PRAKASH KRISHNA, J. - (1.) HEARD learned Counsel for the parties.
(2.) BRIEF facts relevant for disposal of the present writ petition are as fol­lows :- (i) Gulab Chand was the landlord of shop No. 91/1 Mohalla-Sarai Pura, District-Jhansi and had three sons namely Ashok Kumar, Arun Kumar and Dr. Rakesh Kumar, Gulab Chand the landlord was carrying on a medical store in another shop in the name and style of Shah Medical Agencies. He applies for release of the shop No. 91/1 situate at Mohalla- Sarai Pura, District-Jhansi under section 21 (1) (a) of U.P. Urban Building (Regulation of Letting Rent and Eviction) Act, 1978 (hereinafter referred to as the 'said Act') of which Sri Mangan Lal (since deceased), respondent No. 3 was the tenant on a monthly rent of Rs. 90/- per month, for the need of his son Ashok Kumar to establish him in a wholesale medicine business, with the allegations that Ashok Kumar has obtained drug licence for wholesale dealing in medicines and is presently carrying on the said business from the house. The said application was contested by the tenant/respondent No. 3 on the pleas inter alia that he is carrying on business of hair cut i.e., run­ning barber shop in the disputed shop and the shop in question is the only source of income of his family. The said business is being run with the help of two servants. It was further pleaded that Ashok Kumar can carry on the wholesale medicine business from the shop where from the landlord is car­rying on the business of medicine in retail i.e., at the business premises of Shah Medical Agencies. (ii) Parties led evidence in support of their respective cases. The pre­scribed authority by its judgment and order dated 30th October, 1986 found that the landlord does not posses any other shop except, the disputed one and that Ashok Kumar is carrying in the business from his residence which is not suitable. To establish Ashok Kumar in a separate business is a bona fide need of the landlord. On the question of comparative hardship it was found that the tenant has not taken any steps to obtain an alternative shop during pendency of the release proceedings therefore, the finding of com­parative hardship was recorded against him. It was held that Ashok Kumar has obtained licence of wholesale medicine business in the name and style of M/s. Jain Medical Agencies which has been renewed, and the need of the disputed shop is bona fide and genuine. It is further found that if the disputed shop is not released, the licence granted to Ashok Kumar to run medical business, will be terminated. A sum of Rs. 2,170/-, as damages which is equivalent to two years rent, as provided under the said Act was awarded. The said order was carried in appeal being Rent Control Appeal No. 11 of 1985 by the tenant Mangan Lal Sen. The said appeal has been al­lowed by the impugned judgment and order dated 22nd February, 1988 by the learned District Judge, Lalitpur. Challenging the said order the pre­sent writ petition has been filed. The learned District Judge has found that the respondent-landlord pos­sesses a house in Katra Bazar wherein the wholesale business in medicines it­self has been started by Ashok Kumar from the said house. There being no co­gent evidence on record to show that this house of the landlord is not in the market or is away from the market and the fact that it is situate in Katra Bazar, the said house is not unsuitable for the wholesale business in medicines. The Appellate Court thereafter proceeded to examine the question of compara­tive hardship. It found that landlord is carrying of a business of selling medicine in the name and style of Shah Medical Agencies from his another shop situate in the market in which the shop in question is situate would not suffer greater hardship in case the release application is rejected as he has some rental income also. On the other hand there is no cogent evidence on record to show that the tenant has any alternative accommodation for running his business of barber. Except the said business the tenant has no other source of livelihood.
(3.) IT may also be noticed that this writ petition has been pending in this Court for last more then two decades. During this period the landlord and the tenant both have passed away. The learned Counsel for the respondent-tenant submits that the said subsequent events may be taken note of and the shop in which the petitioner was carrying on the medicine business in retail in the name of Shah Medical can now be occupied by Ashok Kumar, if his need still exists. The learned Counsel for the landlord on the other hand submits that af­ter the death of the tenant, the sons of the tenant are not carrying on any busi­ness there from and have sub-letted it to another person. Along with supple­mentary rejoinder affidavit, a copy of registration under the Shop and Commercial Establishment Act in respect of another shop situate at Kaila Road, Lalitpur has been filed to show that Mukesh Kumar Sen son of the tenant is running a tractor repairing workshop therein. In addition to above, certain other documents have also been filed, amongst them, a list of the shops which are lying vacant for allotment at Dr. Shadilal Commercial Complex, Lalitpur as also an advertisement issued by the Nagar Palika Parishad, Lalitpur invit­ing applications for the allotment and sale of the said shops published in Amar Ujala, daily newspaper dated 3rd March, 2009.;