The central legal point established in the judgment is the importance of genuine need, the distinction between 'desire' and 'need', and the tenant's obligation to demonstrate efforts to search for alternative accommodation.

Anil Kumar, J.

1. Heard Sri Mohd. Arif Khan, learned senior counsel assisted by Mohd. Adil Khan, learned counsel for petitioner, Sri Aftab Alam, learned counsel for respondent/landlord and perused the record.

2. Facts in brief of the present case are that Sri Mohd. Sohail-landlord moved an application under Section 21(1)(a) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, U.P. Act No. 13 of 1972 (hereinafter referred to as the 'Act') for release of the premises under the tenancy of the petitioner/Mohd. Iliyas which is portion of house No. 165/1, Maulviganj, Hata Khan Faquir Mohammad, P.S. Aminabad, District Lucknow comprises of one room in the ground floor on a monthly rent of Rs. 250/-.

3. Need as set up by the landlord in his release application under Section 21(1)(a) of the Act is that he wants to set up an independent business for his son from the shop under the tenancy of the petitioner. On behalf of tenant a written statement has been filed through his wife as at the relevant time he was in Saudi Arabia and from the shop in question electric repair work was carried on under the supervision of his wife with the help of other electricians.

4. By an order dated 06.10.2014, the prescribed authority allowed the PA Case No. 40 of 1997, challenged by the petitioner by filing an appeal under Section 22 of the Act 13 of 1973, allowed by order dated 20.07.2005.

5. Order 20.07.2005, passed by appellate authority was challenged by landlord/Mohd. Sohail by filing Writ Petition No. 132 (R/C) of 2005, allowed by order 04.08.2006, relevant portion quoted as under: -

"16. Thus, the entire approach of opposite party No. 1 in allowing the appeal preferred by opposite party No. 2 is manifestly erroneous and cannot be allowed to be sustained. The opposite party No. 1 fell in grave error in not considering the need of the landlord on the date when the application under section 21(1)(a) of the Act, was made. It further committed an error in not considering the question of comparative hardship in its right perspective. It failed to appreciated likely hardship which may occasion to the landlord from the refusal of the application as against likely hardship to the tenant from the grant of the application when at the relevant time opposite party No. 2 was not in India and was himself not doing any business activity in the shop in question. While considering the question of comparative hardship the opposite party No. 1 also did not have regard to the factors to be taken into account as enumerated under Rule 16 of the rules framed under the Act.

17. In the circumstances, the writ petition succeeds and is allowed with costs. The judgment and order passed by the Appellate Court is here by set aside. Opposite party No. 1 is directed to restore the appeal and decided afresh the question of need of the landlord as well as comparative hardship in the light of the observations made hereinabove keeping in mind principles laid down by the Apex Court as well as by this Court referred to hereinabove."

6. Accordingly, the matter has come up for consideration before the appellate authority and the rent appeal of tenant was dismissed on 19.11.2008.

7. Mohd. Arif Khan, learned Senior counsel for petitioner while challenging the impugned order submits that in the present case during the pendency of litigation, two shops have fallen vacant which have come to the possession of the landlord. In this regard, he has placed reliance on paragraph No. 10 of the writ petition, accordingly, he submits that one of the shop which has been fallen vacant was earlier occupied by Sri Dularey Mirza and other by Ghasitey Jamadar, so keeping in view the said facts there is no bona fide need of the landlord in order to estabhlish the said facts, a prayer has been made on behalf of the petitioner for issuance of the commission but the same has been rejected by the court below, so the action on the part of court below rejecting the petitioner's appli