R.M.Sahai, J. - (1.) PRIMARILY success or failure of this landlord's petition, arising out of an application for release of accommodation in dispute filed under section 21(1)(a) of U.P. Act XIII of 1972, shall no doubt depend on correctness or otherwise of finding recording by appellate authority but it shall also have to be examined if this Court should interfere in its extraordinary jurisdiction even if no injustice is being done by the impugned order. True, house No. D -38/63, Hauz Katora, Varanasi, having thirteen rooms in occupation of three tenants came in exclusive share of petitioner on partition by a compromise decree amongst four brothers. May be because petitioner is an advocate or he was already in occupation of one of the rooms in ground floor yet the application could be allowed only if in the first instance it was found that the need of petitioner was bona fide and genuine and then finally on a comparison of respective needs of the two need of petitioner was greater and more pressing.
(2.) CLAIM of petitioner was founded both on necessity to house eight members of family with five school going children and professional requirement of chamber in ground floor with appendages of a room for clerk, consulting room etc. Both the prescribed and appellate authority held the need to be bona fide. And rightly as petitioner has no other house. Requirement of rooms at ground floor for chamber, clerk etc. could not be validly contested. Nor was there any merit in claim of opposite party that petitioner could live with his brother and it was rightly repelled. After all a landlord having no other house is not only justified but has a right to seek release of accommodation for his personal use either residential or commercial or professional. All the same uprooting of tenant is of no less consequence. May be while considering application for release availability of alternative accommodation to tenant is not relevant consideration Kamil Khan v. IIIrd Addl. District Judge 1982 Allahabad Rent Cases 783 and the authorities should not be oblivious of social status and requirement of landlord Smt. Kamila Ahiya v. IV Addl. District Judge 1981 U.P. Rent Control Cases 199 yet the hardship to tenant cannot be overlooked or undermined. Consequently even after finding bonafide need of landlord the comparative hardship has to be analysed and even if the necessity of both is found at par it would not result in application being allowed. Additional circumstances must justify release. How comparison has to be done in an application for release on personal requirement has been attempted to be guided by various sub -clauses of rule 16 framed under Act XIII of 1972, sub -rule (d) of rule 16 reads as under: Where the tenant's needs would be adequately met by leaving with him a part of the building under tenancy and the landlord's needs would be served by releasing the other part, the prescribed authority shall release only the latter part of building. It is this aspect of rule which has come in full play in this case. It has been found and is not disputed that eight rooms in occupation of one Durga Das, brother of opposite party and tenant in the house have been released in favour of petitioner, and the order releasing it has become final. Petitioner obtained possession as well. Release application against another tenant Shiv Kali was also allowed and the order became final as the appeal by tenant was dismissed as barred by time and presumably no petition has been filed in this Court. It is further not disputed that opposite party is tenant of only three rooms. Although he claimed lour rooms, three on first floor and one in ground floor but there is no such finding in his favour. On the contrary learned counsel for petitioner produced certified copy of order in Civil Revision No. 164 of 1977 between parties in which it was held that he was tenant of three rooms only, From certified copy of sketch map produced by learned counsel for petitioner it is further clear that there are seven rooms in first floor excluding latrine and open space. Out of this two rooms in the back, one in west and other in North adjacent to each other are in tenancy of the opposite party. In the ground floor there are six rooms excluding latrine, three varandah on three sides of court -yard, passage and a closed well. Out of it one room in the back in west is in tenancy of opposite party. In front of it there is open land. Frontage of the house is in East. And two of the rooms are facing lane. In front of one of the rooms on extreme south is raised open land (Chabutra). Passage appear to be common. Stairs for going on first floor is from one of Varandahs in the west in front of opposite party's room.
(3.) PRESCRIBED authority was seized of all the three applications against three tenants. Against Durga Das, who was in possession of eight rooms, the application was allowed as he had constructed his own house. Shiv Kali appears to have been in possession of one room. That was also released. As regards opposite party he was of opinion that although need of both was genuine the room in possession of opposite party at ground floor, should be released (Finding is not backed by any reason. It was held that two rooms at first floor were sufficient fop residential purposes. Neither of these findings are backed by any reason, He rejected the claim of petitioner that opposite party could shift to Bhandari Lane as he was only carrying on his business of Photography there and it was not sufficient for residential purposes. In appeal this was reversed. It was held that all the three rooms were needed for residential purpose. And the eight rooms of Durga Das released in favour of petitioner were sufficient for his requirement.;