- (1.) A. K. Yog, J. An application under Section 21 (1) (a) of U. P. Act XIII of 1972 U. P. Urban Buildings (Regulation of Let ting, Rent and Eviction) Act, 1972 (called the Act) was filed for release of a shop No, 9 situate in Sarrafa Bazar, Meerut City by the landlord for taking possession wherein respondent Nos. 3 to 6 were said to be the tenant. Since respondent No. 3 died during the pendency of the release application, the said respondent deceased Dhani Chand was substituted' and represented through respondent Nos. 3/1,3/2,3/3 and 3/4 tenant was paying Rs. 40 per month. The landlord possess another Shop No. 8 adjoining the shop in question. Both the shops measure 12 feet6 inches and 11 feet 6 inches each. There was another adjoin ing accommodation being shop measure 4 feet 7 inches on the road side and 4 feet 9 inches in depth. In the said shop stair of the aforesaid mentioned Shop Nos. 8 and 9 was situated in shop No. 9. The landlord-petitioner claim is that he required the shop in question for establishing his son in money lending business for which licence of Gold Control, under law the tenant who was carrying petty ornaments shop did not require the shop and they could shift other alternative accommodation.
(2.) PARTIES led evidence before the Prescribed Authority who allowed the release application vide judgment/order dated 23-2-1984 (Annexure 4 to the writ petition) holding that the need of the landlord was not genuine and also that tenant was to suffer comparative more hardship if release was allowed. Feeling aggrieved, appeal under Section 22 of the Act before Appellate Authority. During pendency of appeal an affidavit was filed by Sri Ved Prakash as Annexure 5 to the writ petition. In para 3 of the said affidavit it was stated as follows: 3. "that recently markets have been con structed by Sri Dinesh Kumar Gupta, Advocate, in Mohalla Chatta Alia Raza, Meerut City, which is adjacent to Sarrafa Bazar, Meerut City. The shop in this market are lying vacant and an advertisement to this effect has been got in serted by Sri Dinesh Kumar Gupta, Advocate, in Daily Prabhat, Meerut in the issue of 2nd April 1984. A photostat copy of the said adver tisement is annexed herewith as Annexure 1 to this affidavit. " Landlord-petitioner also stated that he was ready to bear all the expenses in making the shop available to the respon dent in the market suggested in the said affidavit by him. A counter-affidavit against the said affidavit of landlord copy of which is annexed as Annexure 6 to the writ petition. After hearing learned counsel for the parties, the Appellate Authority (VII Addl. District Judge, Meerut) respondent No. 1 held that the need of the landlord was genuine and bona fide. The Appellate Authority recorded findings to the effect that I find the need of the applicant for additional accommodation for doing busi ness by his son to be genuine and bona fide.
(3.) WHILE considering the compara tive hardship the Appellate Authority has observed that the applicant being man of status can very easily get alternative accommodation Mien admittedly according to him alternative accommodation available in Sarrafa or in the markets as per affidavit filed by him. The Appellate Authority ob served that on the other hand the opposite parties being men of no means cannot get alternative accommodation in the adjoin ing market. Further the landlord and his son would not have left the shop which was available to him in Abu Lane, Meerut. The Appellate Authority justified the findings on the question of comparative hardship that money lending business was being already carried on from their residence. The Appellate Authority failed to appreciate that the status of landlord was not relevant inasmuch as landlord could not be compelled to carry on business in a particular manner. The Appellate Authority also failed to record findings that shop at, Abu Lane, Meerut (which became available to the landlord in the past) was suitable ? In absence of a findings that shop in Abu Lane was suitable the said consideration could not be validly taken into account against the landlord.;