Tilak Raj Bajaj & Ors. v. Shamshad Ahmad & Ors.

Matloob Ahmad who shall carry on his business in the first portion of the shop and for Km. Faraha who shall open the office of an Advocate in the latter portion of the premises in question. But the appellate Court rejected the plea of the petitioners that Km. Faraha has been selected in P.C.S. (J) i.e. Civil Judge ( Jr. Division) and she will join the service soon. This plea of the petitioners have been rejected by the appellate Court on the ground that need of Km. Faraha to open an office as an Advocate does not vanish till she joins the service. it is for Km. Faraha to choose either to go in service or to continue in profession. On the question of comparative hardship, the appellate Court has held that though the petitioners have established goodwill of the business and is entitled of protection of Rule 16 (2) (a) of the Act but since he did not make any effort to search an alternative accommodation, therefore considering the comparative hardship of Km. Farah avis-vis petitioners- tenant in the light of Rule 16(2)(d) under the U.P. Act No. XIII of 1972 the appellate Court allowed the appeal and application under Section 21 of the Act. The appellate Court, while considering the need of Km. Faraha, ought to have taken into account the fact that Km. Faraha had appeared in P.C.S.(J) examination and has been selected finally and there was no affidavit of Km. Faraha on record that she has decided not to go in service and she shall continue in profession. Therefore, the basis of bona fide need that Km. Faraha has to open an office stood implicitly vanished in absence of such an affidavit which shows that Km. Faraha may go to service. Thus, hardship of Km. Faraha could not have been taken into account. The appellate Court also fell into error in not taking into account that Matloob Ahmad is a retried person and is getting pension and is living in his village which is at the distance of 5 Kilometers only while the petitioners are tenant from the year 1956 and has earned business goodwill and the same business is only source of livelihood of petitioner and his family members. On vacating the premises, entire business will be ruined and the family will have to face starvation till the business is not resettled. Therefore, the findings recorded by the appellate Court are contrary to the factors enumerated under Clause (a) of sub-rule( 2) of Rule 16 of the Act. For the reasons recorded above, the writ petition is allowed with costs. The order of the appellate Court dated 25.5.2001 is set aside and the application under Section 21(1) (a) of the Act is rejected. Dt. 28-9-2002 P.Singh (P.C.Verma,J. )