- (1.) S. U. Khan, J. This is landlord's writ petition arising out of eviction/release proceedings initiated by Faiyaz Khan original landlord petitioner since deceased and survived by legal representatives against Dr. Aziz who died during pendency of the proceedings before prescribed authority and was substituted by respondent Nos. 3 to 13 in the form of case No. 102 of 1980. It was filed on the ground of bona fide need under Section 21 of U. P. Act No. 13 of 1972 before prescribed authority.
(2.) RELEASE application was initially allowed on 29-1-1982 finding the need of the landlord to be bona fide and deciding the question of comparative hardship also in favour of the landlord. However the said judgment was set-aside in part in appeal and the matter was remanded to the prescribed authority to decide the question of comparative hardship again. After remand prescribed authority/additional Civil Judge, Jhansi dismissed the release application on 31-10-1985, however in the said judgment also bona fide need of the landlord was found to be fully established. RELEASE application was dismissed on two grounds; firstly it was held that Dr. Amin one of the substituted legal representatives of original tenant Dr. Aziz had inherited not only the tenancy but the practice of his father and in case he was ejected he would (sic) the patients of his father. The other ground taken by the prescribed authority for rejecting the release application was that the tenancy was continuing since the time of father of the applicant Faiyaz Khan and as his father had left behind other sons also (i. e. brothers of Faiyaz Khan) hence release application was not maintainable as the other landlords had not signed the same in accordance with Rule 15 (2) of the rules framed under the Act. This question is no more res integra. A Full Bench authority of this Court in Gopal Das v. A. D. J. , 1987 (1) ARC 281, has held that even one of the landlords can file release application under Section 21 of the Act. Against the judgment and order dated 31-10-1985, landlord petitioner Faiyaz Khan filed R. C. Appeal No. 71 of 1985. IInd Additional District Judge, Jhansi dismissed the appeal through judgment and order dated 22-4-1989, hence this writ petition. Appellate Court also examined the question of bona fide need thoroughly and recorded independent finding to the effect that need of the landlord Faiyaz Khan to settle his son Sarfaraz Khan in business was quite bona fide (now Sarfaraz Khan is one of the petitioners substituted after the death of original petitioner Faiyaz Khan ). All the Courts at every stage held that Sarfaraz Khan was not doing any regular job and mere fact that he had a tempo did not satisfy his need. If for want of proper accommodation to start business landlord or any of his family members engages himself in temporary and casual jobs, it does not satisfy or substantially mitigate the need (vide Ramkubai v. H. D. Chandak, AIR 1999 SC 3089. In respect of maintainability of release application by one of the co-owners, appellate Court even though discussed the above authority of Gopal Das still it held that the release application was not maintainable. The finding is just contrary to the aforesaid authority of Gopal Das hence it is set-aside.
(3.) APPELLATE Court also agreed with the trial Court that balance of hardship lay in favour of the tenant particularly Dr. Amin as in case of eviction he would be deprived of patients of his father. It was further held that his father had established a goodwill, which was inherited by his son Dr. Amin. In respect of goodwill tenant can be compensated by awarding compensation not exceeding two years rent as provided under second proviso to Section 21 (1) of the Act.;