POONAM SRIVASTAV,J. - (1.) HEARD Sri Anil Sharma, learned counsel for the petitioner-tenant and Sri Sumit Daga Advocate for the respondents-landlord.
(2.) THE judgment and order dated 27.8.2009 passed by Upper District Judge, Court No. 4, Meerut in Rent Appeal No. 13 of 2009 as well as judgment and order dated 27.1.2009 passed by the Prescribed Authority in P.A. Case No. 54 of 2006 are impugned in the instant writ petition. The landlord-respondents preferred an application under Section 21(1)(a) of U.P. Act No. 13 of 1972 (hereinafter referred to as the Act) seeking release of an accommodation which is residential and in occupation of the petitioner-tenant since last 10-15 years. Affidavits were exchanged between the parties. The petitioner-tenant contented that need of the landlord is neither bonafide nor hardship suffered will be more than that of the tenant, for the reason that Smt. Geeta Garg was in occupation of another accommodation A-41, Geetanjali Ganga Sagar Colony, Mawana Road, Meerut. She had constructed another house within municipal limit and, therefore, a deemed vacancy is created. The accommodation of Geetanjali Ganga Sagar Colony Mawana Road, Meerut is therefore at the disposal of the landlord. The release application is liable to be dismissed on this ground alone. The Prescribed Authority allowed the release application and his judgment is also confirmed in appeal
(3.) SRI Anil Sharma appearing on behalf of the petitioner-tenant has very emphatically argued that the courts below erred in law while holding need of the landlord bonafide and also question of comparative hardship in favour of the landlord as they have failed to take into account the accommodation suggested by tenant which is now in the category of being 'vacant'. The landlord can very well avail the said accommodation. Learned counsel has placed a number of decisions. The first decision is Rakesh Kumar Joshi Vs. Narendra Kumar and others, 2008(1) ARC, 539. It is submitted that legal fiction is created in regard to the vacancy and it is applied to the residential accommodation applying provisions of the Act. The Apex Court ruled that while considering an application for release under Section 21(1)(a) of the Act, the High Court was in error for invoking the said provision. Reliance is placed on paragraph 9 where it was held that the High Court should have taken into consideration the factual aspect of the matter, particularly with regard to the findings of fact arrived at by the learned Appellate Court. The next decision relied upon is Shiv Sunder Lal Dwivedi Vs. Rent Control and Eviction Officer/Additional City Magistrate (2nd), District Kanpur Nagar and others, 2008(3) ARC, 722. This is again a decision on the provisions of Section 12(3) of the Act where interpretation of the word 'acquires' was given. This Court was of the view that word 'acquires' has a wide meaning and vacancy contemplated under Section 12(3) of the Act comes into existence immediately after taking possession of an accommodation in vacant state of the building, by the person so contemplated.;