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2022 DIGILAW 24 (ALL)

Naveen Chand Sharma v. Ram Babu

2022-01-05

J.J.MUNIR

body2022
JUDGMENT : J.J. Munir, J. 1. This is a landlord's writ petition assailing an order passed by the Additional District Judge, Court No.2, Mathura dated 16.08.2010, passed in P.A. Appeal No.19 of 2018, partly allowing the tenant's appeal under Section 22 of U.P. Act No. XIII of 1972. By the order impugned, the Additional District Judge, sitting as the Appellate Authority under the Act last mentioned, has set aside the order of the Prescribed Authority dated 04.08.2008, under Section 21(1)(a), but upheld the part, by which release has been granted under Section 21(1)(b) of the Act, subject to the tenant's right of re-entry. 2. The demised premises here is a 200 year-old shop, wherein Ram Babu, the sole original respondent to this petition, was a tenant since the year 1962. He was in occupation of the shop situate at Govardhan Tehsil, Mathura at a monthly rent of Rs.30/-. The shop was part of a larger property owned by the family of the sole petitioner, Naveen Chanda Sharma. Naveen Chanda Sharma received to his exclusive share the shop last mentioned in a partition brought about through Suit No.34 of 1988, Arvind Kumar vs. Naveen Chanda Sharma and others. Besides the aforesaid shop, the landlord also received in partition one room and another residential accommodation. The shop under reference shall hereinafter be referred to as the 'demised shop'. The landlord moved a composite application before the Prescribed Authority, Mathura under Section 21(1)(a) and (b) of the U.P. Act No. XIII of 1972 (for short, 'the Act'), seeking release of the demised shop on the ground of his bona fide need to set up business of a general merchant/ grocer, besides asking for release on ground that the demised shop was so dilapidated that it required demolition and new construction, which would then be utilised by the landlord to establish his proposed business of a general merchant. The application aforesaid was instituted in the month of November, 2002 and numbered on the file of the Prescribed Authority, Mathura as P.A. Case No.50 of 2002. 3. The bona fide need set up by the landlord was that he bona fide needed the demised shop to earn his livelihood. The application aforesaid was instituted in the month of November, 2002 and numbered on the file of the Prescribed Authority, Mathura as P.A. Case No.50 of 2002. 3. The bona fide need set up by the landlord was that he bona fide needed the demised shop to earn his livelihood. It was alleged that the landlord was an electrician and used to undertake jobs connected to the trade outside Govardhan However, he suffered a fracture to his foot, in consequence of which he had to give up his trade. He now stayed at Govardhan. He further said that he has no other shop to establish his business. In the circumstances, the landlord claimed that he is much troubled mentally, besides facing financial hardship. He requires the demised shop to establish his business. In addition, it was pleaded that the demised shop is in a dilapidated condition with its eastern and western walls completely gone and the northern and southern walls delicately holding. The roof has also fallen down. The structure is more than 200 year-old and is not fit for use by any person. 4. It was pleaded that the landlord had sufficient funds with him, which he would employ in getting a new shop constructed after demolishing the standing structure. It was also pleaded that the tenant-respondent would not suffer much hardship by comparison to the landlord, in case he were asked to vacate the shop, because he does not do any business there. He is holding on to the shop because it is occupied by him on a meager rent. One son of the tenant by the name Kedar is engaged in the trade of tailoring and works as a tailor. He has no need for the said ship. The landlord has a family, comprising his wife, a son and a daughter to support. It was pleaded further that the landlord asked the tenant to vacate the demised shop a number of times over, but the tenant-respondent did not oblige, because he wants to extort money for the purpose. The tenant-respondent refused to vacate finally in the month of November, 2002, which led the landlord to institute these proceedings. 5. The tenant filed a written statement denying the landlord's allegations, except the fact that he was a tenant in the said shop. The tenant-respondent refused to vacate finally in the month of November, 2002, which led the landlord to institute these proceedings. 5. The tenant filed a written statement denying the landlord's allegations, except the fact that he was a tenant in the said shop. It was pleaded that the landlord has no bona fide need for the demised shop, which he desires to get vacated, so that he can sell it of for a good price. It was also alleged that the tenant would suffer much on the score of comparative hardship because he had no other place to establish or run his business that he does in the demised shop. He had no other source of income. It was also pleaded in the written statement that the landlord-petitioner is a powerful and rich man and had several other shops in the same market-place at Govardhan, where the demised shop is located. He sold off those shops at a good price. The tenant pleaded that he is filing copies of the sale deeds executed by the landlord relating to other shops that he owned. The case regarding the demised shop being dilapidated was also traversed. It is pleaded that the demised shop, though old, like many old constructions, was in a safe and sound condition. It had no signs of giving way. It was also pleaded that the tenant carries on his business of a blacksmith since a long period of time. He has acquired a reputation in his trade. There are many customers, who come over to the tenant for jobs related to the trade, particularly, the fabrication of hand tools. It was specifically pleaded that the landlord-petitioner had sufficient space available to him to establish his business, but on 23.08.1999 he sold off two shops to one Pradeep Kumar Verma and another Mahesh Kumar Verma. If he had to establish a shop to earn his livelihood, he would not have sold off those shops. 6. The Prescribed Authority framed four issues for determination, that read (translated into English from Hindi): “1. Whether the applicant/ petitioner bona fide requires the disputed property? 2. Whether the disputed property is in a dilapidated condition and requires to be re constructed per necessity? 3. Whether the applicant/ petitioner has complied with the requirements of Rule 17 of the Rules framed under U.P. Act No. XIII of 1972? 4. Whether the applicant/ petitioner bona fide requires the disputed property? 2. Whether the disputed property is in a dilapidated condition and requires to be re constructed per necessity? 3. Whether the applicant/ petitioner has complied with the requirements of Rule 17 of the Rules framed under U.P. Act No. XIII of 1972? 4. In whose favour does comparative hardship lie?” 7. The petitioner-landlord filed his affidavit bearing Paper No.50- in support of the application, specifying his need further in Paragraph Nos.8 and 9 of the affidavit to the effect that he required the demised shop bona fide for the purpose of establishing a general merchant-cum-gift shop, after demolition and re-construction. Apart from the said fact, the demised shop was dilapidated with the eastern and western boundaries nonexistent. The northern and southern boundaries were testified to be in a precarious state. It was further deposed that on 03.03.2005, the Nagar Panchayat had served a notice asking the landlord to demolish and reconstruct the shop as it was in such a dilapidated state that it could endanger human life. 8. The case about the shop being dilapidated that required demolition and reconstruction need not be dwelt upon further because that is a case which both the Authorities below have accepted and granted release under Section 21(1)(b) of the Act. The issue is primarily about release of the demised shop under Section 21(1)(a) of the Act, which has been granted by the Prescribed Authority, but set aside on appeal. There are affidavits by the landlord and the tenant in support of their respective cases, besides those of their witnesses, to which allusion would be made, wherever necessary. 9. Parties have exchanged affidavits. This petition was heard finally by consent of parties and judgment reserved. 10. Heard Mr. Aditya Singh Parihar, learned Counsel holding brief of Mr. Rahul Sahai, learned Counsel for the petitioner and Mr. B.P. Verma, learned Counsel appearing on behalf of respondent nos. 1/1 and 1/2. 11. There is no challenge laid to the order of release passed by the Appellate Authority under Section 21(1)(b) of the Act on behalf of the tenant. The landlord assails the order of the Appellate Authority to the extent that the Prescribed Authority's order granting release under Section 21(1)(a) has been set aside. 12. 1/1 and 1/2. 11. There is no challenge laid to the order of release passed by the Appellate Authority under Section 21(1)(b) of the Act on behalf of the tenant. The landlord assails the order of the Appellate Authority to the extent that the Prescribed Authority's order granting release under Section 21(1)(a) has been set aside. 12. It is submitted by the learned Counsel for the landlord that the Appellate Authority has taken into consideration irrelevant facts and evidence that have no bearing on the bona fide need of the landlord. Elaborating on his submission, it is said that the Appellate Authority has looked into facts and evidence about the sale of two shops, earlier made by the landlord in favour of Pradeep Kumar Verma and Mahesh Kumar Verma, to hold that the landlord has no bona fide need. It is argued that the sale of the two shops was effected in the year 1999 whereas the release application was moved in the year 2002. It was, therefore, not at all relevant evidence to consider whether the landlord bona fide required the demised shop. It has also been submitted that the Appellate Authority has recorded a perverse finding that the landlord could not prove that he had any experience to carry on business that he proposed to set up in the new shop, after the demised shop was demolished and constructed afresh. Learned Counsel emphasizes that the settled position of the law is that a landlord need not require experience in the business that he seeks to commence, in order to satisfy his bona fide need for his livelihood. 13. The approach of the Appellate Authority has been also castigated as manifestly illegal and flawed on ground that the learned Judge has remarked that the landlord has failed to establish the fact that he sustained a fracture to his limb, and on that basis, drawn adverse inference against the case of bona fide need urged by the landlord. It is argued that there was sufficient medical and other evidence to prove that the landlord had sustained a fracture, which was not rebutted by the tenant leading evidence to the contrary. 14. It is also urged that the Appellate Authority has given misplaced weightage to the provisions of Rule 16(2) of the Rules framed under the Act, in answering the issue of comparative hardship. 14. It is also urged that the Appellate Authority has given misplaced weightage to the provisions of Rule 16(2) of the Rules framed under the Act, in answering the issue of comparative hardship. It is pointed out that the tenant had not adduced any evidence to establish his good will. Learned Counsel says that because the tenant has a business running in the demised shop since long, would not itself disentitle the landlord to relief. It is also urged that the fact that the tenant has not made efforts to search out alternative accommodation pending proceedings and earlier, would be a circumstance that would heavily weigh against the tenant while judging comparative hardship. 15. Contrary-wise, Mr. B.P Verma, learned Counsel for the tenant submits that the original tenant, Ram Babu is now dead and respondent nos.1/1, Nabli, who is Ram Babu's widow is 60 years old. The tenant's son, Kedar, respondent no.1/2 is 40 years old. It is argued that except the avocation of a blacksmith, that is carried on in the demised shop, the family of the deceased Ram Babu have no other source of livelihood. The findings recorded by the learned Additional District Judge on question of bona fide need have been supported by the learned Counsel for the tenant. He has urged that the case of bona fide need set up by the landlord that he required the shop to earn his livelihood, where the landlord would set up a general merchant’s shop or grocery has been rightly discarded by the Appellate Authority. It is argued by the learned Counsel that the landlord's need was not genuine or bona fide as he did not possess any experience of doing business of a grocer or general merchant. It is also argued that the landlord had sold out two adjacent shops on 23.08.1999, which would ex facie demonstrate that he was not in need of any accommodation to set up business in order to earn his livelihood. It is also argued that there is material on record that on the rear side of the demised shop, there is ample vacant land belonging to the landlord, where he could conveniently construct a shop for himself. It is also argued that there is material on record that on the rear side of the demised shop, there is ample vacant land belonging to the landlord, where he could conveniently construct a shop for himself. It is next submitted that the landlord had purchased a plot of land on 30.03.2003 admeasuring 334.40 square metres, situate at Mauza Bangar, Tehsil and District Mathura through a registered sale deed in the name of Nisha Sharma, his wife. It is also urged that the landlord has not brought on record any evidence about the fact that he ever sustained a fracture to his lower limb or that he has experience of undertaking the trade of electrician, on the edifice of which the case of bona fide need in the changed circumstances is now built. In view of the aforesaid submissions founded on whatever pleadings and evidence figures on the record, the learned Counsel for the tenant submits that the Appellate Authority has committed no error in not accepting the case of bona fide need urged on behalf of the landlord. 16. On the issue of comparative hardship, learned Counsel for the tenant has elaborately addressed the Court. It is submitted that the tenancy is in existence since the year 1962 and the sole source of livelihood available to the tenant. It is submitted that the Appellate Authority has rightly taken into consideration the mandate of Rule 16(2)(a) of the Rules, framed under the Act to conclude that the long subsisting tenancy tips the scales on the issue of comparative hardship in favour of the tenant. It is emphasized that the landlord has existing land on the rear side of the demised shop and had two shops that he sold off. It is submitted that the finding regarding comparative hardship is based on the evidence available, about which there is no illegality. It is, particularly, argued that the Appellate Authority is the last Court of fact and its opinion on the issue of bona fide need as well as comparative hardship that is based on relevant evidence cannot be interfered with by this Court in exercise of powers under Article 226 or for that matter, under Article 227 of the Constitution. 17. This Court has considered the rival submissions of parties, perused the impugned judgment as well as the order of the Prescribed Authority and the record. 18. 17. This Court has considered the rival submissions of parties, perused the impugned judgment as well as the order of the Prescribed Authority and the record. 18. The Appellate Authority has remarked that in the release application, the landlord has not said what kind of business he wishes to establish in the demised shop, that he would demolish and reconstruct. It has further been remarked that it has not been pleaded or proved by the landlord that he has experience to undertake any kind of trade or business, or the one that he intends to establish in the demised shop. It has, particularly, been remarked that in the affidavit 50, the landlord has said that he intends to establish the business of a general store in the demised shop, but no evidence has been adduced to show that the landlord has the requisite experience of establishing or handling that business. The Prescribed Authority had accepted the landlord's bona fide need and the case that the landlord intends to establish a general store or grocer's shop after the demised shop is vacated, demolished and reconstructed. 19. To the understanding of this Court, the findings of the Appellate Authority are hairsplitting and destructive of the purpose of Section 21(1)(a) of the Act. The provision for release is one that is designed to secure the landlord's interest by freeing his accommodation of the tenancy, if he bona fide requires it. The term 'bona fide need' cannot be confounded for a dire or desperate need. The Appellate Court has opined that the landlord's case about a fracture to his lower limbs, that disabled him from undertaking the job of an electrician he used to do earlier outside Govardhan is not believable for want of evidence. The Appellate Authority has not believed that case because a fracture to one of the limbs, seemingly is a short lived disability, which would not prevent the landlord from carrying on his trade. This approach of the Appellate Authority cannot be countenanced. If the landlord desires to establish a general merchant’s shop or a grocery in a premises owned by him in order to earn his livelihood, he is within his rights to give up the trade of an electrician and pursue the business of a grocer. This approach of the Appellate Authority cannot be countenanced. If the landlord desires to establish a general merchant’s shop or a grocery in a premises owned by him in order to earn his livelihood, he is within his rights to give up the trade of an electrician and pursue the business of a grocer. That is the freedom which the landlord has and he cannot be asked to restrict his choice for a livelihood to his former trade. 20. So far as the experience to do business of a general merchant or grocer is concerned, the absence of evidence about that experience is a factor which the Appellate Authority has taken into consideration in manifest error. Experience in a particular business is not a pre-condition under the statute nor is there any principle requiring a landlord to prove his experience in the particular business, which he desires to establish in the premises that he seeks to be released. All that he is required to prove is his need, which should be bona fide. The landlord has a right to earn his livelihood by attempting any business permissible by law, even if he does not have any experience with it. In this connection, reference may be made to the decision of the Supreme Court in Mohinder Prasad Jain v. Manohar Lal Jain, (2006) 2 SCC 724 . The question arose in the context of release of a shop on the ground of bona fide need urged by the landlord to establish a wholesale business in Ayurvedic medicines. The case arose under the Haryana Urban (Control of Rent and Eviction) Act, 1973, where the provisions about the issue of bona fide need are substantially the same as those under the Act. In that context, upon the tenant objecting to the ground set up by the landlord for release on basis that he did not have any experience in the relevant business, it was held in the Mohinder Prasad Jain: “11. .......... The submission of the learned counsel for the appellant to the effect that before initiating the proceedings, the respondent was required to show that he had experience in running the business in Ayurvedic medicines, has to be stated to be rejected. There is no law which provides for such a precondition. .......... The submission of the learned counsel for the appellant to the effect that before initiating the proceedings, the respondent was required to show that he had experience in running the business in Ayurvedic medicines, has to be stated to be rejected. There is no law which provides for such a precondition. It may be so where a licence is required for running a business, a statute may prescribe certain qualifications or preconditions without fulfilment whereof the landlord may not be able to start a business, but for running a wholesale business in Ayurvedic medicines, no qualification is prescribed. Experience in the business is not a precondition under any statute. Even no experience therefor may be necessary. ........” 21. Similarly, in Ram Babu Agarwal v. Jay Kishan Das, (2010) 1 SCC 164 , the Supreme Court, while deciding the issue of bona fide need in the context of Madhya Pradesh Accommodation Control Act, 1961, held: “7. We are of the opinion that a person can start a new business even if he has no experience in the new business. That does not mean that his claim for starting the new business must be rejected on the ground that it is a false claim. Many people start new businesses even if they do not have experience in the new business, and sometimes they are successful in the new business also. Hence, we are of the opinion that the High Court should have gone deeper into the question of bona fide need and not rejected it only on the ground that Giriraj has no experience in footwear business.” 22. In view of the aforesaid position of the law, in the opinion of this Court, the finding recorded by the Appellate Authority, on the question of bona fide need based on the landlord's lack of experience with the business of a grocer or a general merchant, ex facie proceeds on an irrelevant consideration. The finding is, therefore, manifestly illegal. 23. The other facet on which the Appellate Authority has premised its finding about the absence of bona fide need is the fact that the landlord sold off two shops, adjacent to the demised shop, in favour of Pradeep Kumar Verma and Mahesh Kumar Verma. The finding is, therefore, manifestly illegal. 23. The other facet on which the Appellate Authority has premised its finding about the absence of bona fide need is the fact that the landlord sold off two shops, adjacent to the demised shop, in favour of Pradeep Kumar Verma and Mahesh Kumar Verma. For one, this finding ignores from consideration the very relevant fact that the sale of the two shops was a transaction that was done in the year 1999, whereas the release application was made in the year 2002 for an emergent bona fide need. The landlord cannot be held to account for the disposition of a property that he made three years antecedent in point of time to making the application. 24. The other crucial point that the Appellate Authority has critically missed is the finding that the Prescribed Authority backed by evidence referred to therein has recorded in his order, which says that the two sale deeds had to be executed by the landlord in constraining circumstances in favour of Pradeep Kumar Verma and Mahesh Kumar Verma. It has been held by the Prescribed Authority that the two tenants were rich-men and had fought the landlord and his father. Both the father and the son had been beaten up by the tenants. The landlord had made a complaint to the Police, but they did not take any action. The landlord had a threat to his life and property. It was in those circumstances that the property was sold at a lower price to the tenants. It has also been remarked by the Prescribed Authority that the landlord had made a release application in the year 1984 against the tenants, which was rejected. The Prescribed Authority has noticed the order rejecting the release application as well as the police complaint. It has then been remarked by the Prescribed Authority that compelled by the rejection of his efforts to secure release of those shops, adjacent to the demised shop, the landlord was compelled into selling the shops to the tenants. This crucial finding of the Prescribed Authority and the material in support thereof has gone unnoticed by the Appellate Authority. He has not dealt with those findings or reversed the same; let alone for a good reason assigned. 25. This crucial finding of the Prescribed Authority and the material in support thereof has gone unnoticed by the Appellate Authority. He has not dealt with those findings or reversed the same; let alone for a good reason assigned. 25. This Court is of opinion that the finding of the Prescribed Authority has not been demonstrated before this Court also to be bereft of evidence or otherwise illegal. Since the aforesaid finding has not been reversed by the Appellate Authority, and on the basis of relevant material is well founded, it must be held to govern the rights of parties. Even otherwise, the said finding is inevitable to be drawn from the evidence on record and the Appellate Authority has committed a manifest error in ignoring it. In view of the aforesaid error, that is manifest, it has to be held for the added reason, indicated that the Appellate Authority, has gone manifestly wrong in holding that the landlord had no bona fide need to seek release of the demised shop, because he had sold two adjacent shops to the men named, Pradeep Kumar Verma and Mahesh Kumar Verma. 26. In the circumstances, this Court is of opinion that the findings recorded by the Appellate Authority that the landlord has not been able to establish his bona fide need is manifestly illegal and flawed. To the contrary, the finding on the point by the Prescribed Authority is unassailable and deserves to be upheld. 27. So far as the issue of comparative hardship is concerned, the Appellate Authority has held in favour of the tenant falling back upon the provisions of Rule 26(2) of the Rules, framed under the Act. The Appellate Authority has depended on the said Rule to opine that the length of the tenancy is a factor that cannot be ignored. The Appellate Authority has held that the tenancy here being one dating back to the year 1962, there was feeble justification to grant release. This Court must remark at once that the Appellate Authority has interpreted the provisions of Rule 16(2) going by its understanding on the first principles. That is a good way to interpret a statute provided it is not pronounced upon by authority. Surprisingly, the Appellate Authority, who has rendered the decision impugned, as late as the year 2010, has not referred to the several authorities that were by then holding field interpreting the Rule. That is a good way to interpret a statute provided it is not pronounced upon by authority. Surprisingly, the Appellate Authority, who has rendered the decision impugned, as late as the year 2010, has not referred to the several authorities that were by then holding field interpreting the Rule. One principle that has come to stay in interpreting Rule 16(2) or judging the issue of comparative hardship in the context of an application for release under Section 21(1)(a) of the Act, is the predominent importance of the efforts made by the tenant to search for alternative accommodation, pending proceedings for release, or even before that. The words in clause (a) of sub-Rule (2) of Rule 16 framed under the Act, attaching importance to the length of the tenancy, have also fallen for consideration, with the judicial opinion being that the Rule cannot be interpreted in a manner so as to constitute a tenant of very long duration into a virtual landlord or owner. In this connection, reference may be made to the decision of this Court in Munni Lal Gupta v. Vllth Addl. District and Sessions Judge and Ors., 1997 (1) AWC 530 . In Munni Lal Gupta (supra), it was held: “4. It admits of no doubt that according to Clause (a), Sub-rule (2) of Rule 16, greater the period since when the tenant has been carrying on his venture in the building, less the Justification for allowing the application but at the same time, having regard to over-all facts and circumstances of the case, I am pursuaded to the view that the findings recorded by the Authorities under the Act in relation to bona fide requirements of the landlord cannot be assailed and whittled down merely because the Petitioner had been carrying on his business in the shop in question since the year 1977. It is explicitly postulated in Clause (b) Sub-rule (2) of Rule 16 that where the tenant has available with him suitable accommodation to which he can shift his business without the perils of substantial loss, there shall be greater justification for allowing the application. The expression "available with him" in this Sub-rule does not necessarily mean actual physical availability. It is explicitly postulated in Clause (b) Sub-rule (2) of Rule 16 that where the tenant has available with him suitable accommodation to which he can shift his business without the perils of substantial loss, there shall be greater justification for allowing the application. The expression "available with him" in this Sub-rule does not necessarily mean actual physical availability. A suitable alternative accommodation which may become available on an effort being made in that direction is also in the comprehension of the expression and in the facts and circumstances of the case, it has been held that the Petitioner was wanting in earnest efforts in looking for suitable alternative accommodation, notwithstanding the fact that the litigation between the parties had protracted to considerable stretches. In Rajendra Kumar Gupta v. Gopal Kishan and Ors., AIR 1995 All 82 , it has been held by Sudhir Narain, J., and I concur with the view taken therein in that "one of the principles for considering comparative hardships of the parties is to find out as to whether the tenant had made a sincere effort to find out alternative accommodation and had placed materials before the authorities to come to their conclusions that he made such an effort." The fact that earlier applications for release, met the fate of rejection some 10 years ago, could not be projected backward to operate as an obstacle In the way of the release application being allowed as with the passage of time, the situation has undergone considerable change. Indubitably, Landlord Sanjai Gupta did his M.A. after rejection of the earlier applications and his failure to secure employment for himself, lends cogency to his moving the present application.” 28. Again in Kaushal Kumar Gupta v. Bishun Prasad and Ors., 2006 (1) ARC 73 it was held: ”6. The finding of the trial Court that the landlord could ask his son Ram Prakash to assist him in his business of repairing utensils and stove rather fantastic. It has been held by the Supreme Court in Susheela v. A.D.J., 2003 (1) ARC 256, that landlord and every adult member of his family is entitled to have separate business. The other ground taken by the Prescribed Authority was that tenant was doing his business from the shop in dispute since 1935 hence there was no justification to evict him. The other ground taken by the Prescribed Authority was that tenant was doing his business from the shop in dispute since 1935 hence there was no justification to evict him. Mere long possession of tenant is no ground to reject the release application when bonafide need is clearly established. In this regard also reference may be made to the aforesaid authority the Supreme Court in the case of Shushila (supra).” (Emphasis by Court) 29. In a very recent decision in Prakash Chandra v. Ritesh Bhargawa, 2020 (9) ADJ 81 , it was held: “53. So far as comparative hardship is concerned, it is undisputed fact that the petitioner has never attempted to search alternative space for shifting his business and law is very well settled on this point. The Apex Court as well as this Court has repeatedly held that it is necessarily required on the part of tenant to make full endeavour to search alternative accommodation to prove his comparative hardship after receiving copy of release application. In the matter of Rajasthan State Road Transport Corporation (supra), the Court has clearly held that it is required on the part of tenant to make effort for searching alternative accommodation. Again in the matter of Salim Khan (supra), this Court, relying upon the judgments of the Apex Court as well as this Court, was of the view that it is required on the part of petitioner to search accommodation after filing the release application and in the present case there is no dispute that the petitioner had never made any effort to search alternative accommodation. Not only this, the Court has also considered the Rule 16 of the Rules, 1972 and considering the another judgment of Ganga Devi (supra), Court has taken the view that Rule 16 of Rules, 1972 would not come in the rescue of petitioner, in case, petitioner-tenant has not made any effort to search another accommodation. Here in the present case, there is no dispute on the point that petitioner has not made any effort to search alternative accommodation. 54. In the matter of Sarju Prasad (supra), this Court has again taken the same view and held that in case effort was not made for alternative accommodation, this would be sufficient to tilt the balance of comparative hardship against the tenant. 54. In the matter of Sarju Prasad (supra), this Court has again taken the same view and held that in case effort was not made for alternative accommodation, this would be sufficient to tilt the balance of comparative hardship against the tenant. This view was again repeated by this Court in the case of Bachchu Lal (supra) and held that to prove the comparative hardship, it is necessarily required to make effort to search alternative accommodation, which is absolutely missing in the present case. …..” 30. In this case, there is no material to show or a finding recorded by the Appellate Authority that the tenant has made any efforts to search for alternative accommodation. Rather, the report of the Amin Commissioner shows that during inspection he noticed the tenant sitting with a few tools of his trade, but the furnace had not been fired. This would not go to show that the original tenant was utilizing the demised premises for carrying on his trade of a blacksmith. A blacksmith's trade in the absence of a working furnace is unimaginable. The description of the tenant sitting in his shop, though this Court does not intend to record any finding about it, leaves an impression of doubt about the case of the tenant doing business of a blacksmith. 31. Now, about the surviving tenants, or the landlord's son and the widow, there is no material brought on record to show that they are also engaged in the trade of blacksmith. Apparently, the tenant has not discharged his burden on the question of comparative hardship, which again for a principle is required to be proved by the tenant once the landlord establishes his case of bona finde need. It must also be remarked that the Prescribed Authority has held on the question of comparative hardship clearly in favour of the tenant for good reasons assigned, including the tenant's failure to look for alternative accommodation. That finding of the Prescribed Authority is again unassailable, which the Appellate Authority has disturbed on manifestly illegal premises. 32. In the result, this petition succeeds and is allowed. The impugned order passed by the Appellate Authority dated 16.08.2010, to the extent that it rejects the landlord's application under Section 21(1)(a) of the Act, is set aside and that of the Prescribed Authority dated 04.08.2008 restored. There shall be no order as to costs.