Sibghat Ullah Khan, J. - (1.) THIS is landlord's writ petition. Petitioner Abdul Azia (since deceased and survived by legal representative) had filed release application under section 21 of U.P. Act No. 13/72 against tenant respondent No. 2 -Atar Singh seeking his eviction from shop in dispute. In the release application it had been stated that the landlord required shop in dispute for his second son Mohd. Islam. It had been stated further that Mohd. Islam was carrying on business of cloth selling as hawker. In the release application, it was also stated that building was in dilapidated condition. However, if bona fide need of the landlord is proved it is immaterial as to whether building in dispute is in dilapidated condition or not. The release application was registered as Misc. Case No. 78/81. Prescribed Authority/Munsif, Mainpuri through judgment and order dated 4.5.1982 allowed the release application and directed the landlord to pay two years rent as compensation. Rent is Rs. 10/ - per month. Against the said judgment and order tenant filed Misc. Appeal No. 53/82. Lower Appellate Court framed point No. 1 in respect of dilapidated condition and decide the same in favour of the tenant holding that building was not in dilapidated condition. Under point No. 2 it was decided that landlord had no bona fide need. Under point No. 3 it was decided that tenant would suffer greater hardship in case release application was allowed. Ultimately, Lower Appellate Court/II A.D.J., Mainpuri through judgment and order dated 30.7.1988 allowed the appeal, set aside the judgment and order passed by the Prescribed Authority hence this writ petition.
(2.) LOWER Appellate Court under Point No. 2 pertaining to bona fide need has given only one reason i.e. why need was felt when Mohd. Islam attained the age of 36 years and not before? According to Lower Appellate Court in case need had been bona fide then release application would have been filed 10 or 12 years before when Mohd. Islam was about 24 or 25 years of age, which is the normal age for a person to start business. There is nothing wrong in changing the business from a hawker to a shopkeeper at the age of 36 years. 35 years of age is such a milestone in human life where people think about switching over from the life of 'fast lane' (or hawking in narrow lanes) if a person is carrying on business as hawker then his need for a permanent shop can never be said to be not bona fide. Lower Appellate Court was also unnecessarily swayed by the fact that tenant was carrying on business for 30 years before filing of the release application. The Prescribed Authority had awarded damages of two years as required by second proviso to section 21(1) of U.P. Act No. 13/72 to compensate the tenant for the loss of goodwill. In my opinion the Lower Appellate Court committed error of law in reversing the finding of bona fide need recorded by the Prescribed Authority. As far as comparative hardship is concerned the above aspect was again considered by the Appellate Court. Appellate Court held that son of the landlord was carrying on business, as hawker while tenant had no other accommodation to shift his business. The tenant did not show that he had made any efforts to search alternative accommodation after filing of release application, Lower Appellate Court did not touch this aspect. The Supreme Court in B.C. Bhutada v. G.R. Mundada : AIR 2003 SC 2713, has held that this fact itself is sufficient to tilt the balance of the comparative hardship in favour of the landlord. Lower Appellate Court under Point No. 3 (comparative hardship) also observed that the business of cloth selling proposed to be started by Mohd. Islam could be accommodated in the baithak of residential house. No landlord can be compelled to use residential accommodation for commercial purposes. It has been held by the Supreme Court in Sarla Ahuja v. U.I. Insurance Co. : AIR 1999 SC 100, in para. 14 as follows: It is often said by Courts that it is not for the tenant to dictate terms to the landlord as how else he can adjust himself without getting possession of the tenanted premises. While deciding the question of bona fides of the requirement of the landlord it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted himself. Accordingly, in my opinion judgment and order passed by Appellate Court is liable to be quashed. Writ petition is allowed. Judgment and order passed by the Appellate Court is set aside. Judgment and order passed by the Trial Court is restored. Tenant respondent No. 2 is granted nine months time to vacate the premises in dispute provided that within one month from today he files an undertaking before the prescribed authority to the effect that on or before expiry of the aforesaid period of nine months he will willingly vacate and handover the possession of the property in dispute to the landlord. ;