SANJAY Misra, J. - (1.) This writ petition has been made by the tenant who seeks quashing of the judgment and orders of the Courts below whereby the tenanted portion has been released in favour of the landlady in proceedings under Section 21 (1) (a) of the U. P. Act No. XIII of 1972.
(2.) THE Prescribed Authority while considering the bona fide need of the landlady found that she had 10 members in her family whose need has to been seen. They are living in the house of Sampati Devi who is the landlady's husband's maternal grand- mother. The accommodation consists of two rooms and it was found to be insufficient. The need of the landlady was held to be bona fide. The Prescribed Authority considered the plea of the tenant that one portion of the house was in the tenancy of one Tejinder Singh and in a SCC Suit No. 34 of 1988 the said portion was made available to the landlady by virtue of a compromise arrived at between them and in proceedings under Section 16 of the Act it was released in her favour for commercial purposes. It found that in the said portion the landlady's son Vinod Kumar is doing business under the name and style of Gautam Tent House and hence the portion in question is required by her for residence. On the issue of comparative hardship it has been found that the tenant's son has acquired a house in the city and the family is also residing there, hence if the tenanted portion is released it would not cause hardship to the tenant and if it is not released then hardship would be of the landlady. In the appeal filed by the tenant the appellate Court formulated seven questions to be decided. It found the need of the landlady to be bona fide which had not been adequately met even after another portion in the tenancy of one Tejinder Singh was made available to her for commercial purposes. A finding was recorded that the landlady's husband had not inherited the house of his maternal grand- mother and they are living in the said house with the permission of her husband's maternal grand- mother and after her demise, with the permission of his mother. She is in occupation of only two rooms in the said house. On the question of comparative hardship the appellate Court found that the tenant's son had acquired a house in the same city and the entire family was also living there hence it recorded its finding in favour of the landlady. Learned Counsel for the petitioner Sri M. K. Gupta has contended that affidavits being paper Nos. 190ga, 192ga and 193ga were filed on behalf of the landlady to which he was not given any opportunity for rebuttal. His request for time was refused by the order dated 4-12-1996. As such the impugned orders having been passed by placing reliance on them is liable to be set aside. He has relied upon decision of this Court in the case of Kalpnath Pandey v. XI Addl. District Judge, reported in 1993 (2) ARC 67, and argued that an opportunity for reply should have been given. Citing a decision of this Court in the case of Yogendra Nath Jain v. III Addl. District Judge, Meerut, reported in 1998 (1) JCLR 827 (All) : 1998 (1) ARC 444, he has submitted that for applicability of the Explanation of Section 21 (1) the word 'or' has to be read as 'and' and therefore, both the conditions provided therein have to be shown to exit. His submission is that in the present case the Courts below have committed an illegality by holding that the said Explanation was fully attracted to the facts and circumstances. For this very submission he has also referred to the decisions of the Hon'ble Supreme Court reported in 1985 (2) ARC 85 and 1995 (1) ARC 220.
(3.) SRI R. C. Singh learned Counsel for the respondent has submitted that once the provisions of the Explanation in Section 21 (1) is attracted the objection of a tenant against a release application is not maintainable. He states that the Courts below have rightly concluded that the son of the tenant having acquired a house in the city the comparative hardship was decided in favour of the landlady. He has placed reliance on the decisions in the case of Wajid Ali v. XII Addl. District Judge, reported in 1994 (1) ARC 502, and in the case of Ram Prakash v. II Addl. District Judge, reported in 1990 (1) ARC 329. He has further submitted that when concurrent findings of fact have been recorded by both the Courts below then this Court would not interfere in the same in a petition under Article 226 of the Constitution of India. In so far as the question of applicability of the provisions of the Explanation to Section 21 (1) in the present case is concerned the trial Court has not rejected the objection of the petitioner on that ground. It has proceeded to decide the objection on its merits and has concluded on the basis of evidence that the son of the petitioner who was normally residing with him from the beginning of the tenancy had acquired a house in the city after being employed. It has also found that the petitioner and his other family members have given the address of this other house for various purposes such as the gas connection No. 2538 in the name of the petitioner, Sudhir Kumar a son of the petitioner has given this address in his scooter driving licence, the wife of his other son Balram is a teacher in H. P. Academy has given her address as this house, a daughter of his son Sudhir who studies in Nehru Inter College has also given the same address, the petitioner and his family members are shown in the voters list as residents of this house. The petitioner had failed to adduce any evidence to controvert the said facts. The Courts below, therefore, found that the petitioner and his family members were also living in the other house and as such had an accommodation in the city under their occupation and under the ownership of one son. Therefore, since the objection of the petitioner was entertained and considered on its own merits, the contention of learned Counsel for the petitioner regarding non- applicability of the said provision looses its significance and in fact such a question does not at all arise for consideration in this writ petition.;