- (1.) BY means of this petition, moved under Article 226 read with 227 of Constitution of India, the petitioners (tenants) have sought writ in the nature of certiorari quashing order dated 24-01-1995, passed by Prescribed Author ity and order dated 05-05-2004, passed by the Respondent No. 1, whereby the application of the landlord (respondent No. 3) for release of ac commodation in question was allowed by the Prescribed Authority and appeal arising thereof is dismissed by the ap pellate court.
(2.) BRIEF facts of the case, as nar rated in the writ petition are that origi nally one Tehsin AH Khan was owner and landlord of House No. 12, Mohalla Mahigiran, Roorkee. In 1978, the re spondent No. 3 purchased said prop erty which was already in occupation of the tenants. Initially, the respondent no. 3 (landlady) got vacated part of first and second floor of the house and one shop in the ground floor from the other tenants in said portion of the house and got physically occupied herself in that part of the property. The respond ent' no. 3 thereafter moved application for release of the remaining part of the house in occupation of present tenants (petitioners and respondent no. 4) on the ground that the accommodation in her possession is insufficient for her family also that she has to establish her son in business for which she needs also the shop in the ground floor. The tenants contested the petition before the Prescribed Authority and filed their written statement in which they denied the bonafide need of the landlady and claimed greater comparative hardship in their favour. The Prescribed Author ity after considering evidence adduced by the parties and hearing them al lowed the release application (PA. case No. 01 of 1993) on 24-01-1995. Ag grieved by which the tenants preferred Rent Control Appeal No. 10 of 1995 which was dismissed by the respondent no. 1. Hence this petition on the ground that the authorities below have erred in law in allowing the application for release of house in question. It is also alleged in the writ petition that the landlord has not proved bonafide need of the accommodation in question. It is further alleged that even if explanation I to Section 21 (1) of U. P Act 13 of 1972 is treated to have been attracted the respondent no. 3 was required to prove bonafide need as well as com parative hardship in his favour. Respondent No. 3 (landlady) has-filed her counter affidavit wherein it is admitted that she purchased the house in the year 1978 and the peti tioners and respondent no. 4 are her tenants. It has been stated in the coun ter affidavit that family of landlady consists of six members including her hus band and four children. The respond ent No. 4 who is brother of petitioners constructed his own house in the city which is admitted to the petitioners. It is further stated that petitioner no. 1 Matloob too has constructed house No. 27/1 (New Number 34) in Mohalla Purani Tehsil Roorkee and his name is also recorded in Municipal record (copy of Municipal assessment Annexure-C. A II ). Answering respondent has stated that she not only proved her bonafide need of accommodation in question but also established greater compara tive hardship before authorities below. It is also stated in the counter affidavit that both the sons of respondent no. 3 are unemployed and are of "marriage able age due to which her need of the accommodation in question is genuine. Lastly, it is stated that the High Court in its exercise of power under Article 226 of Constitution of India cannot upset the findings of courts below un less the same are perverse. In parawise reply it has also been stated that the alleged shop which was earlier got va cated is in fact a cowshed and is being used for that purpose. Defending the impugned orders, it is stated that the findings of the Prescribed Authority and appellate court are correct and applica tion for spot inspection by Commis sioner, moved by the petitioners was also rightly rejected. I heard counsel for the parties and perused the record.
(3.) ADMITTEDLY, petitioners are ten ants with respondent No. 4 and the re spondent No. 3 is their landlady. It is also true that the Prescribed Authority found bonafide need of the landlady and also greater hardship in her favour and directed release of accommodation in question. It is also admitted that pe titioners appeal is also dismissed. This Court has to examine if there is illegal ity in the impugned orders or any per versity in findings contained therein. Learned counsel for the petition ers submitted that learned lower appel late court has erred in law by holding -that once the explanation I to Section 21 (1) of U. P. Urban Buildings (Regu lation of Letting, Rent and Eviction) Act 1972, gets attracted there is no need to see the bonafide need of the landlord. I agree that said part of observation in the impugned order of the appellate court, is against the law (reliance placed in Kanta Vs. Add/. District Judge 1979 All. L. J. 1303) but that by itself is not sufficient to quash the impugned orders for the reason that from the evi dence on record, bonafide need of the landlord is clearly established. Though the learned appellate court has ob served at one place of its judgment as above, but in para 16 of the judgment, the said court has discussed how it found need of the landlord as genuine and bonafide. Both the courts found that the family members of the petition ers including petitioner No. 1, have constructed their houses in the city as such, their objections cannot be heard in view of the Explanation I to Section 21 (1) of aforesaid Act. (It is pertinent to mention here that under Explanation I of Section 21 (1), where in a residential building, one of the members of the family living together, gets constructed his house in the city or acquires it, ob jections of the tenants cannot be enter tained ).;