IMPORTANT POINT
A tenant not even trying to find an alternate premises during the long pen dency of the litigation is not entitled to plea of comparative hardship.

JUDGMENT

S.B. Sinha, J. —

1. Leave granted.

2. This appeal is directed against a judgment and order dated 20.11.2006 passed by the High Court of Uttranchal at Nainital in Writ Petition No. 581 of 2005 affirming the judgment and order dated 4.6.2005 passed by the District Judge, Nainital allowing an appeal from a judgment and order dated 22.11.2004 whereby and whereunder an application for release filed by the respondent on the ground of his bona fide requirement was dismissed.

3. Respondents 1 and 2 are the joint owners of a shop situated in H.No. 110 Durga Cottage Annexy Safak Suffock Hall Compound, Tallital, Nainital. Khyali Ram, the husband of the appellant, was a tenant therein. He died leaving behind the appellant (his wife) and two daughters Smt. Hema Tiwari and Smt. Deepa Joshi. They are married. They have no concern with the shop in question. Respondent No. 3 was in military service. He retired from army. He was living at Nainital with his wife and children. He draws a sum of Rs.2,000/- (Rupees Two thousand only) by way of pension. He, therefore, wanted to start his business in the said shop. An application for release of the shop was filed before the prescribed authority being Chief Judicial Magistrate, Nainital in terms of Section 21(1)(a) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. The said application was dismissed, inter alia, on the premise that applicants on a shop other than the shop in question holding :

“However, as regards need of N.A. No. 1 for the said shop, she has no other means of her livelihood except the shop in question and it is also clear that the N.A. No.1 is an old lady of 50-50 years of age because of which she was unable to carry business elsewhere. In such a case, therefore, in relation to the applicants N.A. No.1 has intense and bonafide need of the shop in question and in case the shop in question is released in favour of the applicants undoubtedly the N.A. No.1 having no means of livelihood would face too much hardship, when applicant No. 2 is a retired man and is living on pension and he is still young and he has a shop adjoining the shop in question and he can carry his business elsewhere. In such a case therefore, in relation to applicants the N.A. No.1 has intense and genuine need of the shop in question and the relative hardship is very much in favour of the non applicants No. 1 and against the applicants.”

4. The Appellate Authority, however, reversed the said order holding that respondent No.3 was in bona fide need of the said shop for the purposes of carrying out an independent business. As regards comparative hardship, it was opined that Rule 16 of the Rules framed in terms of Section 41 of the Act 13 of 1972 would not be a ground for refusing to allow a release application. The writ petition filed by the appellant thereagainst as indicated hereinbefore has been dismissed by the High Court by reason of the impugned judgment.

5. The High Court, we may at the outset notice, has committed an error in holding that the findings of both the prescribed authority as also the Appellate Authority were concurrent; in fact the Appellate Authority reversed the findings of the prescribed authority.

6. Mr. R.P. Gupta, learned counsel appearing on behalf of the appellant would submit :

i) The High Court and the courts below have failed to take into consideration the scope and purport of the 4th proviso appended to Section 21(1)(a) of the Act vis-‘-vis Rule 16 of the Rules.

ii) While considering the question of comparative hardship, the appellate court as also the High Court should have made an attempt to balance the requirements of both the landlord and tenant by directing division of the tenanted premises into two, which measures 30 ft. x 20 ft.

iii) The fact that the husband of the petitioner was the tenant in the shop in question for a long time, viz., for more than 50 years, is itself a pointer to show that Rule 16 of the Rules would be applicable.

7. Mr. Sanj