Rakesh Tiwari, J.:— Heard Counsel for the parties and perused the record.

2. This is tenant's writ petition filed against the judgment of the Additional District Judge, Court No. 3, Firozabad in Misc. P.A Appeal No. 19 of 2002 dated 13.1.2006 dismissing the appeal filed by the tenant against the order of the Prescribed Authority/Civil Judge (Junior Division), Firozabad dated 14.3.2002 in P.A No. 2 of 1997.

3. Respondent Smt. Baby Jain is the owner and landlord of the disputed shop situated at Tundla, District Firozabad. The shop in dispute was let out to the petitioner on monthly rent of Rs. 300/- apart from taxes etc. on 1.4.1984

4. An application under section 21(1)(a) of U.P Act No. 13 of 1972 was filed by the landlady for the release of the aforesaid shop against the petitioner on the ground that at the time of letting out the shop she was residing at Etah with her husband who was doing business of motor parts. It was averred in the application that the shop was required for her husband as the family has shifted to Tundla with bag and baggage and now her husband is jobless. It was further alleged that the tenant has been elected as member of the Vidhan Sabha as such the disputed shop is kept closed by him and he has constructed his own shops in the vicinity/adjoining property to the shop in dispute. The landlord also alleged that her need is extreme and bonafide and the tenant does not require the shop in dispute but is demanding premium for vacating the shop in dispute.

5. The application was contested by the tenant by filing W.S dated 6.1.1997 He claimed that the need of the landlord was not bonafide and has no cause of action as the husband of the landlady is doing business in her home; that application is barred by the provisions of section 21 of U.P Act No. 13 of 1972 and Rule 16 of the Act. It was also his case that he is doing business of motor parts in the shop in dispute for the last 13 years and has earned good will due to his honesty and hard labour. The shop in dispute situated on Agra Firozabad highway which is suitable for the business of motor parts and is the only source of livelihood of the family of the respondent.

6. It was averred in the reply that the landlady is having another vacant shop adjacent to the petitioner's shop in the same house which could be used by her husband and her need is not bonafide. The petitioner has no property towards east of the shop in dispute and towards east of the shop in dispute the property of his father is situated which has not been partitioned as yet and the petitioner is living separately and is not in possession of any shop in the said house. Further, it was averred that the shop in dispute has been let out in contravention of sections 11 and 13 of U.P Act No. 13 of 1972 whereas the shop in dispute was constructed such before September, 1982 as provision of U.P Act No. 13 of 1972 has been violated in letting the shop in dispute.

7. Both the parties adduced evidence in respect of their respective cases. The prescribed authority vide its order dated 14.3.2002 allowed the release application of the landlord.

8. Aggrieved by the aforesaid order dated 14.3.2002 the petitioner filed appeal before the Appellate Court which too was dismissed vide order dated 13.1.2006, hence this writ petition.

9. It is submitted by the Counsel for the petitioner that the prescribed authority in a wholly arbitrary manner against the evidence on record on the basis of surmises and conjecture has recorded perverse finding and has illegally shifted the burden of proof on the petitioner without considering the effect of Rule 16 under U.P Act No. 13 of 1972. He has illegally allowed the release application of the landlord vide order dated 14.3.2002

10. It is further submitted that the Appellate Court vide order dated 13.1.2006 has confirmed the order of the prescribed authority dated 14.3.2002 in a mechanical manner which is illegal and cannot be sustained in the eye of law.

11. The contention of the Counsel for the petitioner is that under section 21(1)(a) of U.P Act No. 13 of 1972 the landlord has to prove his bonafide need and comparative hardship. He has placed reliance upon paragraph 3 of the judgment in Dhirendra Mohan Saksena v. Prescribed Authority, Bareilly . 1991 17 ALR 1. which is as under:—

“This is settled law that onus is not stationary and it keeps on moving like a pendulam of a clock. When a party to the asserts some fact and establishes that by reasonable evidence, then the burden is shifted to the other party to rebut the same and when that party rebuts such contention by reasonable evidence then again the burden is shifted to the party, who originally asserted a fact.

In this case, the tenant's case was that the landlord-petitioner owns several houses, namely, 129, 193, 258, 230, 331, 99 and 112-A situate in Mohalla Karolan, Bareilly besides the house No. 193 situate in Gali Maliyan, Bareilly. Therefore, the questions for the consideration is whether on the facts and the circumstances of this case, the tenants successfully established by reasonable evidence that the accommodation named above belonged to the petitioner. Unless some evidence is given by the tenant to establish the averment that the petitioner owned several accommodations, in Bareilly, the burden of proof could not be shifted to the petitioner. The case of the petitioner is that he did not own any other accommodation in Bareilly and, therefore, it was the duty of the tenant to establish by independent evidence that the petitioner owned several accommodations and unless this fact is established by reasonable evidence adduced by the tenant no burden would be shifted to the petitioner to rebut the case of the tenant. Unless something is established, no rebuttal is required. The question is: did the tenant established the fact that the petitioner owned several accommodations in Bareilly? The answer is clearly No, because not even the symblance of evidence, much less reasonable evidence was adduced by the tenant to prove his averment that the petitioner was the owner of several accommodations. On these facts it is clear that the petitioner could not be forced to prove negative fact that he as not the owner in possession of any other accommodation. It is not a negative fact but a positive one, which has to be prove. The tenant having asserted that several houses belonged to the petitioner carried the burden to prove that fact and not the petitioner.”

12. It is stated that the landlady did not disclose that she has four shops and out of which she has a vacant shop adjacent to the disputed shop and in this regard she has not led any evidence that she has a vacant shop adjacent to the shop in dispute.

13. Per contra, the Counsel for the respondent submits that the prescribed authority after considering facts, evidence and law relied by the parties recorded categorical finding that there exist no shop available to the respondent for carrying on business of motor-parts by her husband.

14. It is further submitted by the Counsel for the respondent that the petitioner has constructed his own shop but is not vacating the disputed shop of the respondent with malafide intention.

15. It is stated that there are concurrent findings recorded by both the Courts below which are based on evidence and cogent reasons, hence require no interference. In support of his contention the Counsel for the respondent has placed reliance upon paragraph 8 of the judgment rendered in the case of Manoj Kumar v. Munni Devi . 2005 2 ARC 1. wherein it has been observed that-

“The appellate authority has recorded a clear finding that the need of the landlord was bonafide and genuine and further that the landlord will suffer greater hardship in the event of rejection of the release application that that which will be suffered by the tenants in the event of grant of the application as they had several other vacant shop in their occupation. The appellate authority has also recorded a finding that the requirement of first proviso to sub-section (1) of section 21 of the Act had been complied with as a notice was given before filing of the release application. The High Court, therefore, rightly declined to interfere with the order passed by the appellate authority while exercising jurisdiction under Article 226 of the Constitution.”

16. In rebuttal, the Counsel for the petitioner submits that the shop is said to have been constructed by the father of the petitioner and he has not been given share in the aforesaid property constructed by his father as such if any shop has been acquired by his father is of no consequence.

17. In support of his contention the Counsel for the petitioner has placed reliance upon the following rulings.

1. Tara Chand v. District Judge, Saharanpur . 1978 ALL.L.J 424, and

2. Smt. Bitta Devi v. Bimal Kumar Kumar.4

CONCLUSIONS:

18. Before conclusion of the facts the case law cited by the Counsel for the parties may be examined. It is not in dispute that burden of proof is not stationary. The party asserting his claim must discharge his burden, which thereafter shifts on the other party. However, in the instant case the petitioner has constructed his own shop, hence the question of proving bonafide need and comparative hardship would not arise in view of explanation (1) of section 21(1)(a) of U.P Act No. 13 of 1972. This aspect of the matter is being dealt with in later part of the judgment. The case of Manoj Kumar (supra) cited by the Counsel for the respondents was decided in the peculiar facts and circumstances of that case and no law of universal application has been laid down in the aforesaid case.

19. In Tara Chandra (supra) it has been held in paragraphs 4 and 5 that-

“Before the authorities under the Act proceed to compare the needs of the landlord and the tenant, they have first to find out whether the need of the landlord is bonafide as it is only when that question is answered in the affirmative, that the burden of comparison can arise.

Where the prescribed authority finds that both landlord and tenant have equal alternative accommodations and emphasizing that it is the tenant's duty to vacate if he has got alternative accommodation holds that landlord's need is greater, it cannot be inferred therefrom that the need of the landlord is genuine and bona fide. Every need of the landlord cannot be called to be bonafide. Had it been so, the word “bona fide” would not have been mentioned prior to the word ‘need’ in section 21 of the Act.”

20. In the case of Smt. Bitta Devi (supra) there was one room accommodation allotted to the tenant and he had occupied his side space. In that backdrop the Court has held that he was also the tenant of the side space. A notice was issued to the tenant terminating tenancy in respect of the room and demanding possession of the side space. The Court has further held that there was no termination of the tenancy of the entire accommodation occupied by the tenant. The tenancy could not be split. Hence the notice was invalid.

21. The case laws cited by the Counsel for the parties are not applicable to the facts and circumstances of this case.

22. Now the provisions of section 21(1)(a) and definition of the family under section 3(g) of the Act may be looked into.

23. Explanation (i) to section 21(1)(a) of U.P Act No. 13 of 1972 is as under:—

“(i) where the tenant or any member of his family who has been normally residing with him or is wholly dependent on him has built or has otherwise acquired in a vacant state or has got vacated after acquisition a residential building in the same city, municipality, notified area or town area, no objection by the tenant against an application under this sub-section shall be entertained.”

Section 3(g) defines ‘family’ as under:—

‘family’, in relation to a landlord or tenant of a building means, his or her-

(i) spouse;

(ii) male lineal descendants;

(iii) such parents, grand-parents and any unmarried or widowed or divorced or judicially separated daughter or daughter or a male lineal descendant, as may have been normally residing with him or her,..”

24. On the analogy of Explanation (I) of section 21(1)(a) of U.P Act No. 13 of 1972 read with the definition of family used in section 3(g) of the Act, it is apparent that once the petitioner admits that he has been given shop constructed by his father, he can neither question the bonafide need and comparative hardship of the respondent-landlord nor can take any advantage of fact that the landlord has alternative shop or accommodation in his possession. The petitioner has not deried that his father is normally not residing with him. The expression' member of the family' is to be consistent with the spirit of the definition of ‘family’ given in section 3(g) of the Act and there is no scope for interpreting this expression in any other manner, therefore, father is included in section 3(g)(iii) of the definition. The hardship of the tenant ends if any member of his family has constructed accommodation or shop.

25. Business carried by the husband from the residential portion under compulsion of want of shop cannot extinguish the bonafide need and comparative hardship of the landlady particularly when a number of shops have been constructed by tenant or member of his family in the vicinity and in the same notified municipal area. The prescribed authority recorded finding that the respondent has shifted to Tundla in the year 1995 and is living permanently there, hence his bonafide need and comparative hardship to start business from scratch would not in the facts and circumstances extinguish.

26. The prescribed authority has also recorded finding that the property adjoining the shop in dispute is owned by the petitioner. The municipal assessment thereof is in the name of petitioner. The petitioner has raised construction of shop of the size of 12′ × 45′ two shops of the size of 15′ × 12′5″ and six shops of the size of 7′5″ × 12′5″. The petitioner is residing at first floor one big shop and two other shops towards road side are still lying vacant from where the petitioner can shift his business.

27. Admittedly, the tenant has been elected as member of the Vidhan Sabha and his family members have got constructed shops adjacent to the shop in dispute. Being an elected member it is his moral duty to look after the persons in his constituencies rather than demanding premium to vacate the shop for the sole purpose to enrich himself with windfall gain. Such conduct is not expected for a person holding an elective office. It has after considering the pleading and evidence of the parties recorded a further finding of fact that the shop in occupation of Sri Mustakim which alleged to be lying vacant, has not been proved by the petitioner.

28. The judgment of the prescribed authority challenged by the petitioner was affirmed by the appellate authority after considering the evidence adduced, pleadings of the parties and law cited before it. The Courts below have thereupon came to the conclusion that the petitioner is carrying on business in the name of Shiv Gun house from the property owned by him beside carrying educational institute in the name of Anjana Shiksha Sadan Junior High School. The concurrent findings recorded by the Courts below that bonafide need and comparative hardship of the landlord is greater than the petitioner-tenant who has acquired his own shop and the property adjoining the disputed shop is owned by the petitioner and several shops are lying vacant and available to the petitioner require no interference in the facts and circumstances of this case. There is no illegality or infirmity in the impugned orders of the Courts below. No interference is required by this Court under Article 226 of the Constitution.

29. For the reasons stated above, the writ petition is dismissed.

Petition Dismissed.