- (1.) S. U. Khan, J. List revised. Neither any one has appeared for respondent No. 2 nor any counter affidavit on his behalf has been filed.
(2.) THIS is landlord's writ petition arising out of release proceeding initiated by him against tenant- respondent No. 2 under Section 21 of U. P. Act. No. 13 of 1972 for eviction on the ground of bonafide need. The release application was registered as P. A. case No. 330 of 1988 on the file of Prescribed authority/civil Judge, Meerut. The property in dispute is a shop. In the release application it was stated that landlord who was employed in excise department was going to retire in the year 1989 and he intended to start business of general merchandise from the said shop with the help of his two un- employed sons. Prescribed authority held the need of the landlord to be bonafide. Regarding comparative hardship the Prescribed authority held that tenant did not adduce any evidence to show that no other alternative shop was available to him or that he made any effort to search alternative accommodation. The release application was allowed by judgment and order dated 19-5-1990. Tenant- respondent No. 2 filed an appeal against the judgment and order passed by Prescribed authority under Section 22 of the Act. IInd A. D. J. , Meerut through judgment and order dated 7-2-1991 allowed the appeal hence this writ petition. Appellate Court held the landlord guilty of suppressing material facts for the reason that landlord did not state that one of his sons Susheel Kumar was already employed. The lower Appellate Court held that this suppression of material fact amounted to malafides. In para 6 of the release application (copy of which is Annexure -1 to the writ petition), landlord gave details of his family and at serial Nos. 4,5 and 6 therein the names of three sons and their age were given as under: Susheel Kumar (son), aged 23 years, unmarried.
(3.) SANJAY Kumar (son), aged 21 years, unmarried. Anurag Gupta (son) aged 14 years, studying in IX class. In para-8 of the release application it was stated that if landlord was permitted to carry out his plan of starting business from the shop in dispute "it will also relieve the applicant from the grave problem of unemployment of applicant's younger sons. The said paragraph clearly establishes that it was nowhere stated that Susheel Kumar eldest son was unemployed. The only thing which was stated was that only two younger sons namely Sanjay Kumar and Aniurag Gupta were un-employed. Landlord also filed affidavit before the Prescribed authority in support of his case copy of which is Annexure-3 to the writ petition. In para - 28 of the said affidavit it was clearly mentioned that applicant's son Susheel Kumar has managed to take up the Medical Store only in the month of November, 1988. " 4. The entire approach of the lower Appellate Court was utterly perverse. The lower Appellate Court has held that as Susheel Kumar one of the sons of landlord had got a shop hence that shop was available to the landlord and his need stood satisfied. I completely fail to understand as to how shop, which is in tenancy occupation of one of the three sons of landlord, can satisfy the need of the landlord and his other sons. Even otherwise a tenanted accommodation is never considered to be suitable alternative accommodation available to landlord. 5. Regarding comparative hardship the lower Appellate Court was quite benevolent in holding that for the tenant "there arises no question of selecting any other site at a distant place from the printing press shop. " While considering comparative hardship the luxury of selection cannot be allowed to the tenant. The tenant has to show that he could not in spite of his best efforts get any other accommodation to shift his business. If tenant can obtain an alternative accommodation which may be far away from the tenanted accommodation still it will be most relevant for deciding the question of comparative hardship. 6. Accordingly, writ petition is allowed. Judgment and order passed by the lower Appellate Court being utterly erroneous in law is quashed. Judgment and order passed by the Prescribed authority is restored. Petition allowed. .;