The central legal point established in the judgment is the genuine need of the landlord for the shop and the unavailability of alternative premises.

Sunita Agarwal, J. –

By means of the present writ petition, the order of the Appellate Court below in rejecting the release application is under challenge. The release application has been filed for the need of the landlord and his son. It is categorically stated in paragraph no. 2 of the release application that there exist 5 shops on the ground floor of the premises in question out of which two shops namely shop no. 2 and shop no. 5 are in the tenancy of the respondent (Krishna Swaroop). Initially shop no. 2 was given on rent but later on shop no. 5 was also leased out to the respondent.

2. With the passage of time, the petitioner's sons have grown up and his third son Tushar Gaurav wanted to start his business in the shop in question The prayer was made to release one shop of smaller area of 5'x11.5' shop no. 2 in the tenancy of the respondent. Another shop no. 5 measuring 7'x10.5' will still be under his tenancy. There is no dispute about the area of two shops.

3. The release application was allowed by the Prescribed Authority with the finding that the petitioner needed the shop in dispute namely shop no. 2 for his son Tushar Gaurav. The contention of the respondent that the petitioner's son was doing accountancy work was repelled and it is recorded by the Court below that the respondent has not been able to establish that the son of the landlord was engaged in any business.

4. On the comparative hardship, it was recorded by the Court below, that there is no other shop in vacant possession of the landlord. In case one shop is vacated by the tenant he will not suffer much hardship, on the other hand in case of rejection of release the landlord son would be deprived his need to start a business.

5. In appeal, these two findings recorded by the Prescribed Authority have not been touched rather the appellate Court on its own notion has rejected the release application on the ground that the landlord had failed to establish his bona fide need for the shop in question inasmuch as it is not clear in the release application as to whether the landlord or his son require the shop in question. Further the nature of the proposed business has not been disclosed in the release application. The landlord being 60 years old could not have any need to start a business, this apart the landlord's son was aged about 35 years and therefore it could not be believed that he was unemployed.

6. Third ground for rejection of the release is that the landlord had earlier filed a SCC suit for eviction of the tenant on the ground of default in payment of rent in the year 1987 and 1990 which were dismissed and the revision was also rejected. After dismissal of these suits, the release application under Section 21 (1) (a) has been filed in an attempt to evict the petitioner. As the landlord has not come with the clean hands, the release application cannot be entertained.

7. In paragraph 11 of the judgement of the Appellate Court below, on the basis of Annexure 2 appended to the affidavit 47Ga filed by the landlord, it was recorded that one shop in possession of the landlord which can be used by him to set up business for his son. These findings cannot be sustained for the reason that in the release application the categorical stand of the landlord is that his son Tushar Gaurav was unemployed and he needed the shop to start his business. There is no confusion in the mind of the landlord and the Appellate Court has developed an irrelevant ground to reject the release.

8. So far as the availability of one shop to the landlord is concerned the attention of the Court has been invited to page 89 of the paper book to assert that this document dated 14.08.1986 of the Nagar Palika Ghaziabad indicates that in the year 1986-1991 there existed 5 shops in the premises in question out of these 5 shops are, shop no. 2 was shown in the tenancy of Krishan Swaroop the respondent, whereas shop no. 5 was in occupation of the landlord. It is admitted between the parties that