K.C Agarwal, J.:— Dr. Krishna Chand respondent no. 2 who was the owner and landlord of the disputed shop filed an application under section 21(1)(a) of U.P Act no. XIII of 1972 for release on the ground of personal requirement. The respondent no. 2 claimed that he had completed the medical course and that was under the training. He intended to start his private practice in the said shop after making some alterations. Hence the shop be released for his occupation. The petitioner filed an objection claiming that the need of the landlord was not genuine and bana fide and that the application had been filed to harass him. The petitioner alleged that respondent no. 2 was unmarried and was living with his father who owned a number of properties. According to petitioner, the respondent could do practice in one of the three shops of his father which were lying vacant at the time when the application for release was filed under section 21(1)(a) of the U.P Act no. XIII of 1972. The petitioner further alleged that he was running a small hotel in the shop in dispute and that he would be deprived of the source of the livelihood which he was earning for himself and his family which consisted of 11 members. The prescribed Authority framed the following two issues;
(1) Whether the need of the respondent was bona fide and genuine?
(2) Whether his need was greater than that of the tenant?
2. After examining the material on record, the Prescribed Authority found that the respondent was an unmarried son of Dr. Rameshwar Prasad and that there were shops towards the west of the shop in dispute belonging to the father of respondent no. 2, out of which one could be occupied by the said respondent for his business. The Prescribed Authority also found that respondent no. 2 belonged to a rich family that he could afford to make arrangements for an alternative shop. On these findings, the Prescribed Authority found that the landlord's need was not bona fide. The Prescribed Authority also considered the comparative hardship. He rejected the landlord's case that since the petitioner was carrying on a small business at a small scale in the shop he could shift it to some other place.
3. In the opinion of the Prescribed Authority, the landlord could not point out any alternative shop where the business could be shifted. Since, in the opinion, of the Prescribed Authority, the shop in dispute was the only source of livelihood of the petitioner he held that the petitioner would suffer greater hardship if the application was allowed.
4. Against the aforesaid judgment, the respondent no. 2 filed an appeal before the District Judge. The appeal was heard and allowed by the IInd Additional District Judge on October 20, 1978. Against the aforesaid judgment, the present writ petition was filed.
5. The first question that is required to be considered is about the bona fide requirement of the premises by the landlord. The case of the respondent landlord was that he intended to set up himself in his private practice. The requirement of the petitioner to start medical practice may not be disputed. The question, however, is as to whether the requirement of the present shop was bona fide.
6. Clause (a) of sub-section (1) of section 21 provides that the Prescribed Authority may, on an application of the landlord order the eviction of the tenant from the building under his tenancy if it is satisfied that the building is bona fide required for occupation by himself. The requirement of the landlord had to be established for getting an order made under clause (a) of sub-section (1) of section 21. Mere assertion on the part of the landlord that he required the accommodation in the occupation of the petitioner for the purpose of starting his own medical practice was not decisive. The word “required” signifies that mere desire of the landlord was not enough. In the instant case, it may be conceded that respondent no. 2 genuinely intended to start his medical practice, but the question is whether he had some other accommodation available for starting it. The Prescribed Authority accepted the evidence of the petitioner and held that the father of respondent no. 2 had three shops which were vacant and that one of them could be utilized for the purpose of opening a clinic for respondent no. 2. If a shop was available for being used by respondent no. 2, his application, for evicting the petitioner from the premises, could not be considered as bona fide. Consequently, the requirement would also not be genuine. The appellate authority, however, held that the property owned by the father could not be considered for deciding an application under section 21 of U.P Act no. XIII of 1972. The view of the appellate authority is not sound. The question was whether one of the shops belonging to the father of the respondent no. 2 was available for the use and occupation of the said respondent. If that shop was available and was lying vacant, the respondent no. 2 could occupy the same and start his business. What was necessary to be found was whether the respondent no. 2 could start his business in another shop. If that was so his requirement for the present shop could not be genuine. Merely because that one of those shops belonged to the father of respondent no. 2 and not to the respondent himself was erroneously taken into account by the appellate authority for coming to the conclusion that the need of respondent no. 2 of this shop was bona fide. Section 21(1)(a) requires landlord to establish his bona fide requirement in respect of the shop regarding which the application has been filed. If another shop was available to respondent no. 2, the appellate authority erred in ignoring the same.
7. Sri Rishi Ram the learned Advocate General invited my attention to the affidavit of Rameshwar Prasad father of respondent no. 2 for proving that none of the shops belonging to the father of the said respondent was vacant. There would have been no difficulty in accepting the argument of the respondent learned counsel, had this affidavit and other evidence adduced by the parties been considered by the appellate authority and a finding was given thereon. The appellate authority thought that under the law the property belonging to family members would not be considered for the purpose of availability of accommodation to a particular landlord, the same would not be a ground to hold to reject an application filed under section 21. The appellate authority erred in doing so.
8. The next question that may be considered is regarding the comparative hardship. The Prescribed Authority found that the likely hardship which may be suffered by the petitioner would be greater. The appellate authority, however, took a different view, on the ground that as the petitioner was a business man carrying on a hotel at a small scale he was not likely to suffer any hardship. The view of the appellate authority appears to be patently erroneous. The petitioner might have been a small business man but that in itself was not decisive of the controversy. The appellate authority lost site of the fact that the income earned from the shop in dispute was the only source of the livelihood for the petitioner himself and his family members which consisted of eleven persons. If the appellate authority had found evidence and recorded a finding that alternative accommodation was available to the petitioner, the matter would have been different. The finding on the question of greater hardship was vitiated by a mistake of law on account of a wrong approach to the said question. The question of compartative hardship was intimately tagged with that of the question of bona fide requirement.
9. From what I have said above, the judgment of the appellate authority cannot be sustained. The same is liable to set aside. The respondent's learned counsel also invited my attention to a sale deed of a house which had been obtained by the petitioner in 1976 and urged that the petitioner could shift his business to the premises situated on the land purchased by the petitioner under the aforesaid sale deed. The petitioner did not deny that he had obtained a sale deed I but asserted that the property purchased by him was agricultural land and was unfit for the purpose of his business. As I am sending the case to the appellate authority for a fresh decision the respondent no. 2 may file the said document as additional evidence. For the reasons given above, the appellate judgment dated October 20, 1978 is set aside and the appellate authority is directed to decide the appeal afresh. The parties shall bear their own costs.
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