R.R.K.Trivedi - (1.) HEARD learned counsel for petitioner and learned counsel for respondents. Counter and rejoinder affidavits have been exchanged. Both the learned counsel for parties have agreed that this petition may be disposed of finally at this stage.
(2.) FACTS giving rise to this petition are that petitioner Balwant Singh filed an application under section 21 (1) (a) of U. P. Act No. 13 of 1972 (hereinafter referred to as the Act) far release of shop no. T/63-B, situate in Mohalla Taakan, Qasba Gangoh, district Saharanpur in which respondent No. 2 Janeshwar Prasad was continuing as tenant, on the allegations that he needed the shop to provide employment to his two sons who had no aptitude for studies and could not study beyond Class X. It was stated that both the sons are sitting idle and are unemployed. The age of the sons stated in the application was 22 years and 19 years respectively of Sudhir Kumar and Sanjiv Kumar. This application for release was contested by respondent no. 2 by filing a written statement which has been filed as Annexure III to the writ petition. I have gone through the written statement filed by the respondent no 2 The application for release was opposed mainly on the ground that both the sons of the petitioner are not unemployed as alleged as they are doing agriculture work along with their grand-father and thus are gainfully engaged in farming business. The age of the sons was also disputed and it was stated that Sanjiv Kumar is less than 15 years of age and Sudhir Kumar is less than 20 years of age. It was also alleged that both are students. Respondent no. 2 also stated that the petitioner tried to evict him from the accommodation in dispute with the help of undersirable elements, by use of muscle power. However, as the district authorities intervened, he could not be evicted from the shop in dispute. Thereafter, a notice was given on 7-10-1985 and two years thereafter this application for release was filed. It has also been stated that he has no alternative accommodation for doing the business of motor winding. His newly constructed house is in narrow lane. It is still not complete and several necessary things to make it habitable could not be provided. This house is situate near bus stand of the town. The respondent no. 2 has also given the number of bis family members and has stated that in case he is evicted from the shope in dispute, he shall suffer irreparable loss and injury as the business of motor winding, which he is doing from the shop in dispute, is the only source of income. In case evicted, he shall be deprived of valuable goodwill earned by him. On these facts it has been asserted that comparative hardship lies in his favour.
(3.) THE prescribed authority by his judgment and order dated 6-12- 1988 allowed the application and released the shop in dispute in favour of petitioner. THE order of the prescribed authority was challenged in appeal No. 375 of 1988 which has been allowed by learned 6th Additional District Judge, Saharanpur and the application for release has been dismissed, hence this writ petition. The learned counsel for petitioner placed before me the finding recorded by the appellate authority on questions of bona fide need of the petitioner as well as the finding on comparative hardship. Learned appellate authority has agreed with the finding of the prescribed authority that sons of the petitioner are unemployed and they are not engaged with their grandfather in farming business However, the learned appellate authority has not accepted the bona fide need of petitioner on three grounds which are mentioned in seriatim : (1) firstly, that the petitioner purchased the shop in dispute in 1973 with full knowledge that it was occupied by a tenant. If he had an idea to use the disputed shop for employing his sons, he should have preferred to purchase a vacant shop. (2) secondly, that a notice was given to the tenant on 7-10-1985 but the application for release was filed on 2-7-1987. (3) The third ground is that petitioner resorted to extra legal methods to get the shop vacated by use of muscle power through undesirable elements.;