R.R.K. Trivedi, J. - (1.) HEARD Sri L.P. Naithani, learned counsel for the petitioner and Sri Rajesh Tandon, learned counsel for the respondents. This petition has been filed by tenant, challenging the order passed by Appellate Authority dated 26th July, 1984 passed in appeal filed by respondent No. 3 against the judgment of the Prescribed Authority dated 28th May, 1982, by which his application for release of the shop in dispute was rejected by Prescribed Authority. The facts in brief giving rise to this writ petition are that respondent No. 3, Lakshmi Chand filed an application under Section 21(a) of U.P. Act No. 13 of 1972 for release of his one shop out of two shops, one occupied by the petitioner and another occupied by one Pursottam Arya. Prescribed Authority after considering the evidence on record recorded finding that the need of respondent No. 3 is bona fide and genuine. However, after considering the comparative hardship he rejected his application against both the tenants by order dated 20th May, 1982. Aggrieved by this order an appeal was filed by Lakshmi Chand, which has been partly allowed and the shop occupied by the petitioner has been released in favour of landlord. Aggrieved by this judgment, the present petition has been filed.
(2.) SRI L.P. Naithani, learned counsel for the petitioner submitted that respondent No. 1, the Appellate Authority has seriously erred in allowing the application for release of the shop in dispute and he has failed to apply his mind. Sri Naithani submitted that the petitioner filed affidavit showing that 14 tailors ware employed by petitioner and for accommodating them sufficient accommodation was required, However, respondent No. 1 has failed to consider the affidavit, which is Annexure -10 to the writ petition and has illegally observed that only 6 tailors were employed by petitioner. Sri Naithani has further contended that Appellate Authority has also erred in taking into consideration the shop situate at Sahastradhara Road, which is not available to petitioner for his business, this fact was disputed from the very beginning. Relying on his averments in para 13 Sri Naithani contended that accommodation at Sahastradhara Road belong to one of the four partners of the petitioner company namely; A.T. Sarkar and it could not be available for the business of the firm. Sri Naithani further submitted that considering the magnitude of the business of the petitioner -company the respondent No. 1 ought to have considered the persons employed and accommodation required for their sitting, as the mind has not been applied by respondent No. 1 towards this fact, the judgment is vitiated and suffers from manifest error of Jaw. Sri Rajesh Tandon on the other hand submitted that bona fide need of the respondent No. 3 has been concurrently accepted by both the Authorities below and even if one shop is excluded from consideration namely; situated at Sahastradhara road, it shall not make any difference. The finding recorded by the Appellate Authority on question of hardship is a finding of fact and shop in dispute has rightly been released in favour of respondent No. 3.
(3.) I have seriously considered the rival contentions advanced by the learned counsel for the parties. It is true that Appellate Authority, respondent No. 1 has not referred to the affidavit filed by the petitioner (Annexure -10 to the writ petition) wherein it has been stated that the number of the tailors employed is 14, their names have also been mentioned in paragraph 2 of the aforesaid affidavit. The learned Appellate Authority has however, mentioned that only 6 tailors sit in the shop in possession of petitioner situate just in front of the shop in dispute. Even assuming that the submission of the learned counsel for the petitioner regarding the afore said fact is correct, in my opinion, it does not affect the finding of Appellate Authority on the question of comparative hardship. The fact that petitioner has 14 tailors employed and they are to be accommodated does not affect the conclusion arrived at by the Appellate Authority as petitioner has several other accommodations. The Appellate Authority has considered the accommodations owned and possessed by the petitioner and has come to a conclusion that the business of petitioner will not be affected in any manner, if the shop in dispute released in favour of respondent No. 3. It has been found that the petitioner has a big shop measuring 38 feet by 10 feet in Palton Bazar, Dehradun. The 14 tailors can be accommodated in this shop.;