- (1.) J. C. Gupta, J. By means of this writ petition, the petitioners have prayed for quashing the concurrent orders dated 17th April, 1996 and 19th January, 1998 of the Prescribed Authority and Appellate Authority respectively, whereby landlord's application for the release of the tenanted accommodation in question has been al lowed.
(2.) THE dispute relates to a portion of residential House No. 112/354, Swaroop Nagar, Kanpur Nagar which consists of two living rooms, one drawing room, one dining room, Store room, Kitchen, Bathroom and Latrine and open terrace with shade in the second floor. Landlord-Respondent No. 3 H. N. Sabbarwal moved an application under Section 21 (1) (a) of the U. P. Act No. 13 of 1972, henceforth to be referred to as 'the Act', alleging therein that the accommodation in occupation of landlord was wholly insufficient and in adequate to cater the need of family mem bers of the landlord and thus the landlord bonafide required additional accommoda tion which requirement could be met only with the release of the accommodation in occupation of tenant. Jitendra A. Bhatt who died during the pendency of release application and his legal heirs the present petitioners were substituted in his place. It was alleged that the landlord's family con sisted of eleven members who were living in the second floor of the aforesaid premise but having regard to the number of family members and status of the family the accommodation in occupation of the landlord was insufficient to meet out their need and, therefore, the tenanted accom modation as urgently and bona fide required to cater the need of family mem bers. THE landlord has in his occupation only three living rooms, two store rooms, verandah, kitchen, bathroom and latrine and also a store room in the second floor which was surrendered by the tenant with the condition that the said room would be used only as a store and not for residential purpose. THE landlord has also one in shed room in the ground floor which is used by his son Dr. Dhirendra a retired veterinary doctor as a 'dog Clinic'. It was further alleged that the tenant on his death left behind his wife, two sons and one daughter. THE daughter also died during the pendency of the case and sons are engaged in their business in Delhi and have shifted and settled there. THErefore, in case application for release is allowed the tenant would not suffer any hardship whereas the landlord's family members on account of paucity of accommodation are living in great stress and facing acute hardship. THE tenant petitioners con tested the release application inter alia on the grounds that after surrender of one room on the second floor the landlord's need, if any, of additional accommodation stood satisfied; that Dr. Dhirendra, son of appellant was living in official flat and second son Mahendra, Additional D. G. of Police, Delhi lives in Delhi where he owns his own flat; that the landlord was in oc cupation of eight rooms and, therefore, they are in no need of any additional ac commodation. It was further, asserted by the tenant petitioners that during the pen dency of the case two rooms set under the occupation of tenant Jobanpura was got vacated and the same is in occupation of the landlord. It was also alleged that the entire ground floor portion is under the tenancy of National Saving Organization, which the landlord could have got released in his favour but instead of getting the same vacated the landlord renewed the tenancy for a further period of three years. The parties adduced evidence and an Advocate Commissioner was also ap pointed for making local inspection. On consideration of evidence and material on record the Prescribed Authority recorded a finding that the landlord's consisted of eight members which increased to 10 during the pendency of litigation. It was also found that after retirement Dr. Dhirendra son of landlord has shifted to his father's disputed house with his wife and two sons who both are married. Km. Miti daughter of other son Mahendra was studying at Kanpur and living in the disputed house with the landlord. The Prescribed Authority fur ther came to the conclusion that one separate room is required for every adult member apart from one drawing room, one dining room, one poojaghar, one guest room, one store room and that some ac commodation is also required for the mar ried daughter who was frequently visiting her family members. While recording find ing on the question of bona fide need in favour of the landlord the Prescribed Authority also took into consideration the status of landlord's family. The question of comparison of hardship of the parties has also been answered in favour of the landlord. The findings recorded by the Prescribed Authority have been affirmed by the Appellate Authority.
(3.) THIS Court has heard Shri S. M. Dayal for the petitioner and Shri P. K. Sinha for the landlord-respondent. Learned Counsel for the petitioners argued before this Court that though both the authorities below have concurrently found that the need of the landlord for additional accommodation is genuine and bona fide but the said finding is vitiated under law being perverse. Ac cording to his submission the Advocate Commissioner had found that the landlord was in occupation of eight rooms but the Prescribed Authority on misread ing of the said report recorded a finding that the landlord has only six rooms avail able with him and his need was for nine rooms. This submission of the learned Counsel for the petitioner on examination of record does not find any force. From the report of the Advocate Commissioner it would appear that the learned Commis sioner has given figure of eight by counting closed passage as a living room. Room No. 5 is a closed Verandah and that has also been described as a room. Room No. 4 was being used as dining room. Room Nos. 6 and 7 were store rooms. In this view of the matter the landlord had with him only three living rooms. The requirement of the landlord was that he required one room for himself another room for his retired son, Dr. Dhirendra and his wife, two rooms for. his grand sons Sameer and Ashish and their wives, another room for Km. Miti, one dining room, pooja ghar, one guest room to accommodate Smt. Kusum, and other family members for their frequent visits and store rooms for keeping, households of his sons and grand sons. Having regard to the number of family members and the extent of accommoda tion inoccupation of the landlord it cannot be said that the need of landlord for addi tional accommodation is not genuine and is whimsical. While assessing the need of the landlord the Courts below have taken into consideration status of landlord and recorded finding in favour of the landlord. Such a consideration by no means can be said to be irrelevant.;