- (1.) RAKESH Tiwari, J. Heard Counsel for the parties and perused the record.
(2.) THIS writ petition has been filed for quashing the order dated 15-3-2002 passed by Addl. District and Sessions Judge, Court No. 8, Kanpur Nagar in Rent Appeal No. 14 of 1998 Smt. Rafiquinnisa and Ors. v. Abdul Waheed and Ors. , and order dated 20-12-1997 passed by Chief Judicial Magistrate/prescribed Authority, Kanpur Nagar in Case No. 10 of 1992 Abdul Waheed v. Smt. Rufiquinnisa and Ors. At the outset, a preliminary objection has been raised by Counsel for the respondents-landlord that the findings recorded by the Courts below in relation in bona fide need on an application under Section 21 (1) (a) of the U. P. Urban Building (Regulation of Letting, Eviction and Rent) Act, 1972 (hereafter referred to as 'the Act') are findings of fact and they cannot be gone into in writ jurisdiction. He further submits that the petitioner cannot oppose the aforesaid application under Section 21 (1) (a) of the Act in view of explanation (1) to Section 21 of the Act. For the purposes of this case, Section 21 (1) (a) and its explanation (1) are telex ant and are reproduced below: "21. Proceedings for release of building under occupation of tenant.- (1) The Prescribed authority may, on an application of the landlord in that behalf, order the eviction of a tenant from the building under tenancy or any specified part thereof if it is satisfied that any of the following grounds exists, namely- (a) that the building is bona fide required either in its existing form or alter demolition and new construction by the landlord for occupation by himself or any member of his family, or any person for whose benefit it is held by him, either for residential purposes or for purposes of any profession, trade or calling, or where the landlord is the trustee of a public charitable trust, for the objects of the trusts; Explanation I.- In the case of a residential building - (i) where the tenant or any member of his family who has been normally residing with or is wholly dependent on him has built or has otherwise acquired in a vacant state or has got vacated after acquisition a residential building in the same city, municipality, notified area or town area, no objection by the tenant against an application under this sub-section shall be entertained; . . . . . . . . . "
(3.) ATTENTION has been drawn by Counsel for the respondents to paragraph 14 of the writ petition where it has been pointed out that proforma respondent No. 7, real son of the petitioner No. 1 has taken an accommodation in premises No. 131/33 Begam Purva, Kanpur in his own personal capacity and he along with his family members is residing in the said accommodation though it is stated by the petitioners that they have no concern with the said accommodation. The following reply to paragraph 14 of the writ petition has been given in paragraph 12 of the Counter Affidavit : " (12) That from the judgment of the learned District Judge in Rent Control Appeal No. 134 of 1981 filed as Annexure No. 9 to the writ petition, it is clear that the petitioners have got their own house No. 88/178 Shaliabad Kanpur as well as House No. 131/21 Begumpurwa Kanpur. " Counsel for the petitioner has relied upon the judgment of Hon'ble the Apex Court in Ashok Kumar and Ors. v. Sita Ram, 2001 (2) JCLR 249 (SC) : 2001 (2) ARC 1, wherein it has been held that finding of fact recorded by the Court below should not be interfered with by High Court in writ jurisdiction unless there is a manifest error of law on face of record or the finding is patently perverse. Explanation (1) to Section 21 (1) (a) of the Act in unequivocal terms provides that where the tenant or any member of his family who has been normally residing with or is wholly dependent on him has built or has otherwise acquired in a vacant state or has got vacated after acquisition a residential building in the same city, municipality, notified area or town area, no objection by the tenant against an application under this sub-section shall be entertained.;