MOHAMMAD FAROOQ Vs. ADDITIONAL DISTRICT JUDGE, BAREILLY

JUDGEMENT

(1.) LIST revised. No one appears for the tenant -respondents. Heard learned Counsel for the petitioner.

(2.) THIS is landlord's writ petition arising out of eviction/release proceedings initiated by him against tenant -respondent No. 3 Syed Mustafa Ali on the ground of bonafide need under Section 21 of U.P. Act No. 13 of 1972 in the form cif P.A. Case No. 24 of 1991. Property in dispute is a shop which was initially in the form of a bethak. Prescribed authority/VIIth A.D.J., Bareilly held that both petitioner as well as his brother had one room each in their occupation. Prescribed authority found that family of the petitioner consisted of nine persons. Question of bonafide need was decided in favour of the landlord. However, on the ground of comparative hardship matter was decided against the landlord. The point which heavily weighed with the prescribed authority has that tenant was having a goodwill and he would suffer huge loss in case he shifted his business to somewhere else. It was repeatedly observed by prescribed authority that landlord did not point out any alternative accommodation to which tenant could shift his business. This was to be pointed out by the tenant and not by the landlord. Supreme Court in B.C. Bhutada v. G.R. Mundada, AIR 2003 SC 2713 has held that after filing of the release application tenant should make all efforts to purchase or take on rent another accommodation and if he does not do so, the balance of hardship tilts against him. Tenant did not bring on record anything to show that he made any effort to search alternative accommodation. The tenant asserted and Prescribed Authority found as proved that tenant was doing business on a big scale from the shop in dispute and he had acquired excellent good -will. Appellate Court held that tenant had monopoly in the business, which he was carrying on from the shop in dispute in the area where shop in dispute is, situated. If it is so then tenant must have been in a position to purchase another shop.

(3.) APPELLATE Court approved the view of the Prescribed Authority on both the grounds. Appellate Court held the need of the landlord to be bonafide but decided the matter in favour of the tenant only on the ground of comparative hardship. Appellate Court also found that the adjoining shop had been vacated by Hem Raj however, that shop was in the share of petitioner's brother who himself was having big family.