- (1.) This is tenant's Petition under Article 226 of the Constitution arising out of proceedings under Section 21 of U.P. Act XIII of 1972 (hereinafter called the Act) in respect of shop. The proceedings were commenced in the year 1970 by the landlord by filing an application under Section 3 of U.P. Act III of 1947, for permission to file suit for ejectment but after the enforcement of Act XIII of 1972, the application was got amended into an application under Section 21 of the present Act in accordance with Rule 43(2)(a) of the Act.
(2.) The disputed premises are on east facing Do Khani shop with a tin-shed and then a Chaubtra in front. The total dimensions of the shop and the tin-shed are approximately 30 feet east west and 12-13 feet north-south as per site-plan Annexure RA-1. There is a road to north of the shop also and it has door to north too. To south of this is another east facing shop of which formerly one Lallu Singh was the tenant. The north-south width of this shop is about 17 feet. The petitioner is an approximately 45 years old tenant at Rs. 14/- per month and has been using the disputed shop as a parchun shop. The landlord sought eviction of both the petitioner and Lallu Singh, the southern shop owner, under the provisions of Section 21(1)(a) and 21(1)(b)(1). Under Section 21(1)(a) on the ground that the landlord required the premises after reconstruction for his own Parchun shop (2) under Section 21(1)(b) on the ground that the shops were dilapidated and they required for demolition and reconstruction. So far as Section 21(1)(a) is concerned, the case was that the landlord had been carrying on his own Parchun shop in a rented shop at Rs. 60/- per month which was insufficient for his purposes. He asserted that after demolition of the shops of Lallu Singh and the petitioner he would construct six shops and would let out one shop each to the petitioner and Lallu Singh too so that they can continue their business. Pending the proceedings Lallu Singh compromised with the landlord and surrendered half of his shop which the landlord reconstructed and converted into a 10' x 7" x 8' wide shop. The remaining eastern half was sold by him to Lallu Singh. This 10' x 7" x 8' shop was offered by the landlord to the petitioner as alternative accommodation in accordance with his allegations in the application. The landlord had also asserted that he would construct a residential flat on the first floor but this plea was later given up and is no longer in controversy. The Prescribed Authority held that the disputed shop was "not in dilapidated condition but it is not safe and double storey cannot be constructed on the present structure.' Secondly that the landlord was running his Parchun business in a rented shop at Rs. 60/- per month and also had rented a godown at Rs. 17/- per month at some distance from the shop which proved that the accommodation in the rented shop was not sufficient for his increasing business and his requirement was bonafide. It did not compare the hardship in view of the fact that Rule 16(1) of the Rules framed under the Act had been held ultra vires by a Full Bench of this Court and the fourth proviso had not yet been introduced in Section 21(1) by U.P. Act 28 of 1976. On these findings per its order dated 1.5.1976 the Prescribed Authority allowed the application. In appeal the District Judge confirmed the finding regarding bonafide requirement. Thereafter in view of the fourth proviso to the section which had come in force he proceeded to compare the hardships and noted that the landlord of the respondent had served a notice dated 18.7.1974 on the respondent to vacate the rented shop, that there was evidence to show that the petitioner had another shop in his occupation which was laying vacant, and that pending the proceedings the landlord had offered the newly constructed half portion of Lallu Singh's shop to the petitioner as alternative accommodation and in this situation the test of comparative hardship worked in favour of the landlord. The District Judge also found that the disputed premises were in a dilapidated condition and required demolition and reconstruction and the conditions of Section 21(1)(b) as well as Rule 17(i) had been fulfilled. The order of the Prescribed Authority was therefore, confirmed. The findings have been challenged by this petition.
(3.) The finding on the question of comparative hardship shows that the District Judge only considered the need of the landlord due to his allegedly increasing business (income tax assessment orders showed an income of approximately 22,000/- and 18,000/- during 1969-70 and 1970-71 and the alleged notice of ejectment-served by his own landlord in July 1974 pending the proceeding. There was no attempt to consider the distinction between mere service of notice of ejectment pending the proceedings and a real threat of immediate ejectment making the need very pressing. But more important there was no attempt to consider the tenant's need or hardship and how shifting from his 30" wide shop with road on two sides to an eight feet wide shop opening on a road would affect him. Nor was any mind applied to the question as to why the landlord himself could not manage with this extra 8 feet wide shop which he was offered to the petitioner. It is true that the comparison of hardship by the Prescribed Authority or Appellate Authority does not require any particular degree elaboration but Section 34(7) requires recording of reasons for all orders under the Act. Therefore, it is expected that a reading of the order should show that the Authority was alive to the important aspects of the matter. This is not so in the present case. Again the observation of the District Judge that there was evidence that the petitioner had another shop which he was keeping vacant was also misconceived because he totally failed to consider the petitioner's plea in his written-statement and the supporting affidavit that he did not have any such other shop, that there had been a small shop of the Masjid which he had taken for storing goods but the Masjid people got it vacated for constructing a bathroom. In these circumstances, the comparison of hardship made by the Appellate Authority is vitiated by the omission to count material circumstances pertinent to the tenant' hardship which makes the finding one sided and perverse, and this part of the finding must be struck down.;