M.N.SHUKLA, J. - (1.) THIS writ petition is directed against the order dated 25.11.1976 passed by the Prescribed Authority, Mirzapur rejecting the petitioner landlord's release application under Section 21(1)(a) of U.P. Act No. 13 of 1972 (hereinafter referred to as the Act) and the order dated 21.7.1979 passed by the IInd Additional District Judge, Mirzapur dismissing the appeal preferred by him.
(2.) THE petitioner had applied for release of the shop situate in Mohalla Dhundhi Katra Road near Gurhatti Bazar, Mirzapur City occupied by respondent No. 3 as a tenant. The allegations made in the application were that the petitioner had retired as a principal in 1962 and thereafter, was surviving on a partly pension of Rs. 75/- per month only, that his son aged about 21 years at the time of moving the application was also unemployed, that he, therefore, had a plan that he along with his son would start a crockery or some other business in order to be able to make some income and for that purpose they required the shop in dispute. The application was resisted on the ground that the petitioner himself was too old to start a new business and his need was not bonafide or genuine. As regards the need of the contesting respondent it was stated that he had been running a 'pan', 'tea' and 'Namkin' shop in the accommodation in dispute for the last more than 20 years which was his sole means of livelihood and that he would suffer great hardships in the event of his being evicted. The application was dismissed by the Prescribed Authority by order dated 25.11.1976. The petitioner preferred an appeal which was also dismissed by the Appellate Authority by its order dated 21.7.1979. The petitioner has challenged these two orders in this writ petition. It is significant that the Appellate Authority recorded a categorical finding that the petitioner-landlord and his son wanted the shop in dispute for setting up the proposed business as stated by them and that the need of the bonafide and genuine. The conclusion at which the Prescribed Authority had arrived on that aspect of the case was very peculiar. I am unable to endorse its non-chalant observation that it was too late in the day for the petitioner to embark on a business venture, that since he had failed to start any business for a long time after taking-retirement, there was no point in his intending to start any business now. On the contrary, the Appellate Authority positively held that the petitioner's need was bonafide and genuine, but it fell into a grievous error when making a comparative assessment of the hardship likely to be caused to the parties in the event of either granting or refusing release of the shop in dispute. The Appellate Authority held that there was evidence to the effect that the petitioner's son had served only as apprentice of cinema operator for some time. It also found that he was sometimes engaged in selling lottery tickets. On the basis of these stary odd jobs the Appellate Authority drew the inference that the petitioner's son was not actually unemployed. On the other hand, the Appellate Authority was greatly impressed by the fact that the respondent-tenant had been doing the business of 'Pan, tea and Namkin' in the shop in dispute for a long time and in the event of the release application being allowed he would be thrown on the street' and would be deprived of his means of livelihood. For these reasons the learned Judge upheld the order of the Prescribed Authority and rejected the release application. After hearing the learned counsel for the petitioner. I am of the opinion that the impugned orders are erroneous in law and cannot be sustained. Even though ostensibly this finding about the greater hardship of the tenant might appear to be one of fact, yet I have no hesitation in holding that if such finding is reached on a manifestly wrong approach of law, the orders stand vitiated and must be set aside. The object of U.P. Act No. 13 of 1972 was not to abolish the right of either tenants or landlords lock, stock and barrel. It was intended only to act as a brake on the unbridled tendency of the landlords to evict their tenants. There are conspicuous provisions in the Act which really protect the rights of the landlords but at the same time a wholesome and effective curb has been imposed on their choosing to evict their tenants at will. Under the scheme of the Act an accommodation can be available to a landlord by evicting a tenant only when the former is at pains to make out a case for release either under Section 16 or Section 21 of the Act. The conditions provided in these provisions have to be strictly established and then alone the landlord can succeed in obtaining release of an accommodation in his favour by eviction the tenant. This however, does not mean that the right of a landlord to apply for release and succeed in obtaining the same by proving his case to the satisfaction of the relevant authority has been completely barred. The first condition which has to be established in granting the release under Section 21 of the Act is that the landlord's need is genuine and bonafide. Thereafter unless the case is covered by an exception the second condition has to be satisfied, namely, that in the event of release being refused the landlord was likely to suffer greater hardship. It is on the satisfaction of these twin conditions that a release application can be allowed. But some times the authorities in a rather superficial and perfunctory manner and obsessed with the supposed intention of the Legislature to protect the tenants alone fail to apply correctly and with precision the touchstone of comparative hardship. It is a common place fact that invariably when an application under Section 21 of the Act is allowed, the tenant has be quit and this involves discomfort but if this alone were sufficient to non-suit the landlord, no application for release could ever be allowed. Judging comparative hardships is a matter of deeper import and it would be a lopsided order which dismisses a landlord's application for release merely with the plaititudinous observation that the tenant would be "thrown on the street". The physical dispossession of the tenant is the necessary concomitant of every release application of the landlord which is allowed. Howsoever well-found that the application may be, an element of inconvenience or discomfort is inherent in the very process of vacating on accommodation. A release application cannot be thrown out merely with the bald observation that the tenant would suffer greater hardship. All the relevant factors have to be taken into account and a balance has to be struck and then if it is found that inconvenience suffered by the tenant in the event of eviction is of such gravity that it outweighs the hardship which would be occasioned to the landlord by refusal of release, the application may be rejected. So it would not do for an authority merely to say that the tenant would suffer greater hardship. The matter should not rest there. It must be probed further and every salient factor should be taken into account such as whether the tenant is actually carrying on business in the accommodation whether the business is of such proportion of such nature or in such locality that alternative accommodation for prosecuting the same cannot be found out and whether it is a residential accommodation and whether the availability of other suitable accommodation is on the facts of the case remote or otherwise. If the matter is scrutinized thread bare, it might be possible in a majority of cases to hold definitely that the nature of the business carried on was such that the replacement of one accommodation by another was possible with or without difficulty or was impossible on account of insurmountable inconvenience or difficulty. Thus, for instance, in the instant case it has been found that the tenant has been carrying on 'Pan, tea and Namkin' business, the last two items having been commenced recently whereas the 'Pan' business is alleged to have been carried on for a long time. Obviously such business is neither intrinsically of such nature nor has it any pretensions to such magnitude that for carrying on the same arrangement cannot be made elsewhere. It is a modest tea stall requiring neither elaborate fixtures nor sophisticated accommodation.
(3.) IT is also palpably unfair to hold in the present case that the landlord's son who is having virtually no stable source of employment and has just been picking up such odd jobs now and then as that of selling lottery tickets should be treated as one having employment and not entitled to an opportunity of starting a regular business in the disputed shop. Law cannot be so cynical as to declare. While the tenant must prosecute his business and make profits, it is of no consequence if the landlord's son continues to swell the rank of the unemployed and "the primrose path of dalliance tread". It would not be inappropriate to cite the observations of the Supreme Court made in M/s. Bega Begam and others v. Abdul Ahad Khan and others, 1979(1) Rent Control Reporter 170(SC). "In view of our findings it has been established that the landlords have not a genuine requirement to possess the house, but it is necessary for them to do so in order to augment their income and maintain themselves properly. Being the owners of the house they cannot be denied eviction and be completed to live below the property line merely to enable the respondents to carry on their flourishing hotel business, at the costs of the appellants." It is significant that in the above case the Supreme Court interfered with the concurrent findings of fact recorded by the lower courts on the ground that those findings had been arrived at by adopting a wrong legal approach. As observed in paragraph 27 of the Reports : "Before closing the judgment we would like to observe that normally this court does not interfere with concurrent findings of facts but as the High Court as also the trial court have made a legally wrong approach to this case and have committed a substantial and patent error of law in interpreting the scope and ambit of the words 'reasonable requirement' and 'own possession' appearing in Section (1)(h) of the Act and have thus misapplied the law and overlooked some of the essential features of the evidence as discussed by us we had to enter into the merits of the case in order to prevent grave and substantial injustice being done to the appellants." In Bega Begum's case (supra) the Supreme Court disapproved of the fact that the courts below were swayed by the consideration that the respondent would be 'thrown on the road', that the defendants had been running the hotel which was the only source of subsistence for 30 years. It was emphasized that even though this might have been a weighty consideration, yet other factors had also to be taken into accounts, such as, whether there was no possibility of the defendants getting alternative accommodation elsewhere for carrying on the business. Bega Begum's case was followed by a learned single Judge of this Court in Radhey Shyam v. Addl. District Judge, Bulandshahr and others (2). In that case the release application of the landlord was eventually allowed by the High Court and it was ruled that the learned District Judge in disposing of the appeal had fallen into patent errors of law, firstly, he was not right in holding that since the tenant had been carrying on business for forty years and had earned a goodwill, the petitioner was not entitled to release of the accommodation on the ground that he wanted the shop for setting up his son in business. Secondly it was wrongly held that the landlord's claim could be rejected on the short ground that he had to make a start while the tenant had already been in the business for a longer time. It was also stressed that merely because the finding was that it was not possible for the tenant to secure alternative accommodation in the same locality the released application should not have been rejected. It was the duty of the authorities concerned to proceed further and explore the possibility of the tenant securing alternative accommodation elsewhere and not necessarily or exactly in the same locality. Therefore, the consensus of opinion appears to be that granting or refusing release on the basis of comparison of hardships cannot be reduced to a mechanical formula or to a rule of the thumb. It is not enough to say that the tenant has an old business and has established goodwill in the accommodation is dispute and that he would be 'thrown on the street' and that it would be wellnight impossible for him to obtain any accommodation of the like nature in close proximity. Enquiry has to be quashed further and other surrounding circumstances have to be examined such as the possibility of the tenant being able to make the second best arrangements so as not to be reduced to a state of object helplessness. Unless these conclusions are also drawn the balance cannot title in the tenant's favour. To the same effect are the observations of R.B. Lal, J. in Kamil Khan v. IIIrd Additional District Judge, Breilly and others (3). He observed : "Now the question of comparative hardships on the parties is to be considered from the stand point that no alternative accommodation is available to the tenant. As said earlier, the need of the landlords to have more accommodation for residential purposes is quite genuine and bonafide as well as pressing. The application of the landlord cannot be rejected on the ground that no alternative accommodation is available to the tenant for shifting his residence. The law does not provide for rejection of the application of the landlords on such a ground". ;