Bishambhar Nath vs VI Addl. District Judge,Bareilly and Another

Sudhir Narain, J.—This writ petition is directed against the order of the appellate authority dated 17111992 whereby the appeal was allowed and the release application filed by the landlordpetitioner was rejected.

The landlordpetitioner filed an application for release of the disputed shop with the allegations that his sons Rajendra Kumar and Surendra Kumar will carry on business of general merchandise in the disputed shop. They have no other shop to carry on business. The application was contested by the tenantrespondent. The Prescribed Authority, on consideration of material evidence on record, came to the conclusion that the need of the petitioner to settle his sons was bona fide and allowed the application by his order dated 981991. The tenantrespondent preferred an appeal against the said order. The appellate authority found that the need of the landlord was bona fide and genuine but he took the view that the respondent was a ''Hakim'' and carrying on medical practice for the last 40 years and if he is evicted, he would suffer a greater hardship. The appeal was allowed and the application was rejected by the impugned order dated 17111992. This order has been challenged in the present writ petition.

2.1 have heard S/Sri Pankaj Naqvi and Rajesh Tandon, learned Counsel for the petitioner and Sri Ravi Kiran Jain, learned Senior Counsel for the contesting respondent.

In Mst. Bega Begum v. Abdul Ahad Khan, (1979) 1 SCC 273, it was held that every tenant will suffer a hardship in the event he is evicted but the application of the landlord cannot be rejected on the ground that the tenant has no alternative accommodation. It was observed

"..........being the owners of the house they cannot be denied eviction and be compelled to live below the poverty line merely to enable the respondents to carry on their flourishing hotel business, at the cost of the appellants."

The contention of the petitioner was that he had two sons and he .has to establish them in business. On the other hand, the tenant has two sons, one is alleged to have passed medical examination and another son is running a hotel in a shop nearby. The version of the petitioner is that the son of respondent No. 2 has a big hotel business quite close to the shop in dispute under the name and style of "Nishat Hotel". It consists of 60 rooms besides kitchen, dormitory and dining hall. It is a double storied building. The respondent could have accommodated himself in one of the rooms of the said house.

During the pendency of the writ petition respondent No. 2 has also expired. The appellate authority has to consider every aspect of the matter while considering the hardship of both the parties.

In view of the above, the writ petition is allowed. The order dated 17111992 is quashed and the appellate authority is directed to decide the appeal afresh keeping in view the observations made above and in accordance with law within a period of two months from the date of production of a certified copy of this order. Petition allowed.