ANJANI KUMAR, J. - (1.) BY means of present writ petition under Article 226 of the Constitution of India, the petitioner -tenant challenges the order dated 5th April, 2003, passed by the appellate authority under the provisions of the U.P. Act No. 13 of 1972, whereby the appeal filed by the respondent -landlord against the order dated 21st December, 1998, passed by the prescribed authority was allowed by the appellate authority and the accommodation in question was released in favour of the respondent -landlord.
(2.) THE facts leading to the filing of present writ petition are that the landlord filed an application under Section 21 (1)(a) of the U.P. Act No. 13 of 1972, here -in -after referred to as 'the Act', for the release of the accommodation, which is a shop, in favour of the landlord, who wants to settle his son in the business. It is thus stated by the landlord that the accommodation was bona fide required. On the question of comparative hardship, it is stated by the landlord in the application under Section 21 (1)(a) of the Act that the petitioner -tenant keeps the shop in question closed and secondly he has another rented shop in front of Dr. Raj and thirdly the petitioner -tenant can occupy the shop on rent in Prem Tiwari Market, Friend Market and Bharat Dubey Market, situated in front of Navbharat hotel. With these allegations, the application under Section 21 (1)(a) of the Act was filed, which was contested by the petitioner -tenant. The petitioner -tenant has also taken up a plea that the shop in question was jointly owned by Laxmi Narain and Babu Lal and there is no evidence on record that there is any family settlement as alleged by the landlord, wherein the shop in question has come in the share of Laxmi Narain and since Babu Lal has not been impleaded in the present proceeding, therefore, the application under Section 21 (1)(a) of the Act is not maintainable. There is no evidence on record that the tenant has any other shop in front of Dr. Raj and in fact the tenant has only the shop in question from where he is running his business, which is well established. On the question of alternative accommodation, it has been asserted by the petitioner -tenant that no shop is vacant in Bharat Dubey Market and in respect of the shops of Prem Tiwari Market, since the constructions in Prem Tiwari market are in dispute, therefore, it should not be advisable to go for the shop in the aforesaid Prem Tiwari market, thus, there is no bona fide need of the landlord and the tilt of the comparative hardship is also not in favour of the landlord. Before the prescribed authority the point that Babu Lal has not been impleaded as applicant in the application found favour and the application filed by the respondent -landlord under Section 21 (1)(a) of the Act has been held to be not maintainable.
(3.) AGGRIEVED thereby, the respondent -landlord preferred an appeal before the appellate authority and the appellate authority vide order impugned in the present writ petition dated 5th April, 2003 allowed the appeal filed by the landlord and directed the release of the shop in question, situated in premises No. 397 -A, Sadar Bazar, Jhansi. The appellate authority formulated the following three questions for decision between the parties. (1) Whether there is any legal impediment in entertaining the release application on the ground that the co - owner/his heirs have not joined in the application? (2) Whether the landlord has bona fide and genuine need of the accommodation in question? (3) What is the tilt of the comparative hardship? ;