Sibghat Ullah Khan, J. - (1.) HEAD Learned Counsel for the parties. This is landlords' writ petition arising out of eviction/release proceedings initiated by them against tenant -respondent No. 2 -B.L. Khare on the ground of bonafide need under section 21 of U.P. Act No. 13 of 1972 in the form of P.A. Case No. 71 of 1988 on the file of Prescribed Authority/Additional Civil Judge, (II), Bareilly.
(2.) IN the release application it was stated that landlords had purchased half portion of quarter No. 321 and entire quarter No. 322. Property in dispute is quarter No. 322. It was in tenancy occupation of respondent No. 2 since before its purchase by the landlords. Landlords further stated that they were residing in a tenanted house at the rent of Rs. 60/ - per month (rent of the quarter in dispute is Rs. 30/ - per month). Landlords further stated that the building in dispute as well as the building of the adjoining quarter No. 321 were in dilapidated condition and they proposed to demolish the same and reconstruct a new house for their own residence. The application was made under section 21(1)(a) of U.P. Act No. 13 of 1972. Para -6 of the release application leaves no doubt in that regard. Mandatory notice of six months was given on 12.4.1988 after purchasing the property on 25.3.1985. Release application was filed in October 1988. Trial Court through judgment and order dated 29.1.1990 allowed the release application. Trial Court found the need of the landlords to be bonafide. Trial Court also found that balance of hardship lay in favour of the landlords as tenant did not make any efforts to search alternative accommodation after filing of the release application. Under Rule 10(3) of the Rules framed under the Act it is provided that a tenant against whom release application under section 21 of U.P. Act No. 13 of 1972 is filed may immediately apply for allotment of alternative accommodation. Naturally such tenants are to be given some preference in allotment also. However tenant did not bring on record that he filed any such application. Even otherwise, tenant did not show that he made any effort to take any house on rent through open market (i.e. such house which is not covered by Rent Control Act). In such situation the balance of hardship tilts against he tenant vide B.C. Bhutada v. G.R. Mundada : AIR 2003 (SC) 2713. Against the said judgment and order passed by the prescribed authority tenant filed R.C. Appeal No. 22 of 1990. IXth A.D.J., Bareilly through judgment and order dated 5.8.1991 allowed the appeal and set aside the judgment and order of the prescribed authority hence this writ petition by the landlords.
(3.) THE first error which was committed by the Appellate Court was that it held that provisions of Rule 17 had not been complied with. Said rule is attracted only when application is filed under section 21(1)(b) of the Act. In the instant case the application was not under that sub -section. It was pure and simple application under section 21(1)(a) of the Act.;