S.D.Agarwala, J. - (1.) THIS is a petition under Article 226 of the Constitution of India arising out of proceedings under section 21 (1) (a) of U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act).
(2.) SMT Kusum Kumari, wife of Ram Govind Misra is the landlady of the premises in dispute. The petitioner, Tribhuwan Nath Mehrotra is the tenant. The property in dispute is a shop in premises No. 87/131, K. P. Kakkar Road (Zero Road), Allahabad. The petitioner is carrying on the optical business therein under the name and style of "Swan and Company". The landlady filed an application for release of the shop on the ground of her personal need and the need of her sons to carry on cloth business in the disputed shop. According to her, she has no other source of livelihood. This application was contested by the petitioner. According to the petitioner-tenant, the respondent no. 3 has many houses and shops. She has other sources of livelihood and the allegation is that this release application has been filed simply to get it released and thereafter, give it on high rent. The Prescribed Authority by an order dated 15th September, 1980 dismissed the application for release. Aggrieved by the judgment dated 15th September, 1980, the landlady filed an appeal under section 22 of the Act. This appeal was allowed by the District Judge, Allahabad on 30th January, 1982. The judgment dated 30th January, 1982 has been impugned in the present writ petition. I have heared Sri K. M. Dayal, Senior Advocate on behalf of the petitioner and Sri A. K. Yog on behalf of respondent no. 3. Learned counsel for the petitioner has urged fistly, that the findings recorded in regard to the bonafide need and on the question of hardship are vitiated in law, as the lower appellate court has reversed the findings on mere assumptions, without there being any basis on the record of the case. The second submission of learned counsel is that after the filing of the present petition in this Court, subsequent events have taken place which have a material bearing on the question whether the petitioner should be evicted from the property or not and consequently, it is a case where the matter should be remanded to the appellate court for giving an opportunity to the petitioner to place the subsequent events for consideration while arriving at the finding of bonafide need as well as in regard to the question of hardship. The last submission of learned counsel is that the application under section 21 (1) (a) of the Act is barred by contract, as the contract had been entered into between the landlady and the petitioner-tenant to the effect that the petitioner shall not be evicted from the premises in suit in perpetuity.
(3.) IN regard to the first submission, I have examined the judgment of the lower appellate court. The lower appellate court has come to the conclusion that in the event the landlady is evicted from the building in which the cinema is being run, the landlady would be deprived of her only source of livelihood. The appellate authority has further found that the rent from the building would be hardly sufficient for maintenance of her family. IN arriving at this finding, no evidence has been considered as to how much is the rent available to the landlady and as to whether that would suffice for livelihood or not. IN my opinion, this finding is not supported by the evidence. Similarly on the question of hardship, the appellate court has found that the tenant petitioner is supplying lenses at Optical House, Sitapur. He has brushed aside the hardship of the tenant petitioner on the ground that the job of preparing lenses and supplying lenses can be carried on at secluded places and no building is required for the said business in a commercial area IN my opinion, this view taken by the appellate court is wholly perverse. Even if the lenses are prepared elsewhere, the petitioner has to carry on the business of supplying the same from some place. Where he can sell his goods. IN any case, the finding, in my opinion, arrived at by the appellate court is wholly cryptic and no reasons have been given as to why the finding recorded by the Prescribed Authority is liable to be set aside. IN the circumstances, in the interest of justice, I think it proper that the question of bonafide need as well as the question of hardship should be considered by the appellate court in the proper perspective. The first submission made by learned counsel for the petitioner, consequently, in my opinion, is well founded. In regard to the second submission made by learned counsel for the petitioner, after the filing of the present petition, one application was made on 9-9-1985 bringing certain subsequent events to the notice of the court. Thereafter, another application was made before I commenced the hearing of the petition on 7th April, 1988. In the application made on 9-9-1985, it has been averred that the landlady has let out the first floor of the building to M/s Sirsa Finance Private Limited. It has further been averred that the lodge, by the name of Allahabad Lodge, has been opened. The license of the said lodge is in the name of Sarad Kumar Misra, one of the sons of the landlady. It has been further averred that the landlady is going to construct a new cinema hall as her tenanted Naaz Cinema was under litigation. In this connection a suit no. 17 of 1977 was filed by the landlady against Someshwar Nath Bhargava for specific performance of the agreement to sell the land which was purchased by the landlady for the purpose of constructing a cinema hall. This suit was decreed by the trial court on 3-1-1983. Against this judgment, I am informed that an appeal has been filed in this Court and it is still pending. This fact has been alleged by the tenant petitioner to show that in fact, after the cessation of the business of Naaz Cinema, the landlady has acquired a land for the purpose of constructing another cinema hall and as such, she will have other source of income for her livelihood.;