S.K. Mukerjee, J. - (1.) I have heard learned counsel for the parties. The dispute relates to four shops. Respondent No. 2 who is the landlord of the accommodation in dispute, is a doctor. The petitioners are tenants. It appears that Respondent No. 2 moved an application under Section 21(1)(a)(b) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act). Thus the application of the landlord is both for personal need as also on the ground that the accommodation in question is in dilapidated condition as was required for the purposes of demolition and new construction. The Prescribed Authority after discussing the entire material on record dismissed the application of the landlord. Thereafter the landlord preferred an appeal. The appeal is registered as Rent Control Appeal No. 12 of 1989. The above appeal of the landlord has been allowed by the Third Additional District Judge, Nainital, Camp at Haldwani by the impugned judgment dated 19 -12 -1989.
(2.) THE case of the landlord in substance is that the four shops in possession of the tenants are very old and are in dilapidated condition and required demolition and reconstruction. The purpose is to construct Nursing Home. However, the case has been developed at the appellate stage that the landlord also wanted to construct some new shops which he proposes to give to the tenants. Aggrieved by the impugned judgment of the lower appellate court the tenants have filed the present writ petition. I have perused the judgment as also heard the learned counsel for the parties and have gone through the materials on record and thus examined the impugned judgment. I am of the opinion that the judgment of the lower appellate court deserves to be quashed and the whole matter requires consideration by the lower appellate court. On perusal of the impugned, judgment of the lower appellate court it is clear that the lower appellate court has not recorded any clear finding as to whether the need of the landlord is bona fide and genuine. The lower appellate court has also not recorded any finding taking into consideration the likely hardship of the tenants on the grant of the application as against the hardship of the landlord on the refusal of the application. In fact if the landlord's application is treated under Section 21(1)(b) of the Act then the provision of Rule 17 of the Rules framed under the Act have to be followed. The lower appellate court has approached the case on the premises that the application of the landlord is moved under Clauses (a) and (b) of Section 21(1) of the Act. In the absence of the finding regarding bona fide need and the finding on the comparative hardship of the parties the impugned judgment of the lower appellate court cannot be sustained. The lower appellate court has approached the case merely on the basis of the offer of certain shops as the alternative accommodation to the tenants. The offer may be fair or not but that is the question to be considered by the lower appellate court in case it is held by the lower appellate court that the need of the landlord is genuine and the comparative hardship of the landlord and that of the tenants, as has been mentioned. In the result the writ petition is allowed and the impugned judgment of the lower appellate court dated 19 -12 -1989 passed in Rent Control Appeal No. 12 of 1989 by the III Additional District Judge, Nainital is quashed. The case is remanded back to the lower appellate court with a direction to decide the appeal afresh keeping in view the observations/directions made above in this judgment. The learned counsel for the parties are present in Court. The Parties to this writ petition are directed to present themselves before the District Judge, Nainital on 1 -8 -1991 and file a certified copy of this judgment passed in the above writ petition to -day. The learned District Judge may himself decide or transfer the appeal to any other Additional District Judge for final decision within a period of one month. It is also made clear that the matter shall be decided on the basis of the material already existing on record and no fresh evidence shall be taken and no unnecessary adjournments shall be granted to the parties. There shall be no orders as to costs.;