Sibghat Ullah Khan, J. - (1.) HEARD learned Counsel for the parties. This is landlady's writ petition arising out of release/eviction proceedings initiated by her against tenant respondent No. 2 on the ground of bonafide need under section 21 of U.P. Act No. 13 of 1972.
(2.) THIS writ petition was allowed by me on 14.9.2005. On the said date no one had appeared on behalf of the tenant -respondent. Thereafter, restoration/rehearing application was filed on behalf of respondent No. 2 which has been allowed today, and the said judgment has been set aside. Paragraphs 4 and 5 of earlier judgment dated 14.9.05 which contained relevant facts are quoted below: - - The prescribed authority found that out of six sons of the landlady, youngest son, who was unmarried, was residing with her. Prescribed authority also found that four of the sons of the landlady were employed in other cities. In respect of the Rakesh, one of the married sons of landlady, who was employed in Bulandsahar itself where property in dispute is situate. Prescribed authority found that due to paucity of accommodation he was residing in another house situated in another Mohalla. The Appellate Court held that during pendency of appeal, Rakesh Sharma had purchased a house in Avas Vikas Colony. According to the Appellate Court, on purchase of the house by Rakesh, there did not remain any need for him. However, if due to paucity of accommodation, one of the sons of the landlord/landlady is compelled to reside in another house as a licensee or tenant along with his family, and then there cannot be any doubt that the need is bonafide. If such family member purchases another house, this will not mitigate the need, rather if re -affirms the need. In case tenant had vacated the accommodation in dispute, there would not have been any necessity for Rakesh to purchase another house. There is one more important aspect, which has been completely overlooked by the Appellate Court. In both the portions in occupation of landlady as well as tenant, there is only one latrine and bathroom. Need for separate latrine and bathroom is so bonafide that there cannot be two arguments about it. Within one or two kilometers away from the house in dispute, tenant is having a very big house. The tenant asserted that it was situated in village. Even if the area where house of the tenant is situated is beyond municipal limits of the city, still the fact that the said house is only about 2 kilometer away from the house in dispute shows that absolutely no hardship would be caused to the tenant in case he is evicted. Learned Counsel for the tenant -respondent No. 2 has argued that now, the tenant has retired from service and is permanently residing in Bulandsahar in the house in dispute. In respect of the other house of the tenant situate at a distance of about 2 KMs. from the accommodation in dispute, learned Counsel for the tenant has argued that at present in the said house only mother of the tenant is residing. Learned Counsel has further argued that the said house of the tenant is not constructed in 800 square yard land. However, learned Counsel for the tenant is not in a position to give exact area of the land over which, the said house is constructed or exact number of rooms of the said house. Learned Counsel has further argued that the said house is situate in a village. Even if the said house is situate in a village, this fact is not denied that the distance of the said house of the tenant is only about 2 KMs. from the house in dispute. In view of this, it is quite clear that balance of hardship is heavily loaded in favour of the landlady. One of the sons of the landlady i.e. Rakesh was residing in a tenanted house at the time of filing of the release application due to paucity of accommodation. During the pendency of appeal, he purchased another house. This fact fully proved the bonafide need of the landlady for Rakesh. Apart from Rakesh another son of landlady i.e. Naveen is also residing along with her mother the landlady. Landlady is residing on the ground floor. There is only one latrine and bathroom which both the landlady as well as the tenant are using. This fact by itself is sufficient to prove the bonafide need of the landlady.
(3.) LEARNED Counsel for the tenant stated that tenant was ready to construct separate latrine bathroom for the landlady at his own cost. I am afraid that this can be permitted.;