who pleaded that the need of the petitioner was neither genuine nor bonafide. Petitioner had another shop and used to carry on the j wellery business in the same, that the said respondent has been carrying the business in the shop in dispute since 1970. It was denied that Sanjiv Kumar alias Piyush Kumar was a tenant in the shop in dispute, it was also denied that the shop situated in Chowk Bazar was in his possession. Respondent No. 2, further asserted that in case he is ejected from the shop in dispute, he shall suffer comparatively more hardship than the petitioner, in the event of rejection of his application.
The Prescribed Authority after perusing the evidence on record was pleased to hold that the need of the petitioner for the shop in dispute for settling his son in the business was genuine and bonafide. It was also held that respondent No. 2 was in occupation of the shop situated in Chowk Bazar and used to carry on the business of general merchants and shoes and further that the shop in dispute was in possession of Sanjiv Kumar alias Piyush Kumar therefore, he will not suffer any hardship, if he is ejected from the shop in dispute. Having recorded the aforesaid findings, the prescribed Authority allowed the release application in favour of the petitioner vide its judgment and order dated 3484.
Aggrieved by the judgment and order passed by Prescribed Authority, respondent No. 2 filed an appeal before respondent No. 1. The appellate authority allowed the said appeal by its judgment and order dated 7187 petitioner, thereafter, approached this court and filed the present petition.
I have heard learned counsel for the parties and also perused the record of the case.
The appellate authority has reversed the findings recorded by the Prescribed Authority mainly on the grounds that at the time of filing of release application the age of Krishna Kumar the son of the petitioner, was 17 years and four months and that he was not major on the said date and that the provisions of Rule 16 (2) (a) (d) of the Rules framed under the Act were not taken into consideration. It was observed by the appellate authority that:
"The age of Krishna Kumar son of the petitioner on the date of application was 17 years and four months thus on the date of application of release, son of the petitioner had not even attained the age of majority. So it cannot be said that it the age of 17 years son of the petitioner had attainted the age of majority so that he may be able to carry on an independent business. Under the circumstances, it cannot be said that the application moved by the petitioner on 2982 was on the basis of bonafide requirement. The application can also not be said to be bonafide under the circumstances of the case.
I find that the hardship of the tenant will be greater than the hardship of the applicant because the son of the applicant has yet not attained majority to handle the proposed business independently."
The findings recorded by the Prescribed Authority that respondent No.
2 was in occupation of the shop situated in Chowk Bazar and used to carry on business of general merchants and shoes, have not been reversed by the appellate authority. Only it was observed that the business in the said shop was a partnership business.
Under the Act or the Rules framed thereunder, there is no provision that the landlord or the member of his family for whose need the shop is sought to be released should be major on the date of application. Therefore, the only thing, which is to be seen in the case of release or allotment of commercial building is as to whether the landlord or the member of Ms family, for whose need the building (shop) is required to be released, was capable of doing the business that too on the date of the order. On the date of application for release, Sri Krishna Chandra was only aged 19 years and four months and on the date of decision of the said application he was more than 18 years and on the date when the appeal was decided he was more than 21 years old and today he is more than 31 years old.
The authorities below under the Act will have to take into consideration the facts and circumstances on the date when they are going to pass the orders as under the law, they are entitled to take subsequent events into consideration. Thus the ground on which the need of the respondent No. 2 was held to be not bona fide or genuine, was nonexistent, on the date the appeal was allowed. What to say today, when the son of the petitioner is 31 years old, therefore, the appellate authority was riot justified in holding that the son of the petitioner Krishna Chandra did not attain the majority on the date of application therefore, his need could not be held as genuine mdbonafide and also in holding that the hardship of the tenant will be greater than the landlord, because the son of the landlord did not attain the majority.
The appellate authority as stated above, did not reverse the findings recorded by the Prescribed Authority and that respondent No. 2 was in occupation of shop situated in Chowk Bazar locality. In view of the said finding, there was no question of any hardship to the respondent No.
2, if shop is released in favour of the, petitioner landlord.
The judgment and order passed by the appellate authority is, therefore, manifestly erroneous and illegal and is liable to be quashed.
The writ petition succeeds and is allowed. The order dated 71 1987 passed by the respondent no. 1 (Aimexure X) to the writ petition, is quashed. The parties are directed to bear their own costs.