N.D.OJHA, J. - (1.) RESPONDENT No. 3 Prem Swarup is the tenant of a shop of which the petitioner is the landlord. An application was made by the petitioner for release of the aforesaid shop under Section 21(1)(a) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act) on the ground that he needed it bonafide for the use of his son Rakesh Kumar who was likely to obtain a diploma in pharmacy in the month of June, 1978 and would carry on the business of selling medicine in the said shop. The application for release was filed on 7th November, 1977. It has not been disputed that during the pendency of the proceedings Rakesh Kumar son of the petitioner did not obtain a diploma in Pharmacy. The application was contested by the petitioner and was dismissed by the Prescribed Authority. An appeal was filed by the petitioner against that order before the District Judge which has been dismissed on 10th August, 1979 by respondent No. 1. It is these two orders which are sought to be quashed in the present writ petition.
(2.) IT was urged by counsel for the petitioner that respondent No. 1 even after having found that the need of the petitioner was covered by Section 21(1)(a) of the Act, and that there was sufficient material on the record to conclude that the petitioner wanted to establish his son who had obtained diploma in Pharmacy erroneously dismissed the application for release holding that the need of the petitioner was not pressing inasmuch as he had not specifically deposed that his financial status as to establish a medicine shop. It has further been urged by counsel for the petitioner that the finding even on the question of comparative hardship, as recorded by the respondent No. 1, suffers from a manifest error of law inasmuch as the ground on which the circumstance that respondent No. 3 was about to obtain possession over another shop during the pendency of the proceedings under Section 21 of the Act has been brushed aside, is wholly irrelevant. In this connection emphasis has been placed by counsel for the petitioner that no plea had been raised by respondent No. 3 in his written statement that the financial status of the petitioner was not such as to be able to establish a medicine shop and, consequently, there was no occasion for the petitioner to produce any evidence in this behalf. In order to establish that the petitioner has been prejudiced on this score, some material in the nature of fixed deposit receipts etc. has been produced before this Court indicating that the petitioner did have financial status to establish a medicine shop. For the respondent No. 3, on the other hand, it has been urged by his counsel that it was for the petitioner, in order to establish that his need was bonafide, to prove if affirmatively that he had the financial status to establish a medicine shop and he not having done so, no exception can be taken to the finding recorded by respondent No. 1 in this behalf. It was also urged by counsel for respondent No. 3 that the petitioner was the owner of some other shops also and nothing has been shown as to why he chose the respondent No. 3 for making an application for release in preference to the other tenants. According to counsel for respondent No. 3, since respondent No. 3 was an old tenant, the application for release should have been filed against some such tenant who was a tenant for a comparatively lessor period of time. It has further been urged that the finding recorded by respondent No. 1 on the question of comparative hardship was essentially a finding of fact and could not be disturbed under Article 226 of the Constitution.
(3.) HAVING heard counsel for the parties at some length, I am of the opinion that the impugned order passed by respondent No. 1 cannot be sustained. It is true, as has been pointed out by counsel for the petitioner that respondent No. 1 has recorded a categorical finding that the need cited in the application for release by the petitioner was covered by Section 21(1)(a) of the Act and also that there was sufficient material on the record to conclude that the landlord wanted to establish his own son in business who had just obtained a diploma in Pharmacy. After recording the aforesaid finding the respondent No. 1 proceeded to consider the argument raised on behalf of respondent No. 3, that the petitioner did not have the financial status to establish a medicine shop. After pointed out that the petitioner had not given any evidence in regard to his financial status, respondent No. 1 took the view that the need of the petitioner could not be held to be a pressing one.;