R.M.Sahai, J. - (1.) ON 27th December, 1968 late Janki Das purchased premises No. 44/45, Misri Bazar, Kanpur. On 28th September, 1972 he filed an application under Section 21(1)(a) of U.P. Act XIII of 1972 for release of the accommodation as it was needed by him and his sons for their personal use. It was mentioned that they were residing in a tenanted accommodation No. 44/55 Jawahar Nagar, Kanpur. During pendency of the application the landlord offered the tenanted accommodation in their possession to the Petitioner. He, however, died during pendency of the proceedings before the Prescribed Authority and the application was dismissed not on consideration of bonafide need or requirement by Prescribed Authority but because after death of Janki Das there was nothing on record to show that his three married daughters had relinquished their shares. It was further held that the need of the applicant was not bonafide as Janki Das in the application for release had not mentioned that Manohar Lal, one of his sons, was residing separately in a tenanted accommodation. And as landlord has not been threatened with eviction his need could not be bonafide and genuine and in case the application was allowed the Petitioner would suffer greater hardship. In appeal it was held that the landlord had no other accommodation and his need for the house which was purchased by him was bonafide and genuine. On comparative hardship however, he held that in case the application was allowed the tenant was likely to suffer greater hardship, obviously, because the landlord was residing in a tenanted accommodation. But he allowed the application as landlord was willing to offer an alternative accommodation in his possession. In order to safeguard the interest of tenant the appellate authority further directed that he shall not be evicted so long the alternative accommodation that is the accommodation in occupation of landlord was not allotted in his favour. Aggrieved by this order both tenant and landlord have come to this Court.
(2.) FINDING recorded by appellate authority both on bonafide need and comparative hardship has been assailed on behalf of tenant. It is urged that as landlord was residing in a tenanted accommodation his application under Section 21(1)(a) was not maintainable and in any case his need could not be said to be genuine and bonafide. Emphasis has been laid on the word 'bonafide required' in Sub -clause (a) to Sub -section (1) of Section 21 of the Act. Learned Counsel urged that so long there was no threat to landlord's eviction his application could not be considered to be bonafide. It has been found and is not disputed that the accommodation in which landlord is residing consists of only one room. His family consists of five sons, wife, and one unmarried daughter. One of the sons Manohar Lal is living in a tenanted accommodation. Even then the accommodation of one room for a family of seven members, excluding Janki Das, since he is dead, cannot be considered to be sufficient. The appellate authority, therefore, did not commit any error in recording finding that house in dispute was bonafide required by the landlord for his personal use. The argument of the learned Counsel for Petitioner that as landlord was already residing in a tenanted accommodation his application under Section 21(1)(a) has to be rejected is without any merit. The law debars a landlord from moving an application before three years from the date of purchase of a house. It is sufficient safeguard so far as the tenant is concerned. It should be deemed that Legislature assumed that in a case where the landlord purchased a house and he is not possessed of any other house then his entitlement to file an application under Section 21(1)(a) cannot be curtailed. The landlord who does not possess any other house is prima -facie entitled to move an application under Section 21(1)(a) for release of an accommodation. It is another thing that it may be rejected as need of tenant is greater than that of landlord. But it cannot be rejected merely because he is residing in a tenanted accommodation. Apart from it on fact as pointed out earlier the accommodation held by landlord cannot be held to be sufficient to house his family members. Although while recording this finding in favour of tenant the appellate authority did not advert to any circumstance except that he shall be thrown on street yet it is not necessary to comment on it as the landlord has not challenged it even though he has filed separate petition. Learned Counsel for Petitioner vehemently argued that appellate authority having found that Petitioner shall suffer greater hardship committed manifest error of law in not dismissing the application. According to him the direction by appellate authority that the tenanted accommodation of landlord shall be allotted to Petitioner and he shall vacate the premises, thereafter was illegal and contrary to provisions of U.P. Act XIII of 1972. He urged that the Act does not contemplate such order either by Prescribed Authority or appellate authority as the landlord was not the owner of the premises in which he was in possession. It is not in his hand to get it allotted in favour of tenant and, therefore, the appellate authority should not have directed and passed an order which is contrary to law. May be so but as observed earlier by the order passed by appellate authority the tenant does not appear to surfer any hardship. The order is eminently just and even if it is assumed that it suffers from any illegality or any error of law substantial justice having been done between parties it is not a fit case for exercise of extraordinary jurisdiction under Article 226 of the Constitution of India.
(3.) LEARNED Counsel also raised a technical objection that after the death of Janki Das he was survived by five sons, and four daughters, three of whom are married and as married daughters are heirs under Hindu Law the application under Section 21(1)(a) could not have been proceeded without their impleadment. Although from what has been stated above it is not necessary to decide this controversy, yet Sub -section (7) of Section 21 appears to be a complete answer to the arguments raised on behalf of Petitioner. It reads as under: Where during pendency of an application under Clause (a) of Sub -section (1), the landlord dies, his legal representatives shall be entitled to prosecute such application further on basis of their own need in substitution of the deceased. Apparently, it is an enabling provision. Normally, with the death of landlord the application under Section 21(1)(a) could have come to an end, but for this specific provision made in Sub -section (7). Instead of multiplying the proceedings and asking the heirs to file an application afresh the Legislature provides that in case of death of landlord legal representatives shall be entitled to prosecute such application on basis of their own need. The word, 'legal representatives' read alongwith the word, 'on basis of their own need' leave no room for doubt that the intention is clear that application can be pursued even by one of the legal representatives if only he wanted the accommodation for his own need. The argument based on Sub -rule (2) of Rule 15 has absolutely no relevance for purposes of Sub -section (7). Moreover, from Annexure IV filed alongwith the writ petition it appears all the three married daughters moved an application before the Prescribed Authority that whatever share they had in the house they had been given at the time of their marriage. It was stated that they had no share in the house and they may not be treated as legal representatives of the deceased for purposes of the house in dispute. In view of this admission which obviously is against their own interest it cannot be said that their non impleadment was in any way fatal to the maintenance of the application.;