S.D. Agarwala, J.This is a petition under Article 226 of the Constitution of India arising out of proceedings for release under Section 21(1)(a) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, (hereinafter referred to as the) in respect of the ground floor of the house No. 47/132, Hatia Bartan Bazar, Kanpur which is used as a shop. Manbodhan, respondent No. 3 is the tenant and the petitioner Ajay Kumar Tandon is the landlord. The rent of the shop is Rs. 40/- per mensem. The tenant is carrying on the business of utensils in the premises. The position is that the first floor of the house is occupied by the landlord for residential purposes and the property in dispute is the ground floor which was let out to Manbodhan and in it, he is carrying on his business.

2. The petitioner filed an application for release of the ground floor portion on the ground of his personal need. The case set up by the petitioner was that his father expired on 21th May, 1975. At that time the petitioner was reading in the Intermediate class. In due course of time, the petitioner has graduated but he is still unemployed. Since he is unemployed, the case set up by him was that he wants to carry on the business of utensils in the shop in question for the purpose of his livelihood. At the time when the application was made, the petitioner was not even married and his further case is that the petitioner has also grown of marriageable age but unless he is suitably engaged, matrimonial talks cannot be started and suitable offers cannot come.

3. The tenant disputed the allegations made in the application for release and urged that the need of the petitioner-landlord was not bonafide and genuine.

4. The Prescribed Authority by its judgment dated 20th May, 1982 allowed the release application that the need of the petitioner was bonafide and genuine and further held that the tenant has a big and profitable business. He can find out any other suitable accommodation even on higher rent and consequently, greater hardship would be caused to the landlord in case his application for release is rejected.

5. Aggrieved by this judgment dated 20th May, 1982, the tenant filed an appeal under Section 22 of the. The appeal was allowed by the Appellate Authority and the judgment of Prescribed Authority was set aside by the judgment dated 23rd February, 1983. The Appellate Authority confirmed the findings recorded by the Prescribed Authority that the need of the petitioner-landlord was bonafide and genuine, the Appellate Authority was, however, of the view that greater hardship would be caused to the tenant in case the release application is allowed and, consequently, the release application was dismissed by it.

6. Aggrieved by the decision dated 23rd February, 1983, the present petition has been filed by the petitioner-landlord.

7. During the pendency of the petition, the petitioner-landlord got married and took up a job in the Vikas Pradhikaran, Lucknow Corporation, Lucknow. This was brought to the notice of this Court by means of a Supplementary affidavit filed on behalf of the tenant.

8. I have heard learned counsel for the parties.

9. Learned counsel for the petitioner has contended that both the Prescribed Authority and the Appellate Authority having found that the need of the petitioner-landlord was bonafide and genuine the release application of the petitioner should have been allowed. The finding recorded by the Appellate Authority to the effect that greater hardship would be caused to the tenant in case the release application is allowed, is a finding vitiated in law and it is based on irrelevant considerations.

10. Shri S.C. Tripathi, learned counsel for the respondent-tenant has, however, urged that the finding in regard to the hardship by the Appellate Authority is a finding of fact and as such it cannot be disturbed in petition under Article 226 of the Constitution of India. His second submission is that in view of the subsequent events in respect of which an affidavit has been filed in this Court, the release application was rightly rejected by the Appellate Authority and it has been further urged that in any case the matter may be remanded to the Appellate Authority in case the Court comes to the conclusion that the finding in regard to the comparative hardship was vitiated in law.

11. It is relevant to mention here that the Prescribed Authority recorded a clear finding that the need of the landlord was bonafide and genuine. In regard to the comparative hardship, it found as follows :-

"The O.P. has himself stated on oath that he has big business, he can find out any other suitable accommodation even on higher rent. The opposite party has not filed other evidence except his counter affidavit. In the light of above discussion and evidence on the record, I come to the conclusion that the petitioner shall suffer greater hardship in case the release petition is rejected in comparison with that of the opposite party."

12. The Appellate Authority on a consideration of the effect of Rule 16(2) sub-clause (a) or the rules framed under the set aside that finding recorded by the Prescribed Authority in regard to the comparative hardship. Rule 16(2)(a) reads as follows :-

"(2) While considering an application for release under clause (s) of sub-section (1) of the Section 21 in respect of a building let for purposes of any business, the Prescribed Authority shall also have regard to as such facts as the following :-

(a) the greater the period since when the tenant opposite party, or the original tenant whose heir the opposite party is, has been carrying on his business in that building, the less the justification for allowing the application.

(b) .........................

(c) .........................

13. Rule 16(2)(a) which has been quoted above is only a guideline. It prescribes that when an authority is considering a release application, the period since when the tenant opposite party is occupying a particular property shall be considered when allowing an application and it has been further mentioned that there would be less justification for allowing an application where a tenant opposite party has been occupying the accommodation for a long period. This clause does not lay down that merely because a tenant occupies a property for a long period, no lease application can be allowed in favour of the landlord. This is not the intention of clause 2(a). The Appellate Authority has recorded a finding in regard to the hardship in favour of the tenant only on the ground that since the tenant has been occupying the property for more than 25 years, and consequently, greater hardship would be caused to him. Thus, in my opinion is not a correct approach. If this approach is taken, then all the old tenants of business premises can never be evicted under the provisions of the even when the bonafide need of the landlord is established.

14. In the instant case, the only factor established by the tenant is that he has been occupying the property for more than 25 years. This by itself, in my opinion is, not enough for dismissing a release application. The Appellate Authority has further observed that merely because a tenant was occupying a property for the last 25 years, he has earned a good will in respect of the disputed shop. Mere occupation by a tenant of a business premises for a long number of years does not by itself create a good will in favour of the tenant. The question of goodwill has to be considered on the basis of the facts on record.

15. In the instant case except for an allegation in the written statement that the tenant has acquired a goodwill, no evidence has been produced as has been found by the Prescribed Authority and it has not been disputed. In the circumstances, in my opinion, the basis on which the finding in regard to the comparative hardship has been set aside by the Appellate Authority is a basis not relevant in law. The finding is based wholly on irrelevant consideration. On the other hand once the Prescribed Authority had found that the tenant was in a portion to acquire any other property, it was right in holding that greater hardship would be caused to the landlord in case the release application is not allowed.

16. The Appellate Authority has also relied on another circumstances, namely, that the landlord has not established that there is any other accommodation available to the tenant to shift his business. The Act does not contemplate that in every case where an application for release is made, the landlord has to further establish that the tenant has an alternative accommodation and then only his release application can be allowed. The entire approach in this regard also of the Appellate Authority is wholly erroneous. A wrong burden has been placed on the landlord and, thereafter, erroneous finding has been arrived on the basis of this wrong approach.

17. Even if there is no alternative accommodation available then too once the need of the landlord is found to be bonafide and genuine and it is found that the tenant is in a position to shift to any other accommodation, the landlord is entitled to release of the property.

18. In view of the above, I am of the opinion that the finding in regard to comparative hardship is based on irrelevant considerations and is vitiated in law. The submission made by the learned counsel for the petitioner in this regard is well founded. If a finding in regard to comparative hardship is based on irrelevant considerations then such a finding can be set aside under Article 226 of the Constitution of India.

19. The next question to be considered is whether the case should be remanded to the Appellate Authority for decision afresh on the question of comparative hardship. So far as the question of bonafide need is concerned, both the Prescribed Authority as well as the Appellate Authority have found that the need of the landlord is bonafide and genuine. I do not find any infirmity in this finding. This finding is, accordingly, confirmed.

20. Since certain subsequent events have come on the record after the filing of the petition and which are disputed, but are very relevant for the decision on the question of comparative hardship, I think it proper that the matter be remanded to the Appellate Authority for decision afresh on this question alone.

21. An affidavit was filed by the tenant in this Court on 28th July, 1988, in which it was stated that the landlord has acquired a dwelling house at Lucknow in the name of his wife and that he is now permanently employed in the Lucknow Development Authority. A supplementary affidavit has also been filed by the landlord on 18th August, 1988, wherein it has been admitted that he is working in the Lucknow Development Authority, but his case is that he is working only on temporary basis at the rate of Rs. 21/- per day. It has been further stated that he as well as his wife had to take up a job, as it was not possible to meet the day-to-day expenses. A supplementary counter affidavit thereafter was filed by the tenant again. In paragraph 6 of the supplementary counter affidavit, it has been stated by the tenant that the landlord is employed in the Computer Vibhag in Lucknow Development Authority. He is in service for the last two years and it is denied that he is working on daily wages. He has further submitted that the wife of the landlord is working in the United Commercial Bank, Hazaratganj Branch, Halwasai Market, Lucknow, on the post of an Accountant and is getting Rs. 2,400/- per month as her salary.

22. The above mentioned facts, as stated in the affidavit, supplementary affidavit and the supplementary counter affidavit, being disputed and having a serious bearing on the question of hardship, I think it necessary in the interests of justice that the case be remanded to the Appellate Authority for decision afresh on the question of comparative hardship. The submission, therefore, made on behalf of the tenant, that the matter should be remanded, is a correct submission in my opinion.

23. The petition is accordingly, allowed. The order dated 23rd February, 1983, is quashed and the matter is remanded to the Appellate Authority for decision afresh in the light of the observation made above on the question of comparative hardship only. The Appellate Authority shall decide the matter within a period of three months from the date of certified copy of this order is produced before it. Parties are directed to bear their own costs.