- (1.) S. U. Khan, J. This is landlady's writ petition arising out of eviction/release proceedings initiated by her against tenant respondent No. 1 on the ground of bona fide need under Section 21 of U. P. Act No. 13 of 1972 (U. P. Rent Regulation Act ). The release application was registered as Misc. Case No. 18 of 1986 on the file of Prescribed Authority/civil Judge Azamgarh. The need set up in the release application was for parking car in the property in dispute. Property in dispute is a garage which is being used for commercial purposes by the tenant respondent No. 1. Prescribed Authority by judgment and order dated 24-2-1989 allowed the release application. Against the said judgment and order tenant respondent No. 1 filed Misc. Civil Appeal No. 48 of 1989. VI Additonal District Judge, Azamgarh through judgment and order dated 26-8-1991 allowed the appeal, set aside the judgment and order passed by Prescribed Authority and dismissed the release application, hence this writ petition by landlady. During pendency of writ petition landlady died and was survived and substituted by her daughter's son.
(2.) IN the release application it was stated that landlady had recently purchased a car and she wanted the garage in dispute for parking her car. The first sentence of para-10 of the judgment of lower appellate Court shows the entire approach of the lower appellate Court. The sentence is quoted below : "it is not the need that paves the way of grant of application but it is genuine need. " The degree of necessity and need is something which is to be taken into consideration while deciding the comparative hardship. Vide B. C. Bhutada v. G. R. Mundada, AIR 2003 SC 2713. The lower appellate Court was unnecessarily swayed by the dismissal of earlier release application where the need of the garage in dispute for keeping cow and calf was rejected. If a garage is not released earlier for keeping cow and calf then it is no need to reject the subsequent release application for keeping car therein. Lower appellate Court also held that husband of the landlady's daughter was employed at Lucknow and they visited Azamgarh where property in dispute is situate only occasionally, hence their need could not be considered. Now the landlady as well as her daughter have died and landlady has been substituted by her daughter's son.
(3.) IT has been held in S. C. Jain v. A. D. J. , 1991 (1) ARC 41, that building may be released for keeping a car. Regarding comparative hardship trial Court held that tenant did not make any effort to search alternative accommodation. Lower appellate Court after holding that the need of the landlady was not bona fide did not decide this question. However, failure of the tenant to search alternative accommodation after filing of the release application is sufficient to tilt the balance of comparative hardship against him Vide B. C. Bhutada v. G. R. Mundada, AIR 2003 SC 2713 (supra ).;