- (1.) G. P. Mathur. J. This petition under Article 226 of the Constitution has been filed by the tenant for quashing the order dated 23-7-1990 passed by the Prescribed Authority allowing the release application filed under Section 21 (1) (a) of U. P. Act No. XIII of 1972 (hereinafter referred to as the Act) by Om Prakash, landlord (respondent No. 1) and also the order dated 29-5-1992 passed by the Appellate Authority. The landlord Om Prakash Gupta filed a release application on the ground inter alia that in the ground floor of House No. 360/2 Faithfulganj, Kanpur there were two rooms and in one of the said rooms the petitioner Gaya Prasad Sharma was a tenant on a rental of Rs. 20/- per month, that the other room in the ground floor was in the tenancy of Gopi Sharma, that in the first floor which was in his occupation there were two rooms, a tinshed and a kitchen; that there was only one latrine in the ground floor of the house which was being used by all the mem bers of his family as well as members of the family of both the tenants ; that his family consisted of himself, his wife, a son Dheeraj a daughter Meenu besides his father, mother, grand mother, a brother and sister ; that he was facing acute hardship on account of shortage of accommodation in his possession and therefore, the room in the tenancy of the petitioner be released in his favour. The release application was contested by the petitioner Gaya Prasad Sharma on the ground inter alia that the was in occupation of one room only and was also using the court yard and latrine in common with other tenant and the landlord; that the house was purchased benami by Binda Prasad, grand father of the landlord and after his (Binda Prasad) death, his all heirs had become the owners thereof and Om Prakash alone was not the owner of the same; that Smt. Nand Rani, the grandmother of the landlord lived in a different locality and the marriage of landlord's sister Km. Usha Gupta had been settled ; that the accommodation in possession of the landlord was quite sufficient looking to his requirement; that he was a poor man and was getting a salary of Rs. 880 per month and his daugther was of marriageable age; that if the single room in his occupation was released, he will be thrown on the street.
(2.) THE parties led evidence in support of their respective cases by filing af fidavits and some documentary evidence. THE Prescribed Authority held that the need of the landlord was bona fide and that the landlord will suffer greater hardship if the application was rejected as against the hardship likely to be suffered by the tenant from the grant of the applicant. On these findings the release application was allowed by the order dated 23-7-1990. THE appeal preferred by the tenant was dismissed by the Addl. District Judge on 29-5-1992. Sri K. M. Dayal learned senior Advocate, has submitted that no finding on the point of bona fide requirement of the landlord had been recorded either by the Prescribed Authority or by the Appellate Authority and in absence of such a find ing, the order of release passed in favour of the landlord cannot be sustained. In my opinion the contention raised by the learned Counsel is not correct. The Prescribed Authority, after noticing the case of the parties and the evidence adduced by them, has posed the problem that was required to be considered viz. Whether the need of the landlord was bona fide and if so, on comparison of need who would suffer greater hardship. Thereafter he proceeded to consider the question of bona fide need of the landlord (bottom of page 46 of the paper book ). The Prescribed Authority has held that the landlord has got only two rooms and a tinshed in his possession which were on the first floor and his family consisted of seven members. The Authority also noticed that the grandmother of the landlord had died but even then looking to the accommodation available with him, it could not be held that the same was sufficient. It is important to not that the tenant himself has admitted in para 9 of the written statement (para 10 of the counter affidavit filed before the Prescribed Authority) that there was scarcity of accommodation with the landlord as well with the tenant. This admission of the tenant that the accommodation in possession of the landlord was not sufficient for him has also been taken into con sideration by the Prescribed Authority. The Appellate Authority has also recorded a finding that looking to the size of the family of the landlord and the accommoda tion available with him, his need could not be held to be imaginary. Learned Addl. District Judge has held that the landlord needs a separate room for himself in order to maintain privacy, a room for his aged parents and a separate room for his children as they were students. Thus the contention raised by the learned Counsel that the authorities had not recorded any finding on the question of bona fide need of the landlord is not correct. There is a clean finding by both the authorities that the need of the landlord is bona fide. Sri. K. M. Dayal has next submitted that even if there was need of the landlord the requirement of landlord and tenant being equi-balanced, the release application was liable to be dismissed. In support of this proposition learned Coun sel has placed reliance on Nanhey Singh v. II A. D. J. , 1991 (1) Allahabad Rent Cases 111 and Bishan Chand v. V. A. D. J. , 1982 (1) A. R. C. 440 (SC ). In my opinion, the contention raised by the learned Counsel has no application on the facts of the present case. There is no finding either by the Prescribed Authority or by the Ap pellate Court to the effect that the need of the landlord and tenant were equi-balanced. The Prescribed Authority has recorded a categorical finding that looking to the size of the family and the accommodation available with the landlord it could not be held that the same was sufficient for his requirement. Similarly the Appellate Authority has held that the need of the landlord was real and bona fide and the same could not be held to be imaginary. 4. On the question of comparative hardship also, the learned Addl. District Judge has held that though the tenant also needed the accommodation but the comparison of their needs showed that the landlord would suffer greater hardship if the accommodation was not released in his favour. It is true that the tenant was not well of financially and he had retired from service but that fact alone cannot out weigh the hardship which will be caused to the landlord if the release application was rejected. 6. Sri A. N. Sinha, learned Counsel of the landlord has further urged that the release application was filed in July 1987 and a period of more than eight years had elapsed but the tenant had not made any effort during this period to get an alterna tive accommodation and this was a material circumstance to be taken into con sideration while judging the question of comparative hardship. In this connection learned Counsel has made reference to the decisions rendered by this Court in 1977 Allahabad Law Report 15, 1984 (1) A. R. C. 378 and 1985 (2) A. R. C. 291 I am in agreement with the contention raised by the learned Counsel. It is well settled that while deciding the question of comparative hardship, efforts made by the tenants to get an alternative accommodation have a strong bearing. In the present case though the release application was filed as far back as in July 1987, the tenant has led no evidence at all to show that he made any sincere effort to get an alternative accom modation but he could not succeed in his efforts. In this view of the matter the finding recorded by both the authorities in favour of the landlord on the question of comparative hardship does not suffer from any infirmity whatsoever. 7. Learned Counsel for the petitioner has also urged that the tenant had of fered to exchange the accommodation in his possession, namely to vacate the room on the ground floor and to shift to the first floor and in view of the offer made by the tenant the release application is liable to be rejected. In view of the pleadings of the parties and the findings recorded by the Rent Control Authorities, the offer made by the tenant cannot mitigate the hardship of the landlord. The landlord has two rooms and a tinshed on the first floor and by merely getting possession of one room on the ground floor and simultaneously losing possession of one room on the first floor would not mitigate his hardship. The landlord has not sought release on the ground of any exceptional hardship being suffered by him on account of resid ing in the first floor. On the contrary his case is that the total accommodation in his possession is wholly inadequate looking to his requirement. Therefore, the offer made by the tenant to shift to the first floor can have no hearing on the issues involved in the case. 8. Learned Counsel for the petitioner has also urged on the basis of a sup plementary affidavit that the landlord has made some additional construction during the pendency of the writ petition in this Court and thus his need for release of the accommodation in dispute has ceased to exist. It may be mentioned here that though this affidavit was sworn on 22-8-1994, the copy of the same was served on the learned Counsel for the respondent landlord in court on 13-12-1995 and was filed during the course of the. hearing of the petition. Sri A. N. Sinha, learned Coun sel for the contesting respondent has strongly objected to the supplementary affidavit being accepted and being made part of the record of the case. The writ petition was filed on 25-8-1992 and the counter-affidavit was filed on 29-9-1992 and even the rejoinder affidavit was filed on 20-10-1992. The petitioner has not filed any application for leave of the court to file the supplementary affidavit. I am, therefore, not inclined to accept the supplementary affidavit, as a part of record of the writ petition. No reason is for the coming why the affidavit was not filed earlier. Acceptance of supplementary affidavit at the stage of hearing would have entailed adjournment of the case to enable the respondent to file a reply to the same. The petition, therefore, has to be decided on the basis of the record as it stood prior to the commencement of hearing. 9. Even assuming the facts stated in the supplementary affidavit to be correct, it cannot result in dismissal of the release application. If a landlord facing acute hardship of accommodation, files a release application and inspite of release order being passed in his favour by two Authorities at the district level, he does not get possession on account of filing of a writ petition by the tenant in the High Court and securing a stay order, he cannot continue to suffer indifinitely. It is well known that decisions of writ petitions in High Court take time and if under such cir cumstances, the landlord makes some additional construction in order to mitigate his hardship, it cannot be held as a universal rule that in such circumstances the release application ought to be dimissed. If this plea is accepted, it will encourage the tenants to delay the proceedings of eviction by any means which may compel the landlord to make additional construction, wherever possible, and thereby secure a judicial order in their favour. 10. Sri Sinha has rightly contended that the tenant has filed a writ petition under Article 226 of the Constitution seeking a writ of certiorari for quashing of the orders passed by respondents 2 and 3 and in such a petition, this Court has to see the correctness or otherwise of the orders passed by the aforesaid Authorities on the material placed before them and it is not permissible for the petitioner to file additional evidence and to assail the validity of the impugned orders on its basis. This question has been considered in considerable detail by Hon'ble S. P. Srivastava, J. in M/s Pharma Traders v. VII Addl District Judge, 1992 (2) A. R. C. 592 and it has been held that events happening subsequent to the passing of the appel late order which has become final by virtue of Section 11 (3) of the Act on account of statutory finality attached to them, cannot be taken into consideration in a writ petition seeking relief of certiorari. 11. For the reasons mentioned above, there is no merit in this petition which is hereby dismissed. The petitioner is, however, granted time till 31-5-1996 to va cate the premises provided he files an undertaking before the Prescribed Authority by 15-2-1996 that he will peacefully vacate the premises and shall handover vacant possession of the same to the landlord by the aforesaid date. The tenant shall also pay to the landlord or deposit with the Prescribed Authority the entire rent due upto 31-5-96 by the same date i. e. 15-2-1996. In the event of default of any one of the conditions imposed above, it will be open to the landlord to take possession of the premises in accordance with law. No costs. 12. Office is directed to issue a certified copy of the judgment to the petitioner within three days of his making an application to that effect. Petition dismissed. .;