R. H. Zaidi, J. - (1.) Petitioner, who happens to be tenant of the shop described as Godam, Ahata and Gaddi No. 2, (hereinafter referred to as shop in dispute) situated in Mohalla Turnerganj, town Kalpi, district Jalaun, filed the present petition under Article 286 of the Constitution of India challenging the validity of the order passed by the District Judge, Jalaun at Orai, dated 12-5-1989 acting as appellate authority, under Section 22 of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction; Act, 1972, (U. P. Act No. XIII of 1972), (hereinafter referred to as the Act), allowing the appeal filed by respondent No. 2 and releasing the shop in dispute in his favour.
(2.) THE brief facts, which are relevant for the present case, are that the respondent No. 2 filed an application under Section 21 (1) (a) of the Act for release of the shop in dispute including some vacant piece of land. It has been stated that the petitioner has been occupying the shop in dispute as a tenant at monthly rent of Rs. 37. He claimed that he had no son, his wife had already died and two daughters as were already married, one at Kanpur and other married with Dr. S. K. Misra, who was not in any Government service and was unemployed. Respondent No. 2 further pleaded that on account of old age he was hard of hearing, was suffering from short sight and with rheumatic pain. He, therefore, wanted to settle his son-in-law Dr. S. N. Misra in the shop in dispute, so that he may look after him as well as his property by. establishing his dispensary in the shop in dispute, where the aforesaid son-in-law could start his private practice for arugmentation of his income. To avoid any controversy on the facts para graph 10 of the release application is quoted below : ...[VERNACULAR TEXT OMITTED]... The petitioner on receipt of the notice from the Prescribed Authority filed his written statement controverting the allegations made in the release application. It was pleaded that married daughters of respondent No. 2 and their husbands were not the family members of the said respondent. They do not come within the definition of the term family as defined under Section 3 (g) of the Act. It was further pleaded that petitioner has no other place of business and has been carrying on business in the name and style of Bharat Iron Works manufacturing shutters, grills with welding machine etc. It as also stated by the petitioner that the need of respondent No. 2 is neither genuine nor bonafide. He simply wanted to eject the petitioner from the shop in dispute. Firstly, he filed suit No. 24 of 1979 for ejectment of petitioner in the Court of Munsif, which was dismissed and, therefore, the revision and writ petition filed by respondent No. 2 were also dismissed. Petitioner, in the event of ejectment from the shop in dispute, would suffer greater hardship, while in case of rejection of the release application there was no question of any hardship to respondent No. 2. Petitioner also pleaded that Dr. S. K. Misra is well settled at Pukhraya, the shop in dispute, therefore, should not be released on the ground set up by respondent No. 2. The allegations regarding alternative shops of tobacco and cloths made in the release application were also denied by the petitioner, as the said shops were owned by one Nizamuddin. In support of their respective cases, parties have filed the evidence in form of affidavits. Respondent No. 2 also filed the affidavit of Dr. S. K. Misra wherein Dr. Misra has expressed his willingness to start a dispensary at Kalpi.
(3.) THE Prescribed Authority after perusing the materials on record was pleased to hold that the son-in- law and married daughters do not come within the definition of family as defined under Section 3 (9) of the Act, therefore, the need of the son-in-law and married daughters cannot be taken into consideration. It was also held that they were also not residing normally with respondent No. 2 landlord. Further, since the landlord respondent No, 2 wanted to help Dr. Misra and to raise his financial status, therefore, the been set up in the release application cannot be treated to be the need of the landlord. THE Prescribed Authority further found that Dr. Misra has been running his dispensary at Pukhrayan and has also established a good practice in the dispensary situated in Mohalla Turnerganj in Kalpi, the said shop was just situated in front of the disputed shop. Thus need of the landlord was not found to be genuine and bona fide. Having recorded the said finding the release application tiled by the respondent No. 2 was dismissed by the Prescribed Authority on 4-11-1983. Aggrieved by the judgment and order passed by the Prescribed Authority, respondent No. 2 preferred an appeal before the appellate authority, who treated the need of Dr. Misra as need of the landlord and was pleased to allow the appeal and release application filed by respondent No. 2 The appellate authority was pleased to hold that the term family should not be interpreted narrowly so as to exclude from its ambit, the married daughters and son-in-law. While dealing with the clinic of Dr. Misra at Pukhrayan it was observed as under by the appellate authority : "that Dr. Misra had opened another clinic in Pukhrayan is of no value from the point of view of denying the release of the premises to the petitioner, if ho finds time after serving his father-in-law, he may run another clinic in Pukhrayan. " The appellate authority has also not considered the comparative hardship of the parties as required under law and as stated above, was pleased to allow the appeal and released the shop in dispute, in favour of respondent No. 2.;