SURAJ PRASAD SHARMA Vs. IIND ADDITIONAL DISTRICT JUDGE

JUDGEMENT

(1.) THIS writ petition is directed against the order dated 25.11.1976 passed by the Prescribed Authority, Mirzapur rejecting the petitioner landlord's release application under Section 21(1)(a) of U.P. Act No. 13 of 1972 (hereinafter referred to as the Act) and the order dated 21.7.1979 passed by the IInd Additional District Judge, Mirzapur dismissing the appeal preferred by him.

(2.) THE petitioner had applied for release of the shop situate in Mohalla Dhundhi Katra Road near Gurhatti Bazar, Mirzapur City occupied by respondent No. 3 as a tenant. The allegations made in the application were that the petitioner had retired as a principal in 1962 and thereafter, was surviving on a partly pension of Rs. 75/- per month only, that his son aged about 21 years at the time of moving the application was also unemployed, that he, therefore, had a plan that he along with his son would start a crockery or some other business in order to be able to make some income and for that purpose they required the shop in dispute. The application was resisted on the ground that the petitioner himself was too old to start a new business and his need was not bonafide or genuine. As regards the need of the contesting respondent it was stated that he had been running a 'pan', 'tea' and 'Namkin' shop in the accommodation in dispute for the last more than 20 years which was his sole means of livelihood and that he would suffer great hardships in the event of his being evicted. The application was dismissed by the Prescribed Authority by order dated 25.11.1976. The petitioner preferred an appeal which was also dismissed by the Appellate Authority by its order dated 21.7.1979. The petitioner has challenged these two orders in this writ petition. It is significant that the Appellate Authority recorded a categorical finding that the petitioner-landlord and his son wanted the shop in dispute for setting up the proposed business as stated by them and that the need of the bonafide and genuine. The conclusion at which the Prescribed Authority had arrived on that aspect of the case was very peculiar. I am unable to endorse its non-chalant observation that it was too late in the day for the petitioner to embark on a business venture, that since he had failed to start any business for a long time after taking-retirement, there was no point in his intending to start any business now. On the contrary, the Appellate Authority positively held that the petitioner's need was bonafide and genuine, but it fell into a grievous error when making a comparative assessment of the hardship likely to be caused to the parties in the event of either granting or refusing release of the shop in dispute. The Appellate Authority held that there was evidence to the effect that the petitioner's son had served only as apprentice of cinema operator for some time. It also found that he was sometimes engaged in selling lottery tickets. On the basis of these stary odd jobs the Appellate Authority drew the inference that the petitioner's son was not actually unemployed. On the other hand, the Appellate Authority was greatly impressed by the fact that the respondent-tenant had been doing the business of 'Pan, tea and Namkin' in the shop in dispute for a long time and in the event of the release application being allowed he would be thrown on the street' and would be deprived of his means of livelihood. For these reasons the learned Judge upheld the order of the Prescribed Authority and rejected the release application.

(3.) IT is also palpably unfair to hold in the present case that the landlord's son who is having virtually no stable source of employment and has just been picking up such odd jobs now and then as that of selling lottery tickets should be treated as one having employment and not entitled to an opportunity of starting a regular business in the disputed shop. Law cannot be so cynical as to declare. While the tenant must prosecute his business and make profits, it is of no consequence if the landlord's son continues to swell the rank of the unemployed and "the primrose path of dalliance tread". It would not be inappropriate to cite the observations of the Supreme Court made in M/s. Bega Begam and others v. Abdul Ahad Khan and others, 1979(1) Rent Control Reporter 170(SC).