R.M. Sahai, J. - (1.) ALTHOUGH this landlady's petition, arising out of an application filed under Section 21(1) of U.P. Act No. XIII of 1972 for release as Dermises were being kept locked and not used by the tenant, can be decided on applicability or otherwise of Explanation IV to Section 21 yet it is necessary to narrate short facts for adjudicating upon correctness of finding on hardship. It is not disputed that there are three rooms on first floor, one on second and three on ground floor, landlady resides in first and second floor. Two rooms in ground floor are also in her possession. But according to Commissioner's report one of the rooms had fallen down and was standing on bailies. Other room was used by servant. And third room was in tenancy of opposite party. Family of landlady residing in premises has been found to consist of self, her two married sons with their children each. Another married son is found to be residing at Lucknow. Petitioner however claimed that even her son 's son that is her grandson who was employed at Kanpur was residing with her. It has also been found that the tenant had been allotted a quarter in the factory he was employed and his sons and daughters were residing with him. But according to appellate authority he shall suffer greater haroship as his brother who was residing in accommodation shall have to shift and reside with tenant causing him hardship. Further since the quarter had been allotted five of six years before moving of application it was clear that Petitioner was not interested and application was moved only because rent of premises was Rs. 20/ -.
(2.) EVEN assuming, as argued by the learned Counsel for the tenant, that stece the quarter was allotted to the tenant prior to enforcement of Act No. X IlI of 1972 the explanation I to Section 22 did not apply, the presumption of bonafide need arose in favour of the Petitioner by virtue of Explanation 4 to the Section. This explanation raised a presumption in favour of the landlord if he was residing in a part of the accommodation. It was deleted by Act No. 28 of 1976 with retrospective effect. But in the case of Kailash Nandan Prasad v. Addl. District Judge, Moradabad 1985 L. Rs. 29 it has been held by the Supreme Court that retrospectively given to the amending Act could not effect the application filed earlier. As admittedly the application was filed in 1973, the explanation was applicable to it. A presumption, therefore, of bona fide need arose in favour of the Petitioner. In these circumstances, it is not necessary to consider the finding recorded by the appellate authority on bona fide need on merits as in ignoring the explanation he committed an error of law. As regards hardship the reasoning of appellate authority that if application was allowed the tenant's brother shall be evicted and that shall cause hardship to tenant is factually incorrect and legally fallacious. Need of brother who under the Act is not a family member of tenant could not result in tilting finding on hardship against the landlady. Then a Commissioner appointed on Petitioner's request found both of tenant 's brother residing separately in their own houses. It was believed by prescribed authority. The finding was not set aside by appellate authority. In fact, he did not advert to Commissioner's report at all. Before appellate authority an affidavit was also filed averring that mother of tenant had died. It was not controverted. Even the filing of application after allotment of quarter after five or six years was irrelevant as need for additional accommodation keeps on changing with passage of time. The order was, therefore, passed by appellate authority both under misapprehension of law and fact.
(3.) IN the result this petition succeeds and is allowed. The order passed by the appellate authority is quashed. The parties shall bear their own costs. The tenant is permitted one month's time from today to remove the goods, if any, from the room in dispute.;