JUDGMENT Sudhir Narain, J.
1. This writ petition is directed against the order of the Prescribed Authority dated 13.11.1998 whereby the application flied by the landlord respondent No. 3 against the petitioner for release of the disputed shop has been allowed and the order of the Appellate Authority dated 20.10.1999 affirming the said order in appeal.
2. Briefly stated the facts are that respondent No. 3 filed application under Section 21 (1) (a) of U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act. 1972 (in short the Act) on the allegation that he has to sons, namely. Mukesh Kumar and Atul Kumar. His son Mukesh Kumar is doing independent business. His younger son. Atul Kumar is unemployed and requires the shop to carry on independent business. The petitioner contested the said application. It was denied that Atul Kumar was unemployed and requires the disputed shop for carrying on business. The Prescribed Authority recorded a finding that the need of respondent No. 3 to set up his son in business in the shop in question is bona fide and genuine and in case the application is rejected, he would suffer a greater hardship- The application was allowed. The petitioner preferred an appeal and the Appellate Authority has dismissed it on 20.10.1999.
3. Learned counsel for the petitioner contended that respondent No. 3 is carrying on business and his son Atul Kumar is assisting him in the business and, therefore, the need of respondent No. 3 to establish his son cannot be treated as bona fide. The facts, as found by both the authorities, are that respondent No. 3 has a shop in Mohalla Sanwaldas. He is carrying on cloth business in the said shop. His elder son Mukesh Kumar is carrying on independent business and has a medical shop. His second son, Atul Kumar, passed B.Com examination. He is unemployed but as there is no other business he is assisting his father in the business.
4. The petitioner suggested that Atul Kumar is carrying on lending business but he did not lead any cogent evidence to prove this fact. It was also suggested that he was carrying cloth and Sarafa business but it was also not established. One of the arguments raised was that respondent No. 3 has a cane crusher in village Mandawali, Pargana Najibabad and his son Atul Kumar is looking after that crushing work. Respondent No. 3 filed a partnership deed which proved that there are four partners, namely. Shiv Charan Das, Satendra Kumar, Rajendra Kumar (respondent No. 3) and Virendra Kumar. This firm has cane crusher in the name of M/s. Agarwal Sugar Factory. Respondent No. 3 is not exclusive owner of that factory. This work is done in partnership and there are other three partners. It was found that Atul Kumar has no right to carry on the said crushing business in his own right.
5. It was further suggested that one Chandra Prakash was tenant and he vacated the accommodation in his tenancy and it was available to the respondent No. 3 but it was not established. It was further argued that one Yogendra Kumar Bishnoi was a tenant but the shop fell vacant. It has been found that it is not proved that there is any existing shop which can be occupied by Atul Kumar to carry on business. The petitioner further suggested some of the ancestral properties of respondent No. 3. Admittedly Suit No. 427 of 1982 for partition is pending. In absence of any evidence that there is any suitable shop in exclusive possession of respondent No. 3, it will not be available for Atul Kumar to carry on business. These are questions of fact which have been discussed by both the authorities and they have found that there is no vacant suitable accommodation to establish Atul Kumar in independent business.
6. Learned counsel for the petitioner vehemently urged that Atul Kumar is assisting his father in business and this has been established by producing the photographs and the Appellate Authority also found that he was found in the shop of his father. It is contended that he is assisting his father in business and he does not require the disputed shop for carrying on business. The mere fact that his son is assisting his father in business as he is unemployed, will not establish that his son will not carry on independent business. One of the sons of respondent No. 3, namely, Mukesh Kumar is carrying on Independent business and the version of respondent that his second son Atul Kumar will also carry on independent business has been found to be correct.
7. In Smt. Ram Kubai v. Hajari Mal Dholak Chand, AIR 1999 SC 3089, where the landlady set up the case that she requires the premises to set up one of her sons in grocery business but it was found that he subsequently started the work of construction contractor, the Court observed that it does not militate against his intention to start the family business. It was observed :
"It is correct that Bhikhchand was unemployed on the date of filing of the suit but he could not be expected to idle away the time by remaining unemployed till the case is finally decided. It has already taken about 25 years. Therefore, we do not think that taking up contract work in the meanwhile will militate his carrying on business of Kirana which is his family business which was carried on by his father and is being carried on by his brothers."
8. In N. S. Datta and others u. VIIth Additional, District Judge, Allahabad and others, 1984 (1) ARC 113, where release application was filed on the ground that landlord's younger son wants to start a Three Star Hotel in the accommodation in dispute. It was held that mere fact that the son is assisting in jewellery shop of his father as a stop gap measure will not affect the claim.
9. The expression of the words "bona fide required" under Section 21 (1) (a) of the Act has been judicially Interpreted in various decisions of the Supreme Court and this Court vide Mattu Lal v. Radhey Lal, AIR 1974 SC 1596 : Bega Begum and others v. Abdu1 Ahad Khan and others. AIR 1979 SC 272 ; Ajit Prasad v. IVth Additional District Judge, Meerut, 1979 ARC 73 ; Jayant Kumar v. Prescribed Authority and others, 1979 UPRCC 132. The mere desire without a necessity cannot be treated as bona fide but on the other hand, it is also not necessary that unless there is absolute or extreme necessity, the need cannot be treated as bona fide. The word "bona fide" means genuinely, sincerely, i.e., in good faith in contradiction to mala Jlde. The requirement of an accommodation is not bona fide if it is sought for ulterior purposes on fanciful whim but once it is established that the landlord requires the accommodation for the purpose which he alleges and there is no ulterior motive to evict the tenant, the requirement should be treated as bona fide.
10. In Chakresh Chand Jain v. VIIth Additional District Judge and others, 1991 (1) ARC 41, where the landlord had filed application to release the godown as he required it for a motor garage after purchasing the shop, it was held that the need was bona fide and the contention of the tenant that open space can be used by the landlord was repelled. In Chhetriya Sri Gandhi Ashram, Meerut v. IInd Additional District Judge, Meerut and others. 1998 (2) ARC 373, it was found on the facts that the need alleged by the landlord to set up a factory for manufacturing various articles from cement was not established. In Shiv Sarup Gupta v. Dr. Mahesh Chand Gupta, 1999 (6) SCC 222, the Apex Court, upheld the need of the doctor-land lord bona fide on the ground that he requires the space for family including growing grand-children and also for visiting patients. It depends upon the facts of each case. In Mattulal v. Radhe Lal, AIR 1974 SC 1596, it was observed mere assertion on the part of landlord that he requires the non-residential accommodation in the occupation of the tenant for the purpose of starting and continuing his own business is not decisive. It is for the Court to determine the truth of the assertion and also whether it is bona fide. The test which has to be applied must be an objective test and not a subjective one. On the facts in the present case, both the authorities have recorded finding that Atul Kumar, son of respondent No. 3, requires the disputed shop for carrying on Independent business and I do not find any legal infirmity In the finding.
11. Learned counsel for the petitioner then contended that the authorities below have not properly considered the comparative hardship while releasing disputed shop in favour of respondent No. 3. He has placed reliance upon the decision Rameshwar Kumar v. IInd Additional District Judge, Muzaffarnagar and another, 1990 (1) ARC 103, wherein it was held that it is the duty of the Prescribed Authority to consider the comparative hardship keeping in view the guidelines laid down in Rule 16 (2) of U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules. 1972. This decision has been explained by a Division Bench of this Court in Shiv Dev Raj v. Additional District Judge and others, 1996 ID ARC 559, wherein it was held that the rule requires that the Prescribed Authority "shall have regard to" which means it is only a guideline while taking Into consideration the need of the landlord and determining the comparative hardship of the landlord and the tenant and the authorities are to determine their hardship keeping In view the facts and circumstances of each case.
12. In Bishan Chand v. Additional District Judge, 1982 (1) ARC 440, the Apex Court held that where hardships of the landlord and tenant are found to be equal unless additional circumstances justifying the release order in favour of the landlord exists, the order of release should not be passed in his favour. It has been found that the son of the landlord having passed B.Com examination is unemployed. His elder brother has independent business and the father is also carrying on independent business. He also requires a shop to carry on independent business. On the other hand, the petitioner is Goldsmith and carrying on manufacturing and sale of ornaments for the last many years. The burden was upon him also to establish as to what effort he did make to find out alternative accommodation. The application under Section 21 of the Act was filed by respondent No. 3 in the year 1992 and almost five years have already elapsed. He has not shown as to what efforts did he make to find alternative accommodation. One of the test to consider comparative hardship is to find out as to whether the tenant has made efforts to find out alternative accommodation vide Hark Singh v. IVth Additional District Judge, 1999 (1) ARC 365 ; Kuldip Kumar v. IXth Additional District Judge and others, 1999 (1) ARC 371. The son of respondent No. 3 Is unemployed while the petitioner is carrying on business for the last more than 25 years where he must have earned the amount and could have made efforts to find out alternative accommodation. In Bega Begum v. Abdul Ahad Khan, AIR 1979 SC 272, it was observed that the tenant will have to be ousted from the house if a decree for eviction is passed but such an event will happen whenever a decree for eviction is passed and it was fully in contemplation of the Legislature when Section 11 (1) (h) of J and K Houses and Shops Rent Control Act was introduced. In deciding the extent of hardship that may be caused to one party or the other, in the case the decree for eviction is passed or refused, each party has to prove its relative advantages and disadvantages and the entire onus cannot be thrown on the plaintiff to prove that lesser disadvantages will he suffered by the defendant and that they were remedial.
13. In view of the above. I do not find any merit in the writ petition. It is accordingly dismissed.