- (1.) This is landlord's writ petition. It was allowed by me on 21.8.2008 without hearing anyone on behalf of tenants-respondents as no one had appeared on their behalf at the time of hearing. Thereafter rehearing/recall application was filed by the tenant-respondents which has been allowed today. Paragraphs 2, 3, 4 and 5 of my judgment dated 21.8.2008 which contained necessary facts are quoted below:- This is landlord's writ petition arising out of eviction/release proceedings initiated by him against respondents Nos. 3 and 4 who are husband and wife on the ground of bona fide need under section 21 of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 in the form P.A. Case No. 3 of 1986. Prescribed Authority, Gorakhpur through judgment and order dated 17.4.1992 rejected the release application. Against the said judgment and order the petitioner-landlord filed appeal. Neither in the certified copy nor in typed copy (Annexure 16) of the judgment of the Appellate Court, number of the appeal is mentioned. IVth A.D.J., Gorakhpur dismissed the appeal through judgment and order dated 19.4.1997, hence this writ petition. Property in dispute is first floor part of a house containing two rooms and other amenities. Landlord is residing on the ground floor which consists of only one room and two varandas. According to the allegations made in the release application, one room on the second floor was also in possession of the landlord but he was not able to use that as stairs passed through the tenanted portion and tenants raised obstructions in the use of the stairs by the landlord. In the release application it was further alleged that even though husband-respondent No. 3 Jagdish Lal Srivastava, was tenant however as rent under section 30 of the Act had been deposited by wife respondent No. 4 Smt. Nirmala Srivastava, hence she was also being impleaded as opposite party No. 2 in the release application. Respondent No. 4 asserted that she was the tenant. According to the landlord rate of rent was Rs. 125/- per month. However according to the tenant rate of rent was Rs. 95/- per month. In the release application copy of which is Annexure-1 to the writ petition it was stated that landlord's family consisted of eight members i.e., landlord, his wife, five daughters and his grandmother. It was stated that grandmother of the landlord had recently shifted from Goa to Gorakhpur (where property in dispute is situate) and was residing with the landlord. It was further stated that the landlord was already feeling lot of difficulties in accommodating his big family in one room, however, arrival of his grandmother had worsened the situation. It was also stated that elder daughter of the landlord who at the time of filing of the release application was aged about 10 years and was studying in Class IV was receiving tuition and there was no space for making seating arrangement for the tutor and the taught. Unfortunately, during pendency of release application landlord's grandmother died. Both the Courts below rejected the release application on the ground that basically need set up was for the grandmother who had died. During pendency of proceedings before Courts below the youngest daughter of the landlord who was aged on year at the time of filing of the release application died but soon thereafter a son was also born by the name of Durgeesh. The Appellate Court has observed that at the time of decision of appeal, ages of the Irving children of the landlord were in between 10 to 19 years. The Courts below were not right in holding that the need set up in the release application was only for the grandmother. It was only one of several grounds on which release was sought. The main ground or at least equally important ground on which release was sought by the landlord was that he was having big family consisting of himself, his wife and 5 children and he had only one room at his disposal. At the time of decision of appeal, the children of the landlord were of the ages in between 10 to 19. To prove bona fide need nothing more was required.
(2.) The view of the Lower Appellate Court that father-in-law of the landlord was an old man, likely to die soon and after his death landlord would be entitled to use the accommodation of his father-in-law is nothing short of cruelty. Even after death of father-in-law of the landlord, landlord would not be having any right to use the accommodation left behind by his father-in-law.
(3.) As far as comparative hardship is concerned tenants did to show that they made any effort either to purchase or take on good rent alternative accommodation. The husband-tenant has been M.L.A. hence he must be in a position to arrange alternative accommodation. In view of Supreme Court Authority in "Badrinarayan Chunilal Bhutada v. Govindram Ramgopal Mundada,2006 63 AllLR 438" it was sufficient to tilt the balance of hardship against the tenant.;