R.P.SINGH, J. - (1.) THIS writ petition under Article 226 of the Constitution is directed against an order passed by the IInd Addl. District Judge, Moradabad, dated 9.10.87, allowing the appeal setting aside the order passed by the Prescribed Authority and thereby allowing the application of the landlord No. 2 for the release of the accommodation in proceedings under Section 21(1)(a) of U.P. Act No. XIII of 1972.
(2.) THE facts of the case briefly stated are that respondent No. 2 is the landlord of the shop in dispute situate in Chandausi town of which the petitioner is the tenant. The application for release of the shop in dispute was moved by Smt. Santosh Goel, wife of respondent No. 2 as his guardian alleging that respondent No. 2 is a person of unsound mind and need for the shop in dispute is bonafide and genuine for setting up his unemployed son Navin Kumar in business who has passed his B.Com. in the year 1982 and since then is unemployed and that the petitioner has shifted his business to Lucknow where he is having many shops and further that Navin Kumar son of respondent No. 2 wants to start the business of general merchant in the shop in dispute and he being unemployed the need of the landlord for the disputed shop is bonafide and genuine and further that greater hardship would be caused if the same is not released in favour of the landlord. The application was contested by the petitioner on the ground that the need of the landlord for the shop in dispute is not bonafide and genuine and further that respondent No. 2 is not a person of unsound mind and, therefore, his wife Smt. Santosh Goel has no right to move the application for release of the shop and on this ground alone the application for release of the shop is liable to be dismissed. It was further alleged that the petitioner has not shifted his business to Lucknow but is looking after business at Chandausi and on the ground of comparative hardship also his case was that he would suffer greater hardship in case the shop is released. The Prescribed Authority on consideration of the evidence held that the respondent No. 2, Mahendra Kumar was not a person of unsound mind and hence the application moved by his wife Smt. Santosh Goel is not maintainable and it is only the landlord who is entitled to move the application for release of the shop under Section 21(1)(a) of the Act, hereinafter referred to as the Act. The Prescribed Authority further held that the need of respondent No. 2 for the shop in dispute is not bonafide and genuine and comparative hardship also tilts in favour of the tenant, i.e., the petitioner in the case and hence dismissed the application vide his order dated 28.3.85. Feeling aggrieved the respondent No. 2 went up in appeal before the IInd Additional District Judge, Moradabad who on perusal of the evidence on record and applying his mind to the same held that Mahendra Kumar, respondent No. 2 is a person of unsound mind and hence the application for release moved by the wife Smt. Santosh Goel is maintainable and competent and further on the question of bonafide need, held that the need of the landlord-respondent No. 2 for the shop in dispute for setting up his unemployed son in business is bonafide and genuine and on the question of comparative hardship also, in view of the fact that the petitioner has mainly shifted his business to Lucknow where he is having a flourishing business, the hardship tilts more in favour of the landlord-respondent No. 2 and greater hardship would be caused in case the shop is not released in his favour and on these findings, allowed the appeal vide his order dated 9.10.87 which is in challenge in the present writ petition filed before this Court.
(3.) HEARD Shri S.N. Verma, Senior Counsel for the petitioner and Shri K.M. Dayal, Senior counsel for respondent No. 2.;