Vikram Nath, J. - (1.) THIS is a landlord petition for quashing the judgment dated 23.8.1984 passed by IVth Additional District Judge, Aligarh in U.B. Appeal No. 26 of 1983 Afsar Ali v. Harish Chandra Gupta filed by tenant which was allowed and the application of the landlord petitioner for release under section 21(1)(a) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (in short the Act), was rejected. The petitioner is the owner and landlord of the shop in dispute situate in Qasba Sikandra Rao, District Aligarh. Afsur Ali (respondent No. 2) was the tenant in the said shop at the monthly rent of Rs. 6/ - per month. The petitioner was carrying on the business in a rented accommodation (rented out to his brother Mahesh Chandra) at the mercy of his brother at a monthly rent of Rs. 115/ - per month. He required shop in dispute which had fallen in his share in the family partition. Accordingly the petitioner applied for release of the same under section 21(1)(a) of the Act. It was further alleged in the application that Afsar Ali had got a building constructed having many shops on the same road on which the shop in dispute was situated and, therefore, he could easily shift his business in any of the shops constructed in the new building. It was further the case of the petitioner that he was paying monthly rent of Rs. 115/ - per month for carrying on the business whereas his own building had been in possession of the tenant -respondent at a monthly rent of Rs. 6/ - per month and, therefore, also he was suffering greater hardship. The application was registered as P.A. Case No. 19 of 1980. The tenant contested the application and denied its contents. The Prescribed Authority, vide judgment dated 24.2.1983 held that the need setup by the petitioner was bona fide and genuine and that the tenant shall suffer lesser hardship in case eviction order was passed as he had alternative accommodation available where he could shift his business. Against the said judgment appeal was filed by the tenant under section 22 of the Act which was registered as U.P.U.B. Appeal No. 26 of 1983. The Appellate Court has allowed the appeal and has rejected the application for release filed by the petitioner. Against the said judgment the present petition has been filed.
(2.) I have heard Sri. V.P. Varshney, learned Counsel for the petitioner and the learned Standing Counsel. Despite sufficient notice no one has put in appearance for the respondents. It is contended by Shri Varshney, learned Counsel appearing for the petitioner that the Appellate Court committed error while recording finding of bona fide need and comparative hardship inasmuch as it failed to consider the accommodation available with the tenant which had been considered and relied upon by the Prescribed Authority, Paper Nos. 27 -C and 28 -C are on record and were considered by the Prescribed Authority, for holding that the tenant had a shop in Qasba Sikandra Rao by the side of the road from where he could carry on his business. These papers/documents have not at all been considered by the appellate authority. Further the Prescribed Authority held that even though the house was in the name of the son of the tenant, but still he had an alternative accommodation available which was a new construction also for carrying on his business. Whereas on the contrary the petitioner had no accommodation/shop available with him. A perusal of the impugned order dated 23.8.1984 shows that the Said documents have not been considered. The next contention of the Counsel for the petitioner is that the reasoning given by the appellate authority that petitioner is paying higher rent for carrying on his business whereas he is getting lesser rent from his own premises in occupation of the tenant cannot be a ground for bona fide need is erroneous. Irrespective of the rate of rent which the landlord may be paying to run his business and the rent he may be getting from the tenant the desire of the landlord to run his business from his own premises will always be a genuine and bona fide need. No landlord can be compelled to carry on business from a rented accommodation and on the other hand the tenant may be allowed to carry on business from the shop owned by the landlord. Further, if the landlord is paying higher rent for carrying on his business and is getting lesser rent from the tenant carrying on business from the premises owned by the landlord in my view would amount to greater, genuine and bona fide need. In case the landlord can carry on his business from his own accommodation rather than carrying on it from a rented accommodation and that too by paying a higher rent can always be said to be genuine and pressing need of the landlord. The reasons given by the Appellate Court is thus not correct.
(3.) THE next contention of the Counsel for the petitioner is that the reasoning given by the Appellate Court in holding that the petitioner had not come up with clean hands and had concealed the material fact that the shop from where he was carrying on his business was not in his tenancy but in the tenancy of his brother again appears to be fallacious. The fact remains that the shop from where the petitioner was carrying on his business was a rented accommodation whether in the brother's name or in the petitioner's name, in any case, it was not a shop owned by him and he had to pay rent to the landlord of that shop or to his brother as the case may be. In view of the above observations, I find that the judgment of the Appellate Court cannot be sustained and has to be set aside. The tenant despite notice has not come forward to contest the petition. More than 20 years have passed since the petition was filed and almost 24 years have passed since the application for release was filed. The tenant has not come forward to say that in the meantime he is trying to locate any other accommodation and has been unsuccessful of that there has been any genuine effort on his part to get an alternative accommodation in which he failed. In view of the facts and circumstances. I am not inclined to remand this matter to the appellate authority. The findings recorded by the Prescribed Authority deserves to be accepted. Accordingly the writ petition succeeds and is allowed. The impugned judgment dated 23.8.1984 is set aside and that of the Prescribed Authority dated 24.2.1983 is affirmed.;