Anjani Kumar, J. - (1.) This writ petition under Article 226 of the Constitution of India is filed by the petitioner-tenant. Brief facts are that the petitioner who is tenant of the shop in question for the past 25 years, as asserted in the writ petition, contested an application filed by the landlord under Section 21 (1) (a) of U.P. Act No. 13 of 1972 (in short the Act), whereby the landlord sought the release of the aforesaid accommodation in favour of the landlord on the ground that two sons of the landlord, Sandeep Kumar and Sachin aged 22 years and 20 years respectively, are unemployed, therefore, he requires the shop in dispute for starting new business by these two sons. It is also stated by the landlord that the petitioner-tenant is in possession of self owned house in Ghatampur where he can easily shift his business. It is further asserted that the building in question consists of three shops, out of which one has been release in favour of the landlord put the tenant has obtained an interim order from the High Court and thus the landlord has not been able to get possession of the shop released in his favour. This application was contested by the petitioner-tenant denying the fact that the shop in question is bona fide required by the landlord for establishing his song Sandeep Kumar and Sachin. It is stated by the tenant that Sandeep Kumar is doing business of Sarafa at Shivpuri, Ghatampur which is a developed market area whereas Sachin is running a medical store with his brother Surendra Kumar. It is also stated by the petitioner-tenant that the petitioner made sincere efforts to find a suitable shop but could get a suitable shop. An objection was also raised by the petitioner-tenant that the other co-owner, Smt. Pratibha, has since not joined the application under Section 21 (1) (a) of the Act the application is liable to be dismissed. The prescribed authority by his order dated 22nd January 2003 rejected the application filed by the landlord for the release of the accommodation in question. Aggrieved thereby the landlord preferred an appeal under Section 22 of the Act. The appellate authority by the impugned order allowed the appeal filed by the landlord and directed the shop in dispute is released in favour of the landlord. Thus this writ petition by the petitioner-tenant challenging the order of the appellate authority.
(2.) Learned counsel for the petitioner has argued that the findings arrived at by the appellate authority, whereby the appellate authority has reversed the order passed by the prescribed authority, suffers from manifest error of law and in fact the landlord does not require the shop in question bona fide. It is also asserted by the tenant-petitioner that one shop has already been released by the landlord in which the landlord, if at all require to settle his sons, can establish business for his sons. The appellate authority has observed as under: The appellants (landlords) appear to be right that when the tenant was originally let the shop for more than 25 years ago the children of the petitioner-applicants were either not born or were minor. Although two of the children are engaged somehow in the business but not in better placed position. Even the business of bullion from a house is not convenient. The need of the petitioners appeared to be bona fide because they have already got released one of the shops. But the possession could not be handed over to the landlord, as the matter is pending in the High Court and there is a stay in favour of the tenant. If two of the sons of the petitioners are given the shop, they can open a shop of provisions very conveniently and run a business. Moreover, after all the appellant is the landlord. He must have his own requirements for business, settlement of children and other requirements. A tenant cannot dictate him that he can earn the livelihood from farming and agriculture. It is non of the business of the tenant to say so. If the appellant has agricultural land, it is for his added benefit. Agricultural farming can be no substitute of a business. Therefore, the shop which is under the tenancy of the respondent-tenant is more genuinely required for the benefit of the appellant. Moreover if the respondent is running his shop in the disputed shop for more than 25 years and a litigation is pending, he should have found and tried to search for another shop in the market to run his business. Landlord must have a priority in the settlement of his family, his sons, his requirements, his need and in this respect the Hon'ble. High Court in 2002 (2) ARC page 162 observed that need of the landlord is bona fide and tenant has not made any effort to find out an alternative shop during all these period."
(3.) Thus relying upon the aforesaid decision of this Court and also the decision of this Court reported in 2002 (2) ARC 539, Khubi Ram (Smt.) and Ors. v. IVth Additional District Judge, Jhansi the appellate authority recorded a finding that need of the landlord is bona fide and also found that the tilt of comparative hardship is also in favour of the landlord. Thus the order of the prescribed authority was set aside. The appeal was allowed. The shop in question was released in favour of the landlord.;