Judgment:
Mrs. Shobha Dikshit, J.
1. This writ petition is directed against the judgment and order dated 3.7.1986 passed by 1st Additional District Judge, Kheri contained in Annexure 9 by which the judgment and order dated 3.3.1986 passed by the Prescribed Authority has been set aside and the case has been remanded back to the Prescribed Authority with a direction to redetermine the question of comparative hardship likely to be caused to either of the parties. Aggrieved by the aforesaid judgment, the petitioner-landlady has preferred the instant writ petition and the tenant also preferred Writ Petition No. 5232 of 1986. Writ Petition No. 5232 of 1986 preferred by the tenant has been dismissed in default and the arguments in the present writ petition were heard.
2. The brief facts of the case are that the petitioner Smt. Dropadi Devi filed an application under Section 21 (1) (a) of U. P. Act No. 13 of 1972 for release of the disputed shop in the tenancy of the respondent one Banwari Lal for bona fide need of one of her sons who is unemployed and desirous to set up his business in the said shop. In the said application. It was stated that the petitioner had purchased the premises from the earlier landlady in which the respondent Banwari Lal was also a tenant at the rental of Rs. 67 per month and he used the same as a godown. It was further stated in the application that the husband of the landlady is doing business in another shop as a distributor of cement, kerosene oil etc. for which he possesses a licence. He has three sons, the eldest son is in Government service and the second son Rajesh in the absence of a suitable accommodation or shop is engaged in transporting the goods through a tanker and the third son who is also unemployed and is a graduate is interested in opening a shop for selling medicines. For the aforesaid reasons. It was stated in the application that the need of the landlady for her son is bona fide and genuine and, therefore, the building be released in her favour. It was further stated that the tenant is no more interested in running any business in the disputed premises because he himself has got a big building constructed at Mela Road, where he has four shops and one godown, The said new constructed building is situate right on the road and is very well situated for carrying on his business there. This application was contested by the tenant Banwari Lal inter alia alleging that the alleged need of the shop for establishing the youngest son is not bona fide because the youngest son of the petitioner has taken admission in M.Sc. and is likely to appear in the entrance test for M.B.B.S. and so far as the second son is concerned, he can very well share the premises with his father. The tenant challenged the maintainability of the application for the release of the shop in question on the ground that the shop in question initially belong as to one Sajid Ali and his sister of which he was a tenant. At that time. Banwari Lal with an intention to purchase the premises had paid some money to the said owners Sajid Ali and his sister but when the sale deed did not come through, he had filed a suit for specific performance where present petitioner Smt. Dropadi Devi was also impleaded a party. This suit was dismissed pursuant to a compromise deed dated 15.4.1971, wherein it was provided that the present landlady shall evict the tenant Banwari Lal expect on the ground of non-payment of rent for three months. On the aforesaid grounds, the application for release was contested by the tenant. Learned Prescribed Authority on the pleadings of the parties, considered all the questions as to whether the application for releaseis maintainable or not, need of the landlady is bona fide and genuine and as to the comparative hardship between the parties in the event of release of the shop. On the question of maintainability of the application, the learned Prescribed Authority came to the conclusion that since the aforesaid compromise was prior to the coming into force of the U. P. Act No. 13 of 1972, therefore, it cannot be said that the landlady waived her legal right as available to her order the subsequent Act U. P. Act No. 13 of 1972. The Act will have overriding effect notwithstanding the contract between the parties and relevant clause 3 of the compromise becomes inoperative. On the question of bona fide requirement, the learned Prescribed Authority came to the conclusion that the tenant has failed to prove that the third son of the landlady Sanjeev has taken admission in M.Sc. and has appeared in C.P.M.T. and so also the landlady has categorically denied that the said son is pursuing M.Sc. or is planning to appear for admission in M.B.B.S. course. It was reiterated by the applicant-landlady that her son is unemployed and is very much interested to do business in medicines. On the basis of the aforesaid findings, the learned Prescribed Authority came to the conclusion that the need of the landlady is bona fide and genuine. On the question of alternative accommodation being available with the tenant. Prescribed Authority after considering the material on record, came to the conclusion that the tenant has constructed another building where he can easily shift his business. The plea set up by the tenant that the said building was constructed by his daughter-in-laws was negatived by the learned Prescribed Authority on the ground that the tenant failed to establish that his family is not a joint family and his daughter-in-laws have not permitted him to shift his business in one of the shops constructed therein. In fact the learned Prescribed Authority on the basis of the documents available on the record came to the conclusion that the family of the tenant lives jointly and since the sale deed was in the name of the daughter-in-laws therefore, it cannot be said that they are the exclusive owners of the newly constructed shops where the tenant cannot shift. It has further been held that the tenant in all these years has never tried to find out alternative accommodation. On the question of comparative hardship, learned Prescribed Authority came to the conclusion that in view of the facts that the youngest son is unemployed whereas the tenant has constructed four new shops, therefore, the hardship will be more in favour of the landlady in case the shop is not released in her favour for establishing her youngest son in business. With these findings, the application for release under Section 21 (1) (a) was allowed vide judgment and order dated 3.3.1986 and the tenant was directed to vacate the premises within 30 days.
3. Aggrieved by the same, the tenant Banwari Lal preferred an appeal under Section 22 of the aforesaid Act. The appellate authority considered the matter and affirmed the findings that the application under Section 21 was maintainable and need of the landlady is genuine and bona fide, but it held that the Prescribed Authority did not determine as to why the youngest son cannot be accommodated in the shop either along with the father in the shop occupied by the deceased's brother Satya Narain when Satya Narain was earlier accommodated with him. On the question of comparative hardship also, the appellate authority held that the matter requires further consideration and in these circumstances, vide judgment and order dated 3.7.1986, the appellate authority remanded the matter to the Prescribed Authority for reconsideration.
4. The aforesaid findings on issue Nos. 1 and 2, i.e., the bona fide requirement and the maintainability of the application both were affirmed. In short, the matter was remanded only for the purpose of re-determination on the question of comparative hardship.
5. I have heard the learned counsel for the petitioner and have perused the judgments of the courts below.
6. Learned counsel for the petitioner assailing the Judgment of the appellate court submitted that when the findings as to bona fide requirement as also the maintainability of the application both were affirmed by the appellatecourt, it committed manifest error by remanding the case on the question of comparative hardship alone for the reason that the comparative hardship was duly considered by the Prescribed Authority and it required no further consideration. While referring to the Judgment of the Prescribed Authority, he submitted that on the question of comparative hardship, the learned Prescribed Authority has referred to various decisions on the scope of Rule 16 dealing with the requirement of comparative hardship. It has also discussed that so far as the tenant is concerned, he did not plead at any stage that he ever attempted to find out an alternative accommodation but he could not get the same. The tenant also failed to establish that his family is not a joint family and the shops which were constructed on the land in the name of the daughter-in-laws are exclusively owned by the said daughter-in-laws and the tenant had no relation or connection with the same whatsoever. He has also failed to establish that his request to his daughter-in-laws to rent out a shop to him was not acceded to by them. The location of the shop was alleged to be suitable being situated right on the road side and it was not controverted that the same is not suitable. The tenant had also failed to establish that the youngest son of the landlady is pursuing higher education and has appeared in the examination for admission to M.B.B.S. course. In these circumstances, nothing further was needed to be established for the purpose of determining comparative hardship between the parties.
7. I have considered the arguments addressed by the learned counsel for the petitioner and have perused the findings recorded by the trial court and 1 am of the view that the appellate court has remanded the case erroneously because in the facts and circumstances of the case and categorical finding recorded by the Prescribed Authority, there was no further necessity for reconsideration on the question of comparative hardship. Once the need of the landlady for establishing her youngest son to establish in business stood established and affirmed by the appellate court as also the fact that the family of the tenant has constructed four shops, and a godown, it was no more needed to further enquire into the question of comparative hardship. The remand order passed by the appellate authority, therefore, suffers from serious legal infirmity and is, therefore, liable to be set aside.
8. I, therefore, set aside the judgment and order of the appellate court to the extent that the matter has been remanded for reconsideration on the question of comparative hardship as also the possibility of accommodating the youngest son by the husband of the petitioner in the shop where the deceased Satya Narain was accommodated. Both these issues have rightly been determined by the Prescribed Authority and, therefore, the observations and the findings recorded by the appellate court are manifestly erroneous to this extent.
9. The writ petition is allowed. The Judgment of the learned PrescribedAuthority is hereby affirmed and the application for release is allowed which wasfiled in the year 1986. Long time has passed, therefore, the respondents who arelegal heirs of the earlier tenant Banwari Lal are directed to forthwith vacate thepremises and handover its vacant possession to the landlady-petitioner. Noorder as to costs.