- (1.) SANJAY Misra, J. These are two connected writ petitions arising out of the same proceedings under Section 21 (1) (a) of Uttar Pradesh Urban Build ings (Regulation of Letting, Rent and Eviction) Act, 1972 hereinafter referred to as U. P. Act No. 13 of 1972.
(2.) IN writ petition No. 16326 of 1989 the petitioner who is a tenant of the shop in dispute has challenged the judgment and order dated 16-12-1982 passed by the prescribed authority, Kanpur Nagar whereby the release ap plication of the respondent landlord has been allowed as also the judgment and order dated 29-4-1989 whereby the ap pellate Court has partly allowed the ap peal of the petitioner by holding that the petitioner will be entitled to get posses sion of an alternative shop in the same premises being shop No. 8. The writ petition No. 21890 of 1992 has been filed against the judg ment and order dated 4-5-1992 passed by the appellate Court whereby the ap plication made by the landlord has been allowed and the judgment and order dated 29-4-1989 passed in the appeal earlier has been modified to the extent that shop No. 8 cannot be provided as an alternative accommoda tion to the tenant. The facts of the case are that the petitioner is a tenant of a shop situate on the ground floor of premises No. 109/1 Nehru Nagar, Kanpur Nagar. The landlord namely Gyan Singh filed an ap plication for release of the shop in ques tion on 30-4-1974 which was registered as rent case No. 480 of 1974. The ap plication was contested by the petitioner. However, the prescribed authority came to the conclusion that the need of the respondent landlord was bona fide and the shop in question was required for the son of Gyan Singh namely Dr. YR Singh who had obtained the degree of MBBS in 1968 and was employed in the Air Force but was retired from the Air Force in 1974 and as such requires the shop in question for establishing his private practice. The shop No. 1 and shop No. 8 in the premises in question were in the oc cupation of the other two sons of the landlord who were doing their inde pendent business in the said shops. The trial Court found that since the said shop No. 1 and shop No. 8 were in oc cupation of the other two sons of the landlord hence they were neither vacant nor they were suitable for Dr. YR Singh for running his clinic. The trial Court found that the petitioner had not made any effort to search out an alter native accommodation nor any evidence was produced by the petitioner to such effect. The petitioner was in possession of another house No. 109/417 wherein the first and second floor were vacant. It also found that the petitioner has a second house No. 111/460 in Brahma Nagar, Kanpur Nagar where the petitioner is living with his family on first floor and recorded that he could start his business in his own house which was very near to the shop in dispute. The trial Court considered the plea of the petitioner of being given shop No. 8 in the premises itself in ex change for the shop in question but refused the said plea. It found that the bona fide need of the landlord was genuine and comparative hardship would be more to the landlord than to the tenant. In appeal the appellate Court confirmed the finding of bona fide need set up by the landlord for estab lishing the clinic of his son Dr. Y. P. Singh. It took into consideration the provision of Rule 16 (2) (a) of the Rules, 1972 framed under the Act and found that since the petitioner was doing the busi ness in the shop in question for a long period, therefore, there was less jus tification for allowing the application for release. It held that the petitioner had earned considerable goodwill in the area and due to shortage of accom modation it was not possible for him to search for another shop. On the aforesaid reasons the appellate Court held that the landlord should provide shop No. 8 as an alternative accom modation to the petitioner. It, therefore, released the shop in question but directed that the landlord shall provide shop No. 8 to the petitioner.
(3.) LEARNED Counsel for the petitioner has argued that the said find ing of the appellate Court for providing shop No. 8 as an alternative accom modation was neither offered by the londlord nor the petitioner has given his consent for accepting the same. As such he contends that the order of the appellate Court is liable to be set aside. He also contended that shop No. 1 and shop No. 8 situate within the same premises are available with the landlord and the Courts below have illegally held that the said shops are not available. LEARNED Counsel for the petitioner states that the comparative hardship was more to the petitioner than to the landlord and therefore, the finding on comparative hardship recorded by the Courts below is liable to be set aside. A counter-affidavit has been filed on behalf of respondent No. 4 Dr. Y. P. Singh. It has been stated by learned Counsel for the respondents that the order of the appellate Court directing the landlord to provide shop No. 8 in the same premises to the petitioner as an alternative accommodation is illegal in as much as the said shop was not vacant but was being used by Sri N. P. Singh (respondent No. 6) who is brother of respondent No. 4. It has been contended that shop No. 1 is in occupa tion of another brother namely Y. P. Singh (respondent No. 5) who is carrying on his business in the name of M/s. Creative Engineering Enterprises. It is stated that apart from the fact that both the aforesaid shops were not available for Dr. Y. P. Singh, the prescribed authority has, on the basis of evidence available on record, found that the said shops were not suitable for opening a clinic by Dr. Y. P. Singh. He, therefore, contends that the finding recorded by the Courts below on bona fide need berg concurrent need no interference by this Court. Learned Counsel for the respondent has submitted that the petitioner owns two other houses near by and has got sufficient accommoda tion in the said houses to do his busi ness. It has been stated that in one of the houses which is opposite the premises in question the petitioner is doing the business of dry cleaning and Photostat. He states that the petitioner has got his own accommodation in the said two houses being house No. 109/417-B and house No. 111/460. He submits that the petitioner is not doing business of manufacturing Chappal and the shop in question is mostly closed. The intention of the petitioner, according to learned Counsel for the respondents, is that he was anticipating to get some premium for vacating the shop in question. Learned Counsel for the respondent contends that in view of aforesaid fact even on the question of comparative hardship Dr. Y. P. Singh was to suffer more hardship if the shop was not released, whereas the petitioner who has got his own two houses nearby and has enough space in the said houses to run his business could not be said to suffer more hardship in case shop is released. He contends that the petitioner has got his business in' the other house and therefore, the shop in question is not the only source of his livelihood.;