SHAHID KHAN Vs. RADHEY SHYAM CHAURASIYA

JUDGEMENT

(1.) This writ petition under Article 226 of the Constitution of India filed by the petitioner-tenant challenges the order passed by the prescribed authority and affirmed by the appellate authority under the provisions of U.P. Act No. 13 of 1972.

(2.) The brief facts of the case are that admittedly the petitioner is the tenant of the shop in question and the respondent is the landlord. The respondent-landlord, who has retired from Government service, filed an application under Section 21 (1) (a) of the U.P. Act No. 13 of 1972, herein-after referred to as the 'Act' for release of the shop in question on the ground that he is a retired employee and only source of income is of his pension, his son who is 25 years of age and is doing nothing, therefore, he filed the present application under Section 21 (1) (a) of the Act in order to facilitate the landlord to settle his son, who will open a general merchant shop in the shop in dispute. The petitioner-tenant contested the aforesaid application filed by the landlord only on the ground that the landlord is a Central Government retired employee and he gets handsome amount from his pension. As far as his son is concerned, it is stated that he is carrying on tuition and teaching the students at his residences and he is very well established in said teaching, therefore, he does not require the shop in dispute or to open a new shop. The prescribed authority on the basis of the pleadings and evidence of the parties have arrived at the conclusion that the need of the landlord is bona fide in view of the law laid down by this Court that the need settling his un-employed son is valid and bona fide need of the landlord. Apart from that the prescribed authority has also found that since the landlord is a retired person, his assertion in the application under Section 21 (1) (a) of the Act that his son will start his business after the same is released and he will be assisted in the said business by landlord himself. Thus, the prescribed authority found the need of the landlord to be bona fide. On comparison of the hardship, the prescribed authority found that since there is no evidence on record that the son of the landlord is engaged in tuition and that the alternative accommodation suggested by the tenant where the landlords son can start his business is purely residential accommodation and is not suitable for commercial establishment. Thus, the prescribed authority relying upon the law laid down by this Court held that on comparison of the hardship of the landlord as well as the tenant, the tilt of comparative hardship is in favour of the landlord as it was found that in case the accommodation is not released in favour of the landlord, the landlord's son will not be established in life. With the aforesaid finding, the prescribed authority directed the release of the accommodation in favour of the landlord vide his order dated 24th April, 2000, copy whereof is annexed as Annexure-'3' to the writ petition.

(3.) Aggrieved thereby, the petitioner-tenant preferred an appeal before the appellate authority under Section 22 of the Act. The Appellate Authority after considering the evidence on record and the materials have affirmed the findings arrived at by the prescribed authority with regard to bona fide need and also with regard to the comparative hardship. The appellate authority also considered the question of release of the part of the accommodation and arrived at the conclusion that since the length of the shop in question is only 13' and in the business of general merchant which the landlord wants to start for his son, it cannot be inferred that part of the accommodation can be released in favour of the landlord and the part remains with the petitioner-tenant. In this view of the matter, the appellate authority considered all the arguments advanced on behalf of the tenant in the appeal and affirmed the findings arrived at by the prescribed authority and dismissed the appeal filed by the petitioner-tenant vide his order dated 13th January, 2004, copy whereof is annexed as Annexure-'4' to the writ petition, thus, this writ petition.