S.U.KHAN, J. - (1.) THIS is landlord's writ petition arising out of eviction/release proceedings initiated by him against tenant-respondent, on the ground of bona fide release under Section 21 U.P. Act No. 13 of 1972. The rent of the house in dispute is Rs. 40/- per month. Release application was registered as P.A. case No. 16/80. The Prescribed Authority through judgment and order dated 25-6-1985 rejected the release application against which the landlord petitioner filed Misc. Appeal No. 91 of 1981. The appeal was dismissed on 3-9-1985, hence, this petition.
(2.) BOTH the courts below held that the landlord did not have any bona fide need as he was residing along with his family in one room in his father-in- law's house. The residence of a person in his father-in-law's house is only as a licensee. Possession of some building by landlord as licensee can never be taken to be a ground to reject the release application as held by Supreme Court in M.E. Kshirsagar v. Traders and Agencies, 1996(2) RCR(Rent) 233 : AIR 1997 SC 59. Even otherwise in Indian Society, it is not considered graceful for a person to reside with his wife and children in his father-in-law's house. In this view of the matter, the orders of the courts below holding the need of the landlord not to be bona fide are erroneous in law. As far as comparative hardship is concerned, tenant had got his own house when release application was filed. When release application was filed the house of the tenant was beyond the limit of Municipal Board of Baraut where house in dispute is situate. However, in the year 1982-83 the limit of Municipal Board Baraut was extended and the said house came within the limit of Municipal Board. Landlord had also initiated eviction proceeding in the form of a suit against the tenant on the ground of default. The said matter also came to the High Court in the form of writ petition No. 5029 of 1985 which has also been decided today. In the said proceedings it was held that the tenant was in possession of the said house. During the pendency of the appeal which was filed by the landlord against rejection of his release application tenant sold his house. This fact is mentioned in the judgment of appellate court. Strangely enough the appellate court held that as the said house had been sold by the tenant, it could not be taken into consideration while deciding the question of comparative hardship. No tenant can be permitted to assert his hardship if during the pendency of release proceedings he sells the alternative building available to him.
(3.) THE Prescribed Authority also held that tenant was a Thekedar (Contractor) and the people knew that he was residing in the house in dispute, hence, he had earned a sort of good will from the house in dispute. The Prescribed Authority observed that the house owned by the tenant was situated away from the main abadi, hence, he would not be able to get any business if he started residing therein and he would be staring the road throughout the day. In this regard firstly it is to be noted that the house in dispute was let out to the tenant respondent for residential purpose and not commercial purpose. Secondly Thekedars do not get customers daily. Even one contract daily is sufficient to keep a Thekedar engaged for month. Thekedars are not expected to receive scores of the customers daily like retailers.;