Anshuman Singh, J. - (1.) THIS is a tenant's petition arising out of the proceedings under section 21 (1) (a) of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act). Before the writ petition was admitted Mr. S. N. Agarwal filed his appearance on behalf of respondent no. 2 who was granted time for filing a counter affidavit. Since counter and rejoinder affidavits have been exchanged between the parties, it was thought desirable that the writ petition should be disposed of finally at the admission stage as provided in the second proviso to rule 2 of Chapter XXII of the Rules of Court. Therefore with the consent of the parties this is being disposed of finally.
(2.) THE petitioner is tenant of the accommodation consisting of two rooms and a court-yard. THE aforesaid accommodation is a part of the building owned by respondent no. 2. Out of two rooms occupied by the petitioner one is used as a shop and the other for residential purposes. THE accommodation in question is separated by a wall and has its separate identity. The respondent landlord moved an application under section 21 (1) (a) of the Act for release of the accommodation under the tenancy of the petitioner on the ground that he knows weaving and has applied for loan of Rs. 25,000/-from the U. P. Financial Corporation and with the help of the aforesaid loan he would install Automatic Cloth Manufacturing and Yarn Weaving Machine. He further alleged that the wall between the accommodation under the tenancy of the tenant and that in his possession will be removed as the accommodation in possession of the landlord was not sufficient for the said business which he wanted to establish. The petitioner admitted the respondent to be the landlord of the accommodation in question but resisted his claim of bonafide need. The petitioner alleged that he is doing carpentary and makes moulders for preparing bricks. He has no alternative accommodation in which he can shift his business and in case he is evicted from the accommodation in dispute he will suffer an irreparable loss. The petitioner in support of his case filed his own affidavit and the affidavits of Ram Chandra, Hazi Ashiq Ali and Mohammad Ali. On the contrary respondent no. 2 apart from his own affidavit filed the affidavits of Shiv Kumar Sharma, Zahir Ahmad, Hasan Ali and Mohammad Saeed and certain documents to establish his need. The Prescribed Authority by order dated 15-9-1982 rejected the release application. The respondent landlord feeling aggrieved against the said order preferred an appeal under section 22 of the Act before the District Judge which was transferred to the court of Vth Additional District Judge, Bulandshahr, who allowed the appeal by order dated 27-5-1987 and consequently ordered for eviction of the petitioner from the accommodation under his tenancy. It is relevant to state that before the Prescribed Authority no evidence was adduced by the landlord to show that the loan of Rs. 25,000/- has been sanctioned in his favour. During the pendency of the appeal the respondent-landlord got the memo of appeal amended by adding para 4-A to the effect that the loan has been made available to him and as such his need has become more acute. Apart from the said amendment the respondent filed as many as seventeen papers as additional evidence and also filed supplementary affidavit. Inspite of objection raised by the petitioner the additional evidence was admitted.
(3.) I have heard Sri B. D. Mandhyan, learned counsel for the petitioner, and Sri S. N. Agarwal, learned counsel for the respondent. Learned counsel for the petitioner firstly submitted that since the respondent landlord has sought release of the accommodation in question for installing a machine, the appellate court should have strictly construed rule 16 of the rules framed under the Act inasmuch as the Prescribed Authority has recorded a categorical finding that the accommodation which was available with the landlord was sufficient for running his business. Learned counsel for the petitioner invited my attention to the finding recorded by the appellate court that "it is the well settled law when both the landlord and the tenant are in need of the accommodation the need of the landlord shall be preferred," and contended that once the appellate court came to the conclusion that the needs of the landlord and that of the tenant petitioner were genuine there was no reason to give preference to the landlord instead of not ordering the eviction of the tenant. Mr. S. N. Agarwal, learned counsel for the respondent, submitted that it is well settled that where needs of the landlord and tenant are equally balanced preference has to be given to the landlord on the basis of the authorities of this Court. As far as the needs of the landlord and tenant as well as the hardship likely to be caused to the landlord and tenant are concerned they can neither be measured nor weighed and as such to term the comparative hardship or the need of the landlord and tenant equal in my opinion is not in conformity with rule 16 and the hardship, which is likely to be caused to the landlord and tenant, is bound to vary according to the facts of each case. Assuming, even if the authorities under the Act comes to the conclusion that same type of hardship is likely to be caused to both sides the hardship is bound to vary in degrees and until and unless there is some additional circumstance in favour of the landlord, the authorities should not lean towards the landlord though the hardship likely to be caused to the tenant is the same or equal as termed in some cases. Counsel for the petitioner placed reliance on a decision of the Supreme Court in Bishan Chand v. The Vth Additional District Judge, Bulandshahr, AIR 1982 SC 1230. In that case in the ejectment suit by the landlord the Vth Additional District Judge, Bulandshahr who disposed of the appeal has recorded a finding that hardship to both the landlord and the tenant would be the same. The Supreme Court held that "if that be the finding, in the absence of any additional circumstance indicating that preference could be shown to the landlord the ejectment order in his favour could not be made.'' In this view of the matter I am of definite view that the authorities under the Act cannot give preference to a landlord in comparison to a tenant where the hardship is likely to be caused is the same until and unless a further finding is recorded by the authorities that because of certain circumstances, which should be born out from the record, the landlord is entitled to preference. In absence of such a finding preference to the landlord should not be automatic. I am strengthened in my view by a decision of this Court in Raghav Ram Gupta v. Ilnd Additional District Judge, Varanasi, 1983 Allahabad Rent Cases 623, wherein it has been held :- "Consequently, even after finding bona fide need for landlord the comparative hardship has to be analysed and even if the necessity of both is found at par it would not result in application being allowed. Additional circumstances must justify release." In the instant case neither any finding has been recorded nor any additional circumstance has been indicated in the judgment of the appellate court as to why the landlord respondent is entitled to preference.;