RAJESHWARI PRASAD Vs. FATEH BAHADUR CHATURVEDI

JUDGEMENT

(1.) THAT survives for consideration, in this landlord's petition, is if the appellate authority committed any error in dismissing the release application under Section 21 of U. P. Act XIII of 1972 even after finding that need of petitioner was genuine and bonafide because on comperative hardship the Prescribed Authority, has only observed that the tenant could go wherever he liked but that since the need of the landlord was genuine the accommodation should be made available to him.

(2.) THAT in taking such extreme view the Prescribed Authority committed an error of law can hardly admit of any doubt. It would be rendering the other important consideration for allowing the application of landlord nugatory. Bonafide need is the foundation of the application for eviction of the tenant. Without it the application cannot be allowed. But even after the landlord succeeds in establishing it the Prescribed Authority's power to direct eviction of tenant is curtailed by proviso four to the Section which makes it mandatory for him to take into account the likely hardship of the two while allowing or rejecting the application. Hardship is relative word. In our society with divergence of economic prosperity no single test can be laid down for it. Need and necessity of a person in affluent circumstance or with better social status is bound to be different than a person who is not so fortunate. In some cases drawing room, guest room, consultation room may be necessity, in others a pretext only. Comparison of hardship therefore implies an objective consideration of circumstances. What may be valid and relevant consideration in one city or mohalla in relation to one landlord and his tenant may not be relevant for other. The Prescribed Authority therefore was certainly in error in treating hardship and need as one and the same.

(3.) BOTH petitioner, that is the landlord, and opposite party are practising lawyers. It therefore resulted in long arguments, lot of case law and numerous supplementary affidavits. Learned counsel for landlord urged that financially opposite party was in a position to rent another house therefore he cannot complain of hardship-Sanwal Das Banka v. III Additional District Judge Faizabad, 1982 Allahabad Rent Cases, page 24. He also urged that landlord being owner if asked to live in inconvenience it is prima facie hardship- Mohammad Sajid v. IInd Additional District Judge, 1982 Allahabad Rent Cases page 104. According to the learned counsel non-occupation of additional accommodation released in favour of landlord was irrrelevant. Counsel for opposite party on the other hand relied on the principle of greatest good of greatest number 1975 Allahabad Civil Journal 298 (SC). It is however unnecessary to examine any of these as it has been seen above that although appellate authority did not commit any error in setting aside finding of Prescribed Authority on comperative hardship but it itself fell into similar error. And comparative hardship is an aspect which can properly be decided by fact finding authority only. Learned counsel for opposite party realising the difficulty of defending the order, as it was fell back on supplementary affidavits disclosing subsequent events and urged that they should not only be taken into consideration but they are sufficient to support the finding that if the application of petitioner was allowed then opposite party should be put to immense hardship consequently this court instead of directing appellate authority to decide the appeal afresh should dismiss the petition. In one supplementary counter affidavit it is averred that in counter affidavit it was stated that shop no. 524 Radha Krishna Bhawan was vacant and the petitioner after getting it renovated was negotiating for its letting out. This fact is established as in November, '81, the petitioner did let out this shop in which Gupta Shoe Store has been opened. According to opposite party this could have been utilised for consultation chamber of the petitioner the prime necessity for which he has moved the application for release. In the another supplementary counter affidavit it is stated that petitioner's wife died in August 1982 thereby reducing petitioner's family to three adult and one minor only. Further petitioner being aged 87 years the accommodation in dispute was unsuitable for him. In yet another supplementary affidavit it is averred that one of opposite party's married daughter has died whose two sons aged about four and six have come to live with him thereby further increasing his family to 12. Further another tenanted accommodation of one Sri G. P. Shukla in the same building has been got vacated by petitioner. In reply it has been stated by petitioner that shop no. 524 was never vacant nor it has been let out to Gupta Boot House. Death of petitioner's wife has been admitted but it is asserted that she died because due to paucity of accommodation she had to live in varandah. Allegation that opposite patty daughters, sons are residing with him are denied. Compromise with Sri Shukla is admitted but it is averred that he is in occupation of upper portion. Four rooms vacated in lower portion are stated to be unfit for living or professional use due to leakage of water and dampness.