- (1.) S. U. Khan, J. This is landlord's writ petition arising out of eviction/release proceedings initiated by him against tenant- respondents 4 and 5 Shrimati Banni and Smt. Munni daughters of Wajid Ali, the original tenant, oil the ground of bona fide need under Section 21 of U. P. Act No. 13 of 1972. The case was registered as Case No. 58 of 1981 on the file of the prescribed authority, Jhansi. The house in dispute contains two rooms and other amenities. Open land, in the form of Chabutara, 30 feet long and 20 feet wide is also included in the tenanted accommodation. The rent is Rs. 6. 25 per month. Prescribed Authority, Jhansi through judgment and order dated 11- 9-1984 rejected the release application. Against the said judgment and order landlord-petitioner filed R. C. Appeal No. 59 of 1984, IVth A. D. J. Jhansi through judgment and order dated 18- 1-1991 dismissed the appeal hence this writ petition by the landlord.
(2.) HEARD learned Counsel for the parties. In the release application it was stated that landlord was residing in a tenanted house of one room and he intended to reconstruct the house in dispute and use the same for his residence. As release application was on the ground of bona fide need, hence application was under Section 21 (1) (a) of U. P. Act No. 13 of 1972. Under the said provision, landlord may seek release of the tenanted accommodation for his own use, either in its existing form or after demolition and reconstruction. Under the said provision there is no need to comply with the provisions of Rule 17 of the Rules framed under the Act. The said rule is applicable only when release application is filed under Section 21 (1) (b) of the Act. Under the said provision there is no question of bona fide need, or release is sought only and only on the ground that the building is in, dilapidated condition and requires demolition and reconstruction. Both the Courts below have wrongly held that provisions of said rule had not been complied with. Both the Courts below held that some other accommodation was available to the landlord, hence his need was not bona fide. The fact that landlord was residing in a tenanted house was admitted by the tenant. Tenant did not take up any such case that landlord had started residing in the tenanted house just before filing of the release application in order to create a ground for eviction. The Supreme Court has held in G. K. Devi v. Ghanshyam Das, AIR 2000 SC 656 and Dhanna Lal v. Kalawati Bai, 2002 (48) ALR 78 (SC) : AIR 2002 SC 2572 (para 26), that a tenanted accommodation available to the landlord cannot be taken (sic) accommodation in occupation of another tenant. 5. When the release application was filed, landlord was unmarried. However, during pendency of the appeal he was married and was having three children. This fact was brought on record before the Appellate Court by filing ration card showing two major and 3 minor members in the family of the landlord. The Appellate Court completely overlooked this aspect and held in, its judgment that landlord was alone meaning thereby unmarried. 6. Prescribed authority had held that house No. 76 Mewatipura was available to the landlord. However, in this regard Appellate Court held that in appeal it had been brought on record, as additional evidence that the said house had been sold by the landlord in the year 1978, hence it was not available to him. In this manner the said point was decided by the Appellate Court in favour of the landlord. 7. The Appellate Court held that one room near Ghore Ki Than was available to the landlord, hence his need was not bona fide. A room is quite distinct from house. Even a bachelor landlord cannot be compelled to live only in one room. In my opinion, mere availability of one room near Ghore Ki Than was no ground to reject the release application. Moreover, during dependency of appeal landlord had got married and as having three children, hence it was not expected to him to live only in one room. 8. I, therefore, hold that the findings of the Courts below that landlord could not prove his bona fide need is utterly illegal. On the facts found by the Courts below need of the landlord stood fully proved. Courts below committed an error of law in applying wrong principle of law pertaining to interpretation of the words 'bona fide need' upon the facts found by them. 9. When the matter is quite old it is not necessary to remand the matter (vide Mohd. Arif v. A. D. J. , 2005 (2) ARC 793 ). The Supreme Court in G. C. Kapoor v. N. K. Bhasin, 2001 (45) ALR 808 (SC), allowed out rightly release application filed by the landlord which had been dismissed by all the three Courts i. e. Prescribed Authority, Appellate Court and High Court. 10. In respect of comparative hardship, tenants did not show what efforts they made to search alternative accommodation after filing of release application. This was sufficient to tilt the balance of hardship against them vide B. C. Bhutada v. G. Mundada, AIR 2003 SC 2713. Moreover, rent of Rs. 6/- per month which the tenants are paying is virtually as well as actually no rent. By paying such insignificant rent they must have saved a lot of money. Money saved is money earned. They must, therefore, be in a position to take another house on good rent. Further, they did not file any allotment application for allotment of another house. Under Rule 10 (3) of the Rules framed under the Act, a tenant, against whom release application has been filed, is entitled to apply for allotment of another house immediately. Naturally such person is to be given preference in the matter of allotment. Respondents did not file any such allotment application. Thus the question of comparative hardship has also to be decided against the tenants. 11. Appellate Court in para 17 of its judgment mentioned that tenant had offered to surrender chabutara having dimensions of 30 feet x 20 feet for new construction by the landlord. Tenant cannot compel the landlord to make new construction and squeeze himself in a small portion to satisfy his need. After getting possession of the entire accommodation it will be the sweet will of the landlord as to whether he resides in the same portion or makes new constructions. 12. Accordingly, I find that the judgments and orders passed by both the Courts below suffer from manifest error of law. Writ petition is, therefore, allowed. Judgments and orders passed by the Courts below are set aside. Release application of the landlord is allowed. 13. Tenant-respondent Nos. 3, 4 and 5, namely Nanhey, Smt. Banni and Smt. Munni are granted six months time to vacate provided that: (i) Within one month from today they file an undertaking before the prescribed authority to the effect that on or before the expiry of period of six months they will willingly vacate and handover possession of the accommodation in dispute to the landlord-petitioner. (ii) For this period of six months which has been granted to the tenants to vacate they are required to pay Rs. 3,000/- (at the rate of Rs. 500/- per month) as damages for use and occupation. This amount shall also be deposited within one month before the Prescribed Authority and shall immediately be paid to the landlord-petitioner. 14. In case of default in compliance with either of these conditions, ten ants-respondents shall be evicted after one month through process of Court. 15. It is further directed that in case undertaking is not filed or Rs. 3000/are not deposited within one month then tenants- respondents shall be liable to pay damages at the rate of Rs. 1000/- per month since after one month till the date of actual vacation. 16. Similarly, if after filing the aforesaid undertaking and depositing Rs. 3,000/- in one month, the accommodation in dispute is not vacated on the expiry of six months then damages for use and occupation shall be payable at the rate of Rs. 1000/- per month since after six months till actual vacation. .;