- (1.) ANJANI Kumar, J. This writ petition filed by the petitioner under Article 226 of the Constitution of India challenged the order passed by the appellate authority under the provisions of U. P. Act No. 13 of 1972 (in short 'the Act') dated 16-1-2006. The brief facts leading to filing of the present writ petition are as under:
(2.) THE respondents-landlord filed an application under Section 21 (1) (a) of 'the Act' on the ground that in the family partition, the accommodation which has come in their share compelled the landlord to move release application on the ground that the landlord bona fide requires the accommodation in dispute. THE aforesaid application was contested by the petitioner-tenant firstly on the ground that the application under Section 21 (1) (a) of the Act is not maintainable as the landlord has not impleaded all the landlord in the application thus, the application filed by respondent alone is not maintainable and is liable to be dismissed. THE petitioner has further taken up the case that neither the need of landlord is bona fide nor pressing and the tilt of the comparative hardship is also in favour of the tenant. What weighed before the prescribed authority who has rejected the application under Section 21 of 'the Act' filed by the respondent on the ground that all the landlords have not filed the application. THE application is therefore rejected. THE respondent landlord preferred an appeal before the appellate authority against the order dated 24-2-2004 passed by the prescribed authority. Before the appellate authority, the petitioner-tenant raised the same objections regarding maintainability of the application under Section 21 (1) (a) of 'the Act', which is repelled by the appellate authority in view of the law of this Court reported in 1992 (1) ARC 469 and decisions reported in AIR 1980 All 180; AIR 1968 SC 1299 and 1998 (1) ARC 1, wherein the Apex Court and this Court has held that the application filed by one of the co-owners under Section 21 (1) (a) of the Act is maintainable even if other co-owners have not been impleaded as party. THE appellate authority after arriving at the conclusion that the view taken by the prescribed authority regarding maintainability deserves to be set aside, it proceeded to decide the matter on merits. THE appellate authority after discussing the material on record have arrived at the finding that from the material on record the landlord has been able to establish that the need of the landlord is bona fide. On the question of comparative hardship also, the appellate authority recorded finding in favour of the landlord and set aside the order passed by the prescribed authority dated 24-2- 2004 and allowed the application filed by the landlord under Section 21 (1) (a) of the Act and directed for release of the accommodation in dispute. It is this order which is under challenge here. Before this Court, learned Counsel for the petitioner submitted that since the prescribed authority has dismissed the application filed by the landlord only on the ground of maintainability and the appellate authority having come to the conclusion that the application is maintainable, the appellate authority should have remanded back the matter to the prescribed authority for decision afresh regarding bona fide need of the landlord. The appellate authority has not done so. The appellate authority therefore assumed the jurisdiction of the prescribed authority and committed an error which amounts to error apparent on the face of record and deserves to be quashed by this Court. This argument cannot be accepted in view of the provisions of Section 22 read with Section 10 (2) of the Act which are quoted below: "10. Appeal against order under Sections [8,9 and 9-A].- (2) The appellate authority may confirm, vary or rescind the order, or remand the case to the District Magistrate for rehearing and may also take any additional evidence and pending its decision, stay the operation of the order under appeal on such terms, if any, as it thinks fit. " A bare reading of Section 10 (2) of the Act clearly demonstrates that it is within the domain and power of the appellate authority to decide the appeal filed by the landlord on merits, thus, in my opinion, the appellate authority has not committed any error once it came to the conclusion that view taken by the prescribed authority is erroneous in dismissing the application only on the ground of maintainability. On the question of merits regarding bona fide need and comparative hardship, I have gone through the order passed by the appellate authority. Learned Counsel for the petitioner has not been able to demonstrate that the view taken by the appellate authority on bona fide need and comparative hardship in any way suffers from any error much less error apparent on the face of record so as to warrant any interference under Article 226 of the Constitution of India.
(3.) IN this view of the matter, this writ petition has no force and is dismissed. Lastly, it is submitted that the petitioner-tenant is living in the disputed accommodation, therefore, he may be granted some reasonable time to vacate the same.;