Irshad Ali, J. 1. Heard Sri Manish Kumar, learned Senior Counsel assisted by Sri Atul Kumar Dwivedi, learned counsel for the petitioner and to the learned Additional Chief Standing Counsel on behalf of State respondent. 2. In spite of service of notice, no one has appeared on behalf of respondent Nos. 2 and 3. 3. Factual matrix of the case is that the petitioner purchased a portion of the building including the disputed shop in occupation of respondent No. 2 on 16.08.1988. A notice was issued to the respondent No. 2 on 28.10.1991 under Section 106 of the Transfer of Properties Act and thereafter, an application under Section 21(1)(a) of U.P. Act No. 13 of 1972 was filed for release of the disputed shop on 03.09.1994. The respondent No. 2 filed written statement on 13.09.1995. The prescribed authority after hearing the parties and taking into consideration the contents of the release application as well as the written statement filed by the respondents by taking notice of the ingredients required to be considered, passed an order for release of the shop on 18.05.1996. The respondent No. 2 preferred an appeal against the order passed by the prescribed authority, which was allowed dismissing the application for release filed under Section 21(1)(a) of U.P. Act No. 13 of 1972. 4. Assailing the order passed by the appellate authority, submission of learned Senior Counsel for the petitioner is that the appellate Court while passing the impugned order has ignored the finding returned by the prescribed authority on the bonafide requirement and comparative hardship of the petitioner. In support of submission advanced on the point of bonafide requirement and comparative hardship, learned Senior Counsel for the petitioner has placed reliance upon certain judgments, which are as under: i) Anil Bajaj and another Vs. Vinod Ahuja; 2014 (15) SCC 610 , paragraph Nos. 6 to 8. ii) Radhey Shayam Agarwal Vs. Addl. District and Sessions Judge, Court No. 13 Lucknow and another; 2006 (24) LCD 1141, paragraph Nos. 16 to 18. iii) Zareena Haider and others Vs. Special Judge E.C. Act/ADJ, Lucknow and others; 2013 (31) LCD 2396 , paragraph Nos. 12, 16 to 18. iv) Dr. Iqbal Ahmad Vs. 2nd Additional District Judge, Ballia and another; 2005 (23) LCD 221, paragraph No. 10, 12, 13 and 14. v) Krishna Kumar Rastogi Vs. Sumitra Devi; (2014) 9 SCC 309 , paragraph No. 9. 5. Special Judge E.C. Act/ADJ, Lucknow and others; 2013 (31) LCD 2396 , paragraph Nos. 12, 16 to 18. iv) Dr. Iqbal Ahmad Vs. 2nd Additional District Judge, Ballia and another; 2005 (23) LCD 221, paragraph No. 10, 12, 13 and 14. v) Krishna Kumar Rastogi Vs. Sumitra Devi; (2014) 9 SCC 309 , paragraph No. 9. 5. He further submitted that the appellate court has misread the provisions contained under Rule 17 framed under the Act of 1972. He submitted that Rule 17 of the Act applies in the case, wherein application has been moved under Section 21(1)(b) of the Act of 1972. Thus, his submission is that the provisions referred while passing the impugned order is not attracted to the present facts and circumstances of the case. 6. He next submitted that the respondent No. 2 was offered that after construction of the shop, he will be provided one shop to run his business of Dentist and the same was refused by him, thus, the appellate court on wrong premises has proceeded to allow the appeal and dismissed the release application. 7. He further submitted that the appellate court cannot suggest to the landlord to run his business at other place taking into consideration the suggestion of the tenant to run his business. 8. Learned Senior Counsel for the petitioner further invited attention of this Court on the written statement filed by the respondent No. 2; annexure No. 3 to the writ petition and pointed out that it is admitted case of the respondent No. 2 that the petitioner and his two sons are running the business at Gallamandi, thus, his submission is that the appellate court while passing the impugned order has ignored the admission of the tenant in the written statement. 9. In view of the above, his submission is that, the appellate court has committed gross illegality in passing the impugned order, therefore, the same is not sustainable in law. 10. I have considered the submission advanced by learned counsel for the petitioner and perused the material on record as well as the law reports relied upon by learned Senior Counsel for the petitioner and the counter affidavit filed by learned counsel for respondent Nos. 2 and 3. 11. 10. I have considered the submission advanced by learned counsel for the petitioner and perused the material on record as well as the law reports relied upon by learned Senior Counsel for the petitioner and the counter affidavit filed by learned counsel for respondent Nos. 2 and 3. 11. To resolve the controversy involved in the present writ petition, the provisions contained under Section 21(1)(a) of U.P. Act No. 13 of 1972 is being quoted below: "21. Proceeding for release of building under occupation of tenant. - (1)(a) that the building is bona fide required either in its existing form or after demolition and new construction by the landlord for occupation by himself or any member of his family, or any person for whose benefit it is held by him, either for residential purposes or for purposes of any profession, trade or calling, or where the landlord is the trustee of a public charitable trust, for the objects of the trust." 12. On its perusal, it is evident that while considering the release application, the prescribed authority has to consider the bonafide requirement, comparative hardship and irreparable loss and injury. 13. The prescribed authority while dealing with the matter of release application, on perusal of the evidence and material on record, passed the order holding that the petitioner has made out a case for release of shop and in comparison of the tenant, the bonafide requirement and comparative hardship are in favour of the landlord. 14. In support of submission advanced, learned Senior Counsel for the petitioner relied upon certain judgments, which are as under: i) Anil Bajaj and another Vs. Vinod Ahuja (Supra): "6. In the present case it is clear that while the landlord (appellant No. 1) is carrying on his business from a shop premise located in a narrow lane, the tenant is in occupation of the premises located on the main road which the landlord considers to be more suitable for his own business. The materials on record, in fact, disclose that the landlord had offered to the tenant the premises located in the narrow lane in exchange for the tenanted premises which offer was declined by the tenant. It is not the tenant's case that the landlord-appellant No. 1 does not propose to utilize the tenanted premises from which eviction is sought for the purposes of his business. It is not the tenant's case that the landlord-appellant No. 1 does not propose to utilize the tenanted premises from which eviction is sought for the purposes of his business. It is also not the tenant's case that the landlord proposes to rent out/keep vacant the tenanted premises after obtaining possession thereof or to use the same is any way inconsistent with the need of the landlord. What the tenant contends is that the landlord has several other shop houses from which he is carrying on different business and further that the landlord has other premises from where the business proposed from the tenanted premises can be effectively carried out. It would hardly require any reiteration of the settled principle of law that it is not for the tenant to dictate to the landlord as to how the property belonging to the landlord should be utilized by him for the purpose of his business. Also, the fact that the landlord is doing business from various other premises cannot foreclose his right to seek eviction from the tenanted premises so long as he intends to use the said tenanted premises for his own business. 7. The grounds on which leave to defend was sought by the tenant and has been granted by the High Court runs counter to the fundamental principles governing the right of a tenant to contest the claim of bonafide requirement of the suit premises by the landlord under the Delhi Rent Control Act, 1958. Even assuming the assertions made by the tenant to be correct, the same do not disclose any triable issue so as to entitle the tenant to grant of leave to defend. 8. We are, therefore, of the view that the impugned order dated 20.09.2012 of the High Court of Delhi is not legally sustainable. We, accordingly, set aside the same and allow this appeal and restore the order dated 02.09.2011 passed by the learned Additional Rent Controller, Delhi." ii) Radhey Shayam Agarwal Vs. Addl. District and Sessions Judge, Court No. 13 Lucknow and another (Supra): "16. The tenant Puttan Lal was required to demonstrate before this Court by passing a specific order as to what efforts he had made to find out alternative accommodation for his residential or commercial purpose since November, 1988 when the release application was filed. Addl. District and Sessions Judge, Court No. 13 Lucknow and another (Supra): "16. The tenant Puttan Lal was required to demonstrate before this Court by passing a specific order as to what efforts he had made to find out alternative accommodation for his residential or commercial purpose since November, 1988 when the release application was filed. He has filed an affidavit dated 5.4.2006 indicating that he cannot afford to pay more than Rs. 100 as against Rs. 20 per month presently being paid as rent for any other shop in the nearby locality and that he failed to get a shop at this rent. He has reiterated in the affidavit that the landlord is having sufficient residential accommodation and shops in the city of Lucknow, which fact has been denied by the petitioner. As per Sri S.M.K. Chaudhary, learned Counsel for the petitioner, several shopping and residential complexes have come up in New Hyderabad. Nishatganj and adjoining areas. Besides, several residential colonies of U.P. Housing and Development Board, Lucknow Development Authority and other cooperative societies have come up in the nearby areas. Land for housing and commercial use is available to the public and can be purchased through loans on lower rate of interest offered by the nationalized and co-operative banks. These facilities ought to have been availed by the tenant, opposite party No. 2. There is no force in the submission of Sri M.S. Kotwal, learned Counsel for opposite party No. 2 that no accommodation was available to the tenant and that he cannot afford to pay more than Rs. 20 per month. The Hon'ble Supreme Court of India and this Court in recent decisions, as in B.C. Bhutada v. G.R. Mundada and Salim Khan v. IVth Additional District Judge. Jhansi 2006 (1) ARC 588, have held that where the tenants did not show what efforts they made to search alternative premises, it is sufficient to tilt the balance of hardship against them. Even under Rule 10(3) of the Rules the tenant has failed to demonstrate whether he had filed any application to the appropriate authority for allotment of another accommodation. Thus, despite an opportunity being given by this Court, the respondent No. 2 has failed to demonstrate his serious efforts, if any, made for finding out alternative accommodation or submission of any such allotment application as provided under Rule 10(3) of the Rules. Thus, despite an opportunity being given by this Court, the respondent No. 2 has failed to demonstrate his serious efforts, if any, made for finding out alternative accommodation or submission of any such allotment application as provided under Rule 10(3) of the Rules. Thus, the question of comparative hardship ought to have been decided by the appellate authority against the tenant. The judgment and order passed by the appellate court Is, therefore, wholly erroneous and unsustainable in law. I find support in my view from the Judgments of the Hon'ble Supreme Court of India as in 2005 (2) ARC 793 . 17. The appellate authority has also ignored the finding of the learned prescribed authority that the landlord has a right to use the premises for expanding his business and augment his income vide Gaya Prasad v. Pradeep Srivastava (2001) 2 SCC 604 . The Hon'ble Supreme Court in another Judgment in Ragavendra Kumar v. Firm Prem Machinery and Co., has held that it is a settled position of law that the landlord is the best Judge of his requirement for residential or business purpose and he has got complete freedom in the matter. In the said case, the plaintiff landlord wanted the eviction of the tenant from the suit premises for starting his business as it was suitable and it cannot be faulted. Similar views have been expressed in G.C. Kapoor v. Nand Kumar Bhasin and Ors. This Court in Smt. Nirmala Tandon and Ors. v. Xth Additional District Judge, Kanpur Nagar and Ors. 1996 (2) ARC 409 : 1997 (1) AWC 2 .59 (NOC) and Shree Chand Gupta v. XVIIIth Additional District Judge, Meerut and Ors., has also dealt with the issue that a finding of fact may be interfered with when it is based on account of wrong application of principle of law relevant thereto or relevant material has not been taken into consideration, or a finding is otherwise arbitrary or perverse. These elements are present in this case. I find force in the submissions made by Sri S.M.K. Chaudhary, learned Counsel for the petitioner which are squarely covered by the case-laws cited by him. as referred to above. On the other hand, the decisions cited by Sri M. Section Kotwal, learned Counsel for the opposite party No. 2, as referred to above, cannot be applied in the present set of circumstances. 18. as referred to above. On the other hand, the decisions cited by Sri M. Section Kotwal, learned Counsel for the opposite party No. 2, as referred to above, cannot be applied in the present set of circumstances. 18. In the opinion of this Court, the view taken by the appellate authority is highly erroneous in law. The tenant is already having in his possession a portion of the building for residential purpose. It is an uncontroverted fact that he has purchased a double-storyed House No. 9. Gopi Nath Building, R.B.L. Road, Lucknow where he and his family are residing or if not residing, he can continue in the portion of the building which is still under his occupation. He has not searched alternative accommodation. These facts by itself are sufficient to decide the question of comparative hardships against the tenant. The Hon'ble Supreme Court of India in the case of Siddalingama v. M. Shenoy 2002 (46) ALR 18 (SC), has held that the entire Rent Control Act is basically meant for the benefit of the tenant and provision of release on the ground of bonafide need is the only provision which treats the landlords with some sympathy." iii) Zareena Haider and others Vs. Special Judge E.C. Act/ADJ, Lucknow and others (Supra): "12. This finding of the lower appellate court is utterly erroneous in law. Bona fide need does not mean dire need vide Dattatraya Laxman Kamble v. Abdul Rasul Moulali Kotkunde & Anr., AIR 1999 SC 2226 . Landlords cannot be compelled to use verandas as rooms to fulfil their need so that tenant may continue to enjoy possession of the tenanted accommodation. Verandahs are not built to be used as rooms etc. Supreme Court in Sarla Ahuja v. United India Insurance Company Limited, AIR 1999 SC 100 has held that tenant cannot dictate the landlord as to how he should satisfy his need without disturbing the tenant. Same view has been taken in the following authorities: (i) Prativa Devi v. T.V. Krishnan, 1996 (5) SCC 353 (ii) Ragavendra Kumar v. Firm Prem Machinary & Co., AIR 2000 SC 534 (iii) R.C. Tamrakar and anr. v. Nidi Lekha, AIR 2001 SC 3806 (para-10) (iv) Dinesh Kumar Vs. Yusuf Ali, AIR 2010 SC 2679 (para-8). 16. Same view has been taken in the following authorities: (i) Prativa Devi v. T.V. Krishnan, 1996 (5) SCC 353 (ii) Ragavendra Kumar v. Firm Prem Machinary & Co., AIR 2000 SC 534 (iii) R.C. Tamrakar and anr. v. Nidi Lekha, AIR 2001 SC 3806 (para-10) (iv) Dinesh Kumar Vs. Yusuf Ali, AIR 2010 SC 2679 (para-8). 16. Regarding comparative hardship, the lower appellate court held that the tenants were using their residential house at Pan Dariba for running printing and publishing business hence they had no alternative accommodation and as their family consisted of 16 members, hence they would be thrown on street in case of eviction. Prescribed Authority had held that tenants were quite wealthy and were paying very good income tax. All these aspects were not touched by the lower appellate court. 17. There cannot be any doubt, looking to the number of family members and their professions, that the landlords required additional accommodation. Tenants were having a residential house but they were using the same for commercial purposes. The house in dispute is situate at a famous busy road, hence the area where it is situate is more beneficial for advocates chamber. As held by the Supreme Court in "Chandrika Prasad v. Umesh Kumar Verma" AIR 2002 SC 108 a less advantageous accommodation available to the landlord is no ground to reject the release application for a more advantageous accommodation in occupation of tenant. In the said case, accommodation was required for establishing clinic for doctor son-in-law of the landlord. The Supreme Court held that the fact that the father of the son-in-law of the landlord possessed a house in a less important area was immaterial. 18. Supreme Court in Badrinarayan Chunilal Bhutada v. Gonindram Ramgopal Mundada, AIR 2003 SC 2713 : 2003 (2) SCC 320 (para-8) has held that bona fide requirement of landlord implies an element of necessity. The necessity is a necessity without regard to the degree of which it may be. Degree of urgency or the intensity of felt need assumes significance for the purpose of comparative hardship." iv) Dr. Iqbal Ahmad Vs. 2nd Additional District Judge, Ballia and another (Supra): "10. The main emphasis of the lower appellate court was on the fact that landlord could not show that his medical practice was of such scale which required more accommodation. Degree of urgency or the intensity of felt need assumes significance for the purpose of comparative hardship." iv) Dr. Iqbal Ahmad Vs. 2nd Additional District Judge, Ballia and another (Supra): "10. The main emphasis of the lower appellate court was on the fact that landlord could not show that his medical practice was of such scale which required more accommodation. Even a Doctor having small number of patients per day is entitled to have reasonable accommodation for his clinic. Judicial notice may be taken of the fact that often allopathic medicines, which are prescribed by doctors, may be purchased from any shop. However, Homeopathic doctors invariably give medicines to the patients by themselves. No such shop may be found in any city where Homeopathic medicines are sold to the patients on the prescription. The tenant suggested that shop A could be partitioned and in one portion landlord, doctor could check the patients and writ prescriptions and from the other portion his compounder could give medicines to patients. This suggestion was self serving. Tenant has got no business to dictate the landlord as to how he can squeeze his need in smaller portion. 12. Regarding the shop taken on rent by the tenant, the lower appellate court accepted the version of the tenant that he was using the said shop as godown. If the tenant is using a shop as godown, it is his look (out). In such situation it can not be said that the said shop is not available to the tenant. As the tenant has already got another shop on rent, hence question of comparative hardship has to be decided against him. Rule 16(2) (b) which is quoted below is squarely attracted to the fact of the case. "Rule 16(2)(b):- Where the tenant has available with him suitable accommodation to which he can shift his business without substantial loss there shall be greater justification for allowing the application." 13. Even otherwise tenant did not bring on record any evidence to show that he made any efforts to purchase or take on rent any alternative accommodation after filing of release application. It was also very relevant for deciding the question of comparative hardship against the tenant (vide AIR 2003 SC 2713 ). 14. Even otherwise tenant did not bring on record any evidence to show that he made any efforts to purchase or take on rent any alternative accommodation after filing of release application. It was also very relevant for deciding the question of comparative hardship against the tenant (vide AIR 2003 SC 2713 ). 14. Alongwith written arguments filed by learned counsel for tenant respondent No. 2, copy of an affidavit of landlord petitioner sworn on 17.1.2001 filed by him before Assistant Registrar, Funds (sic-Firms), Societies and Chits, Varanasi Division, Varanasi in file No. B-3064 has been filed. In para 9 of the said affidavit it was stated that Javed Iqbal Ansari (son of petitioner) is head master of Hazrat Aasi Junior High School. No notice can be taken of the copy of a document, which is filed alongwith written written arguments. The said copy has not been filed alongwith any affidavit. Even if for the sake of arguments it is accepted that the son of landlord is head master in some school still the fact remains that tenant has categorically admitted that in the shop shown by letter C in the map landlord has installed Photostat and lamination machines. If the statement of the tenant that son of the landlord is head master in school is taken to be correct then it would mean that landlord himself is carrying on the business of making copies from Photostat machine and laminating the documents from lamination machine. If the landlord in addition to his medical practice in Homeopathy has started the said business also, then he can not be put to disadvantage due to that. Tenant himself repeatedly asserted that landlord was not having good medical practice. In view of this no fault can be found with the landlord if he starts additional business for augmenting his income. Learned counsel for tenant respondent also argued that during the pendency of writ petition landlord petitioner got vacated some of his shops from his previous tenant and let out the same to other tenants. For this argument no foundation has been laid in the form of any affidavit hence it cannot be considered." v) Krishna Kumar Rastogi Vs. Sumitra Devi (Supra): 11. In Mohd. Ayub v. Mukesh Chand, while interpreting the above provisions of law, this Court has observed in para 15 as under: (SCC p. 159) "15. For this argument no foundation has been laid in the form of any affidavit hence it cannot be considered." v) Krishna Kumar Rastogi Vs. Sumitra Devi (Supra): 11. In Mohd. Ayub v. Mukesh Chand, while interpreting the above provisions of law, this Court has observed in para 15 as under: (SCC p. 159) "15. It is well settled the landlord's requirement need not be a dire necessity. The court cannot direct the landlord to do a particular business or imagine that he could profitably do a particular business rather than the business he proposes to start. It was wrong on the part of the District Court to hold that the appellants' case that their sons want to start the general merchant business is a pretence because they are dealing in eggs?????Similarly, length of tenancy of the respondent in the circumstances of the case ought not to have weighed with the courts below." 15. In the case of Anil Bajaj and another Vs. Vinod Ahuja (Supra) relied upon by learned counsel for the petitioner, the landlord was carrying on business from a shop premises located in a narrow lane, whereas the tenant was in occupation of the premises located on the main road, which the landlord considers to be more suitable for his own business. The landlord offered to the tenant the premises located in the narrow lane in exchange of the tenant's premises, which was declined by the tenant. The tenant contended that the landlord has several other shops and houses, from where he is carrying out his business and suggested that he can run his shop in other available shops to him. 16. After considering the material evidence on record, the court held that the tenant cannot dictate to the landlord as to how the property belonging to the landlord should be utilized by him for the purpose of his business. It was further recorded that the landlord is doing business from various other premises cannot foreclose his right to seek eviction from the tenanted premises so long as he intends to use the tenanted premises for his own business. 17. It was further recorded that the landlord is doing business from various other premises cannot foreclose his right to seek eviction from the tenanted premises so long as he intends to use the tenanted premises for his own business. 17. In the case in hand, the landlord offered to the tenant that after construction of the shop, he will be provided one shop to run his business of dentist and the tenant refused the same and suggested to the landlord to run his business at some other place, which was accepted by the appellate Court. 18. In view of the above, the ratio of the judgments referred herein above, is fully applicable to the present facts and circumstances of the case, therefore, this Court is of the opinion that the tenant cannot suggest to the landlord to run his business from some other place. 19. In the case of Radhey Shayam Agarwal Vs. Addl. District and Sessions Judge, Court No. 13 Lucknow and another (Supra), the question was that since the application for release was filed, what effort had been made to find out alternative accommodation for residential or commercial purposes since the date the release application was filed. The claim was setup by the tenant that the landlord is having sufficient residential accommodation and shops in the city of Lucknow, which was denied by the petitioner-landlord. Considering the judgment of Hon'ble Supreme Court in the case of B.C. Bhutada v. G.R. Mundada and Salim Khan v. IVth Additional District Judge. Jhansi 2006 (1) ARC 588, it was held that where the tenant did not show the effort made to search alternative premises, it is sufficient to tilt the balance of hardship against him. The tenant failed to establish that he filed any application to the appropriate authority for allotment of another accommodation. 20. In the present case, the appellate authority has failed to appreciate that the tenant has ever tried to search out any other alternative accommodation during pendency of the release application. Thus, in the opinion of the Court, the appellate authority is highly erroneous in law in proceeding to pass the impugned order. 21. In other two judgments in the cases of Zareena Haider and others Vs. Special Judge E.C. Act/ADJ, Lucknow and others (Supra) and Dr. Iqbal Ahmad Vs. Thus, in the opinion of the Court, the appellate authority is highly erroneous in law in proceeding to pass the impugned order. 21. In other two judgments in the cases of Zareena Haider and others Vs. Special Judge E.C. Act/ADJ, Lucknow and others (Supra) and Dr. Iqbal Ahmad Vs. 2nd Additional District Judge, Ballia and another (Supra), the court has proceeded to hold that the landlord cannot be compelled by the tenant to run his shop in an accommodation, which is not feasible to run the shop/business. Hon'ble Supreme Court in the case of Badrinarayan Chunilal Bhutada v. Gonindram Ramgopal Mundada, AIR 2003 SC 2713 : 2003 (2) SCC 320 has held that the bona fide requirement of landlord implies an element of necessity. The necessity is a necessity without regard to the degree of which it may be. Degree of urgency or the intensity of felt need assumes significance for the purpose of comparative hardship. 22. The appellate court in the present case, in spite of considering the hardship of the landlord, has proceeded to suggest on otherwise considerations to fulfill the need of the landlord. The counter affidavit filed by learned counsel for respondent Nos. 2 and 3 supports the contents made in the written statement filed before the prescribed authority as well as before the appellate court, which denies the offer made by the landlord to provide one shop after construction of the shop to run business to the tenant of dentist, which was refused by the respondent Nos. 2 and 3. This act of the tenant cannot be justified in law. 23. On over all consideration and on perusal of the material on record as well as the judgments referred herein above, it is well established that the appellate court has committed manifest error of law in dismissing the release application and allowing the appeal. The appellate court has not considered the finding recorded by the prescribed authority in allowing the application for release of the shop and by ignoring the same has proceeded to pass the impugned order. The appellate court has mis-read the applicability of the provisions of Rule 17 framed under U.P. Act No. 13 of 1972 and has wrongly applied to the facts and circumstances of the present case. The appellate court has mis-read the applicability of the provisions of Rule 17 framed under U.P. Act No. 13 of 1972 and has wrongly applied to the facts and circumstances of the present case. Rule 17 of the Act of 1972 applies, in case the application has been moved on the ground that the building is in dilapidated condition and after its demolition fresh construction shall be made. 24. The judgment and order passed by the appellate court suffers from apparent illegality and cannot be sustained. In view of the observation made above, the impugned order dated 12.08.2004 being not sustainable in law is hereby set aside. 25. The writ petition succeeds and is allowed. It is, however, directed that the opposite parties shall vacate the disputed premises/shop within the period specified by the prescribed authority under the order dated 18.05.1996.