Jalpa Prasad vs Ashok Kumar & Ors.

S.P. Mehrotra, J.—This Writ Petition under Article 226 of the Constitution of India has been filed by the petitioner, interalia, praying for quashing the judgment and order dated 2491988 (Annexure3 to the writ petition) passed by the learned 5th Additional District and Sessions Judge, Kanpur Nagar (respondent No. 9).

The dispute relates to an accommodation in premises No. 50/89, Naughara, Kanpur, the details whereof are given in the release application referred to hereinafter. The said accommodation has hereinafter been referred to as �the disputed accommodation�.

It appears that a release application under Section 21(1)(a) of the U.P. Act No. XIII of 1972 (in short �the Act�) purporting to be made on behalf of Smt. Sarju Devi (proforma respondent No. 7 herein) and Jalpa Prasad (petitioner herein) as applicant Nos. 1 and 2, was filed against Dr. Shambhu Dayal (predecessorininterest of the respondent Nos. 1 to 6 herein). It was, interalia, alleged in the said release application that the said Smt. Sarju Devi (proforma respondent No. 7 herein) and the said Jalpa Prasad (petitioner herein) (applicant Nos. 1 and 2 in the release application) were the owners and landlords of the premises No. 50/89, Naughara, Kanpur; and that the said Dr. Shambhu Dayal (predecessorin interest of the respondent Nos. 1 to 6 herein) had been a tenant of the disputed accommodation at a rental of Rs. 11.55 per month; and that the rents were realized from the said Dr. Shambhu Dayal (predecessorininterest of the respondent Nos. 1 to 6 herein) in the name of M/s. Gurudin Lal Mahabir Prasad and that the said Dr. Shambhu Dayal (predecessorininterest of the respondent Nos. 1 to 6 herein) had been repeatedly requested to handover vacant possession of the disputed accommodation as it was required by the applicants/landlords, but the said Dr. Shambhu Dayal (predecessorininterest of the respondent Nos. 1 to 6 herein) did not pay much heed.

It was, interalia, further alleged in the said release application that the said Dr. Shambhu Dayal (predecessorin interest of the respondent Nos. 1 to 6 herein) had been carrying on Homeopathy dispensary in the disputed accommodation, but due to his old age, he had become a rare visitor to the accommodation; and that the said Dr. Shambhu Dayal (predecessor ininterest of the respondent Nos. 1 to 6 herein) was aged about 65 years. It was, interalia, further alleged in the said release application that the said Dr. Shambhu Dayal (predecessor ininterest of the respondent Nos. 1 to 6 herein), some ten months'' back, met with an accident and fractured his leg, and ever since then, the said Dr. Shambhu Dayal (predecessorininterest of the respondent Nos. 1 to 6 herein) was almost attached to the bed and his movements had been curtailed; and that in fact, due to his old age and the accident, the said Dr. Shambhu Dayal (predecessorininterest of the respondent Nos. 1 to 6 herein) was unable to even go out of the house; and that the disputed accommodation was no longer required by the said Dr. Shambhu Dayal (predecessorininterest of the respondent Nos. 1 to 6 herein), and the same was neither used by him nor was of any utility to him any more; and that the said Dr. Shambhu Dayal (predecessorininterest of the respondent Nos. 1 to 6 herein) was retaining the disputed accommodation only to make illegal gain.

It was, interalia, further alleged in the said release application that the family of the landlords/applicants was a large one comprising of the applicant No. 1 (Smt. Sarju Devi proforma respondent No. 7 herein), applicant No. 2 (Jalpa Prasad petitioner herein), his wife, three daughters and son; and that the name of the said son was Vinod Kumar, and he was aged about 20 years. It was, interalia, further alleged in the said release application that the applicant No. 2 (Jalpa Prasad petitioner herein) was also sitting idle since many years and he wanted to start a cloth business and establish his son therein too. It was, interalia, further alleged in the said release application that the disputed accommodation was ideally situated for cloth business, as it was situated in the cloth market, and the said Jalpa Prasad (petitioner herein) would be able to settle his son in life and earn his living. It was, interalia, further alleged in the said release application that it was not proper to allow an adult son to sit idle and it was high time for the applicant No. 2 (Jalpa Prasad petitioner herein) to fulfil his duties as father to settle the son in life; and that in fact, the said Vinod Kumar had inclination towards cloth business and the applicant No. 2 (Jalpa Prasad petitioner herein) had knowledge of the said business and proper contacts; and that the applicant No. 2 (Jalpa Prasad petitioner herein) had once done cloth business himself.

It was, interalia, further alleged in the said release application that both the applicants in the release application and the said Vinod Kumar had the sources to commence cloth business from the disputed accommodation, besides the applicant No. 2 (Jalpa Prasad petitioner herein) had been promised good credit by several cloth merchants.

It was, interalia, further alleged in the said release application that the need of the applicants in the release application was bona fide, pressing and genuine, and the balance of convenience lay in favour of the applicants; and that the applicants had no oblique motive and that the very future and source of livelihood of the applicants and their family members was depending on the release of the disputed accommodation in their favour.

It was, interalia, further alleged in the said release application that no hardship or inconvenience would be suffered by the said Dr. Shambhu Dayal (predecessorininterest of the respondent Nos. 1 to 6 herein) in the event of his eviction from the disputed accommodation, whereas irreparable injury and hardship would be suffered by the applicants in the event the release application was refused.

The said release application was registered as Rent Case No. 263 of 1978. Copy of the said release application has been filed as AnnexureCA1 to the counter affidavit sworn on 4th February, 2002 filed on behalf of the respondent Nos. 1 to 6 herein.

It further appears that the said release application was contested by the said Dr. Shambhu Dayal (predecessorininterest of the respondent Nos. 1 to 6 herein) by filing written statement. It was, interalia, alleged in the said written statement that the said Dr. Shambhu Dayal (predecessorin interest of the respondent Nos. 1 to 6 herein) was tenant in the disputed accommodation, paying rent of Rs. 11.55 per month, being an old tenant in occupation since 1932 for the last more than 47 years. It was, interalia, further alleged in the said written statement that the said Dr. Shambhu Dayal (predecessor ininterest of the respondent Nos. 1 to 6 herein) was a medical practitioner, duly registered with the Homeopathy Board, Lucknow and practising since 1932 and had been Income Tax assessee. It was, interalia, further alleged in the said written statement that all the sons of the said Dr. Shambhu Dayal (predecessorininterest of the respondent Nos. 1 to 6 herein) had completed studies and in order to establish the sons, the said Dr. Shambhu Dayal (predecessorininterest of the respondent Nos. 1 to 6 herein) had put his sons in the cloth business, who were also carrying on in part of the disputed accommodation cloth business, having no other accommodation at their disposal in any manner whatsoever for their business establishment.

It was, interalia, further alleged in the said written statement that it was wrong to allege that the landlords/applicants in the release application were in bona fide, pressing and genuine need of the disputed accommodation. It was, interalia, further alleged in the said written statement that the balance of inconvenience did not lie in favour of the landlords/applicants, and on the contrary, it lay in favour of the said Dr. Shambhu Dayal (predecessorininterest of the respondent Nos. 1 to 6 herein) and that the said Dr. Shambhu Dayal (predecessorininterest of the respondent Nos. 1 to 6 herein) would suffer great injury and hardship, if the disputed accommodation was released.

Copy of the said written statement filed on behalf of the said Dr. Shambhu Dayal (predecessorininterest of the respondent Nos. 1 to 6 herein) has been filed as AnnexureCA2 to the counter affidavit sworn on 4th February, 2002 filed on behalf of the respondent Nos. 1 to 6 herein.

It further appears that the parties led evidence before the Prescribed Authority in support of their respective cases.

It further appears that the learned 2nd Civil Judge, Kanpur (Prescribed Authority) (respondent No. 8 in the writ petition) by his judgment and order dated 2511982, interalia, allowed the said release application and released the disputed accommodation in favour of the landlords/applicants in the release application. It was, interalia, further directed that the landlords/applicants would pay an amount equal to two years'' rent to the said Dr. Shambhu Dayal (predecessorin interest of the respondent Nos. 1 to 6 herein) as compensation.

It was, interalia, held by the Prescribed Authority in the said judgment and order dated 2511982 that the said Dr. Shambhu Dayal (predecessorininterest of the respondent Nos. 1 to 6 herein) could not show that the applicant No. 2 (Jalpa Prasad petitioner herein) was engaged in any profession, calling or trade; and that the only inference in the circumstances, drawn was that the said Jalpa Prasad applicant No. 2 (petitioner herein) had no engagement; and that the evidence led by the applicants in the release application had shown that the said Vinod Kumar (son of the said Jalpa Prasad) had no profession, trade or calling which could suggest that he was settled in life; and that the engagement of the said Vinod Kumar as an Agent of Peerless General Finance and Investment Company Ltd. could not be said to be full time engagement or any employment with that company; and that the anxiousness on the part of the applicants to settle the said Vinod Kumar in the alleged business appeared natural and in good faith. It was, interalia, further held by the prescribed authority that the requirement of the applicant No. 2 (Jalpa Prasad petitioner herein) and the said Vinod Kumar for the disputed accommodation appeared to be honest, having an element of need. It was, interalia, further held by the prescribed authority that the applicant No. 2 (Jalpa Prasad petitioner herein) had succeeded to show that he had necessary knowhow of cloth business and further his contacts in this regard could benefit him for starting that business. As regards the question of financial resources for starting cloth business, it was, interalia, held by the prescribed authority that the applicant No. 2 appeared to be well associated with the business community, and was eager to start cloth business, he could easily start with, on credit basis, without much or huge investment.

It was, interalia, further held by the Prescribed Authority that it was undisputed that the said Dr. Shambhu Dayal (predecessorininterest of the respondent Nos. 1 to 6 herein) was a Homeopath and the disputed accommodation was let out to practise as Homeopath; and that the registers filed by the said Dr. Shambhu Dayal (predecessorininterest of the respondent Nos. 1 to 6 herein) in order to show that he was regularly attending the patients in the disputed accommodation, did not appear to be reliable; and that the allegation of the applicants in the release application that the said Dr. Shambhu Dayal (predecessor ininterest of the respondent Nos. 1 to 6 herein) did not utilize the disputed accommodation and had no requirement of that, was wellfounded and worth to be believed and that the attempt to show the business of sons of the said Dr. Shambhu Dayal (predecessorininterest of the respondent Nos. 1 to 6 herein) in the disputed accommodation appeared to be dishonest in order to retain the disputed accommodation on one or other excuse and that the recent start of cloth business, if any, by sons of the said Dr. Shambhu Dayal (predecessorininterest of the respondent Nos. 1 to 6 herein) would not uproot the claims of the applicants in the release application, which had been found to be bona fide and pressing.

As regards the question of comparative hardships of the parties, it was, interalia, held by the Prescribed Authority that in case of refusal to the release, the applicants in the release application would suffer greater hardship, because the applicant No. 2 (Jalpa Prasadpetitioner herein) and his son, Vinod Kumar would remain without any full time gainful engagement, and they would be deprived of a right to earn livelihood by their toil; and that on the other hand, the said Dr. Shambhu Dayal (predecessorininterest of the respondent Nos. 1 to 6 herein) did not require the disputed accommodation for medical practice, and in case, he was evicted from the disputed accommodation, he would not be put to any hardship or inconvenience.

It was, interalia, concluded by the Prescribed Authority that the applicants in the release application had succeeded to prove the element of need and the same appeared to be honest and pressing; and that on weighing the comparative hardships of the parties, the applicants in the release application would suffer more hardship, if the release application was refused, than the said Dr. Shambhu Dayal (predecessorininterest of the respondent Nos. 1 to 6 herein) if the release was allowed.

It further appears that against the said judgment and order dated 2511982, the said Dr. Shambhu Dayal (predecessorin interest of the respondent Nos. 1 to 6 herein) filed an appeal under Section 22 of the Act, which was registered as Rent Appeal No. 78 of 1982.

It further appears from the averments made in paragraph 9 of the writ petition that the said Smt. Sarju Devi (proforma respondent No. 7 herein) was the step mother of the said Jalpa Prasad (petitioner herein).

It further appears from the averments made in paragraph 10 of the writ petition that during the pendency of the said appeal, an application was moved by the said Dr. Shambhu Dayal (predecessor ininterest of the respondent Nos. 1 to 6 herein) that the application for release had not been signed by the said Smt. Sarju Devi (proforma respondent No. 7 herein).

It further appears that the Appellate Authority directed the said Jalpa Prasad (petitioner herein) to produce the said Smt. Sarju Devi (proforma respondent No. 7 herein) to verify her alleged signatures. It further appears that the said Smt. Sarju Devi (proforma respondent No. 7 herein) did not appear before the Appellate Authority for verification of her alleged signatures on the release application and the Vakalatnama purported to have been filed on her behalf alongwith the said Jalpa Prasad (petitioner herein). It further appears that in the said circumstances, the said Jalpa Prasad (petitioner herein) moved an application before the Appellate Authority for amendment of the release application praying that the Smt. Sarju Devi (proforma respondent No. 7 herein) be transposed as opposite party in the said release application. It further appears that the said application for amendment filed by the said Jalpa Prasad (petitioner herein) was rejected by the Appellate Authority. Thereupon, it appears, the petitioner herein (i.e., the said Jalpa Prasad) filed writ petition before this Court being Civil Misc. Writ Petition No. 15464 of 1985. It further appears that by the judgment and order dated 5121985, this Court allowed the said writ petition, quashed the said order of the Appellate Authority rejecting the application for amendment filed by the said Jalpa Prasad (petitioner herein), and directed the Appellate Authority to decide the appeal on merits after allowing the said Smt. Sarju Devi (proforma respondent No. 7 herein) to be impleaded as the proforma respondent/opposite party in the release application under Section 21 (1)(a) of the Act. Copy of the said judgment and order dated 5121985 has been filed as Annexure2 to the writ petition.

It further appears from the averments made in paragraph 11 of the said counter affidavit sworn on 4th February, 2002 filed on behalf of the respondent Nos. 1 to 6 herein in the present writ petition that after the said judgment and order dated 5121985 passed by this Court in Civil Misc. Writ Petition No. 15464 of 1985, the said Smt. Sarju Devi (proforma respondent No. 7 herein) was transposed as proforma respondent/opposite party in the said release application.

It further appears from the averments made in paragraph 11 of the present writ petition that in the meantime, litigation had ensued between the said Jalpa Prasad (petitioner herein) and his stepmother, the said Smt. Sarju Devi (proforma respondent No. 7 herein). The said Dr. Shambhu Dayal (predecessorin interest of the respondent Nos. 1 to 6 herein) got the signatures of the said Smt. Sarju Devi (proforma respondent No. 7 herein) on the said release application and the Vakalatnama filed alongwith it compared with those on the plaint in the suit filed by the said Smt. Sarju Devi (proforma respondent No. 7 herein) against the said Jalpa Prasad (petitioner herein) by a handwriting expert. It further appears that the handwriting expert reported that the two signatures of Smt. Sarju Devi (proforma respondent No. 7 herein) did not tally.

It further appears that during the pendency of the said appeal, the said Dr. Shambhu Dayal (predecessorininterest of the respondent Nos. 1 to 6 herein) died, and the respondents 1 to 6 herein as the heirs and legal representatives of the said Dr. Shambhu Dayal, got themselves substituted as appellants in the said appeal.

It further appears that by the judgment and order dated 249 1988, the learned 5th Additional District and Sessions Judge, Kanpur Nagar (Appellate Authority) (respondent No. 9 in the writ petition) allowed the said appeal (Rent Appeal No. 78 of 1982), and rejected the said release application.

It was, interalia, held by the Appellate Authority that the release application was liable to be rejected on account of noncompliance with the requirements of Rule 15(2) of the Rules framed under the Act; and that the need setup by the petitioner/landlord in the release application was not real or bona fide and that as regards the comparative hardships, the respondent Nos. 1 to 6 herein would suffer greater hardship as compared to the petitioner/landlord. Copy of the said judgment and order dated 2491988 passed by the Appellate Authority has been filed as Annexure3 to the writ petition.

Thereafter, the petitioner, filed the present writ petition, interalia, seeking the reliefs mentioned above.

It appears that a counter affidavit sworn on 4th February, 2002 was stated to have been filed on behalf of the respondent Nos. 1 to 6 herein. However, as the said counter affidavit was not traceable in the office of the Court, a copy of the said counter affidavit was filed on behalf of the respondent Nos. 1 to 6 herein alongwith Civil Misc. Application No. 143002 of 2002 supported by an affidavit. By the order dated 23rd August, 2002 passed on the said application, the said copy of the counter affidavit was directed to be taken on record.

It further appears that a supplementary counter affidavit sworn on 7th August, 2002 was also filed on behalf of the respondent Nos. 1 to 6 herein. The said supplementary counter affidavit was also taken on record by the said order dated 23rd August, 2002.

It further appears that a supplementary affidavit sworn on 26th August, 2002 was also filed on behalf of the respondent Nos. 1 to 6 herein. By the order dated 2682002, the said supplementary affidavit was taken on record.

It further appears that a rejoinder affidavit sworn on 5th April, 2002 was filed on behalf of the petitioner in reply to the said counter affidavit sworn on 4th February, 2002 filed on behalf of the respondent Nos. 1 to 6 herein.

I have heard Shri P.N. Saxena, learned senior counsel assisted by Shri Amit Saxena, learned counsel for the petitioner and Miss. Usha Kiran, learned counsel for the respondent Nos. 1 to 6 herein at length.

The first question which arises is as to whether the Appellate Authority was correct in holding that the release application was liable to be rejected on account of noncompliance with the provisions of Rule 15(2) of the Rules framed under the Act.

The Appellate Authority in the said judgment and order dated 2491988 held that the said Jalpa Prasad (petitioner herein) failed to produce before the Appellate Authority the said Smt. Sarju Devi (proforma respondent No. 7 herein) to verify her alleged signatures on the release application, and as such, adverse inference would be drawn against the said Jalpa Prasad (petitioner herein); and that the said Jalpa Prasad (petitioner herein) could have produced rebuttal of the report of the handwriting expert submitted on behalf of the respondent Nos. 1 to 6, but the said Jalpa Prasad (petitioner herein) did not do so; and that the said circumstances led to the conclusion that the original release application did not bear the signatures of the said Smt. Sarju Devi (proforma respondent No. 7 herein) and that, therefore, the release application was liable to be rejected on account of noncompliance with the requirements of Rule 15(2) of the Rules framed under the Act.

It is submitted by Shri P.N. Saxena, learned senior counsel appearing for the petitioner that before the Appellate Authority, an application was filed on behalf of the said Dr. Shambhu Dayal (predecessorininterest of the respondent Nos. 1 to 6 herein) that the release application had not been signed by the said Smt. Sarju Devi (proforma respondent No. 7 herein) whereupon the Appellate Authority directed the said Jalpa Prasad (petitioner herein) to produce the said Smt. Sarju Devi (proforma respondent No. 7 herein) to verify her alleged signatures. However, it is submitted by Shri Saxena, the dispute had arisen between the said Jalpa Prasad (petitioner herein) and the said Smt. Sarju Devi (proforma respondent No. 7 herein), and as such, the said Smt. Sarju Devi (proforma respondent No. 7 herein) did not cooperate and she did not appear before the Appellate Authority. In the circumstances, Shri Saxena submits, the said Jalpa Prasad (petitioner herein) moved an application, for amendment of the release application praying that the said Smt. Sarju Devi (proforma respondent No. 7 herein) be transposed as opposite party in the said release application. The said amendment application, the submission proceeds, having been rejected by the Appellate Authority, the said Jalpa Prasad (petitioner herein) filed Civil Misc. Writ Petition No. 15464 of 1985 which was allowed, and the order of the Appellate Authority rejecting the said amendment application filed by the said Jalpa Prasad (petitioner herein) was quashed, and the Appellate Authority was directed to decide the appeal on merits after allowing the said Smt. Sarju Devi (proforma respondent No. 7 herein) to be impleaded as the proforma respondent/opposite party in the release application under Section 21(1)(a) of the Act. Thereafter, it is submitted, the said Smt. Sarju Devi, (proforma respondent No. 7 herein) was transposed as proforma respondent/opposite party in the said release application. It is submitted that in view of the judgment dated 5121985 passed by this Court in the said Civil Misc. Writ Petition No. 15464 of 1985, the question of non compliance of Rule 15(2) of the Rules framed under the Act was no longer open for consideration by the Appellate Authority while deciding the said Rent Appeal No. 78 of 1982 by the impugned judgment and order dated 2491988. In any case, it is submitted, the said Smt. Sarju Devi (proforma respondent No. 7 herein) having been transposed as the proforma respondent/opposite party in the said release application, the formal defect, if any, stood rectified, and the release application could not be rejected on account of noncompliance of Rule 15(2) of the Rules framed under the Act.

Sri Saxena, learned senior counsel appearing for the petitioner relies upon the decision of a Full Bench of this Court in Gopal Dass and another v. 1st Additional District Judge, Varanasi and others, 1987 S.C & F.B. Rent Cases 137.

In reply, Miss. Usha Kiran, learned counsel for the respondent Nos. 1 to 6 submits that even after transposition of the said Smt. Sarju Devi (proforma respondent No. 7 herein) as proforma respondent/opposite party in the release application, the requirements of Rule 15(2) of the Rules framed under the Act were not met with, and it was open to the Appellate Authority to examine the said question. It is submitted by Miss. Usha Kiran that a perusal of paragraphs 13 and 16 of the release application shows that the need of both the applicants in the release application (namely, the said Smt. Sarju Devi and the said Jalpa Prasad) as well as the need of the said Vinod Kumar were setup in the release application, and as the said Smt. Sarju Devi (applicant No. 1 in the release application proforma respondent No. 7 herein) was transposed as the proforma respondent J opposite party, the release application ceased to be maintainable.

I have considered the submissions made by the learned counsel for the parties.

Rule 15 of the Rules framed under the Act provides as follows:

�15. Application for release of buildings under occupation of tenant [Section21 (1)]. (1) Every application for release under Section 21(1) shall specify the ground or grounds on which the tenant is sought to be evicted.

(2) The application or its reply shall be signed and verified in the manner prescribed under Rules 14 and 15 of Order VI of the First Schedule to the Code of Civil Procedure, 1908. If there are more than one landlords, the application shall be signed by all the colandlords.

(3) Every application referred to in subrule(1) shall, as far as possible, be decided within two months from the date of its presentation.�

Rule 15(2) thus, interalia, provides that the release application shall be signed and verified in the manner prescribed under Rules 14 and 15 of Order VI of the First Schedule of the Code of Civil Procedure, 1908. It is further provided in the said Rule 15(2) that if there are more than one landlords, the release application shall be signed by all the colandlords.

As noted above, a dispute was raised by the said Dr. Shambhu Dayal (predecessorininterest of the respondent Nos. 1 to 6 herein) before the Appellate Authority regarding the signatures of the said Smt. Sarju Devi (applicant No. 1 in the release application proforma respondent No. 7 herein). As the said Jalpa Prasad (petitioner herein) failed to produce the said Smt. Sarju Devi (proforma respondent No. 7 herein) before the Appellate Authority to verify her signatures, the said Jalpa Prasad (petitioner herein) filed the said amendment application praying for transposition of the said Smt. Sarju Devi (proforma respondent No. 7 herein) as the opposite party in the said release application. The Appellate Authority rejected the said amendment application. However, this Court by its judgment and order dated 5121985 passed in the said Civil Misc. Writ Petition No. 15464 of 1985 quashed the said order of the Appellate Authority rejecting the said amendment application filed by the said Jalpa Prasad (petitioner herein), and directed the Appellate Authority to decide the appeal on merits after allowing the said Smt. Sarju Devi (proforma respondent No. 7 herein) to be impleaded as the proforma respondent/opposite party in the said release application under Section 21(1)(a) of the Act. As noted above, it is averred in paragraph 11 of the counter affidavit sworn on 422002 filed on behalf of the respondent Nos. 1 to 6 herein in the present writ petition that after the said judgment and order dated 5121985 passed by this Court in the said Civil Misc. Writ Petition No. 15464 of 1985, the said Smt. Sarju Devi (proforma respondent No. 7 herein) was transposed as proforma respondent/opposite party in the said release application.

A perusal of the said judgment and order dated 5121985 passed in Civil Misc. Writ Petition No. 15464 of 1985 shows that this Court while dealing with the said writ petition filed against the rejection of the amendment application by the Appellate Authority, examined the question of Rule 15(2) of the Rules framed under the Act also. This Court was of the view that the impleadment of colandlord as proforma respondent in the release application was sufficient compliance with the requirements of Rule 15(2) of the Rules framed under the Act. Reliance was placed on various decisions of this Court. It was further held by this Court that transposition of the said Smt. Sarju Devi as proforma respondent in the release application would not prejudice the said Dr. Shambhu Dayal (predecessorininterest of the respondent Nos. 1 to 6 herein) in the defence that had already been put by him, and in fact, nothing changed except that formal defect, if any, in presentation of the release application was cured.

In my opinion, the controversy regarding noncompliance of Rule 15(2) of the Rules framed under the Act was set at rest by the said judgment and order dated 5121985, and the said judgment having become final between the parties, it was no longer open to the Appellate Authority to examine the said question again while deciding the said Rent Appeal No. 78 of 1982 by the impugned judgment and order dated 2491988.

Even otherwise, once the said Smt. Sarju Devi (proforma respondent No. 7 herein) was transposed as proforma respondent/opposite party in the release application pursuant to the said judgment and order dated 512 1985 passed by this Court, the question as to whether the original release application had been signed by the said Smt. Sarju Devi (proforma respondent No. 7 herein) was no longer relevant, and the Appellate Authority misdirected itself in considering the said question. Once Smt. Sarju Devi (proforma respondent No. 7 herein) was transposed as the proforma respondent/opposite party in the release application, the formal defect, if any, stood rectified.

It is settled that impleadment of colandlord as proforma respondent/opposite party in the release application is sufficient compliance of Rule 15(2) of the Rules framed under the Act.

Reference in this regard may be made to certain judicial decisions:

In Matadin Sharma v. District Judge, Banda & others, 1978 ARC 263, a learned Single Judge of this Court laid down as under (paragraph 4 of the said ARC):

�(4) The first argument made by Dr. R. Dwivedi, appearing for the petitioner, was that as the application under Section 21 had not been signed by all the members of the joint family, the same was defective, and that the Prescribed Authority could not act upon it. Rule 15(2) of the Rules framed under U.P. Act No. XIII of 1972 lays down that an application filed under Section 21 shall be signed and verified in the manner prescribed under Rules 14 and 15 of Order VI of the First Schedule to the Code of Civil Procedure and if there are more than one landlords, the application shall be signed by all the landlords. Laying emphasis on the last sentence of the aforesaid Rule, that the application must be signed by all the landlords, the learned counsel contended that as all the members constituting the joint family were the landlords, the application ought to have been signed by all of them. The submission made is liable to be rejected on grounds more than one. There is nothing on the record of the present writ petition to indicate that the point that the application was not signed by all the members of the joint family had been raised either in the objection or before the Prescribed Authority. The objection was of a nature which should have been raised at the earliest opportunity in as much as the same would have given a chance to the landlords to amend the application and to comply with the requirement of Rule 15(2). The petitioner could not take the landlord by surprise by raising the said objection for the first time in this Court. Moreover, the admitted case of the parties appears to be that the property in dispute belongs to the joint family. The application was filed by Rameshwar Prasad, who was the Karta of the said family. In my opinion, the signing of the application by Rameshwar Prasad Pandey in the capacity of Karta sufficiently fulfils the requirement of law. It was not necessary that all the members of the joint family should have signed it. The view taken by me that the objection should have been raised before the Prescribed Authority is supported by a decision of this Court in Shri Ram v. II Addl. District Judge, Meerut and others. The decision relied upon by the learned counsel for the petitioner in Smt. Sarju Devi and others v. Prescribed Authority, is clearly distinguishable. It was not considering the question of ownership of the property by a joint family. Further, it was considering a case where the property belonged to several co sharers and the suit had not been filed for the eviction of the tenant by all of them. The case of a joint Hindu family is distinct from that of a cosharerer.�

In Girraj Singh and others v. IIIrd Additional District Judge, Bareilly and others, 1979 ARC 422, a learned Single Judge of this Court opined as follows (paragraph 4 of the said ARC):

�(4) It would thus appear that the rules expressly permit signing of the application under Section 21 by one or more of the co landlords provided the other colandlords are arrayed as proforma oppositeparties. If the rule permit making of the application by only some of the colandlords, it is difficult to conceive that the rule making authority provided or intended at the same time that the application must be signed by every co landlord including one who has not joined in making of the application and who is arrayed as proforma opposite party. In my view, the provisions which require an application under Section 21 to be signed by all the colandlord have to be read harmoniously and in the context of the other Rules also, and is so construed, there can be no manner of doubt that subrule (2) of Rule 15 of the Act applies only to those cases where all the colandlords have joined in the making of the application. Obviously, the application has to be signed only by those co landlords who make the application and not by the nonpetitioning landlords also. It would be sufficient compliance with the rules if the nonpetitioning landlords are arrayed as proforma respondents.�

In Roop Narain v. Radha Mohan Katiyar, 1980 (UP) 2 RCC 212, a learned Single Judge of this Court held as follows (paragraph 4 of the said (UP) RCC):

�(4) In support of the first submission learned counsel has relied on two cases of this Court: Yogesh Saran v. Jyoti Prasad and others. K. C. Agarwal, J. has held that mere omission to sign the application by all the landlords is only of a formal character and an application made by a landlord cannot be rejected on the said basis. Girraj Singh v. III Addl. District Judge. A.N. Verma, J. has held that Rule 15(2) applies only to those cases where all the colandlords have joined in making of the application and the application has to be signed by those colandlords who make the application and not by the non petitioning landlords also and the other landlords can be made as proforma respondents. The principles laid down in the above two cases fully apply to the instant case.�

In Gopal Dass and another v. 1st Additional District Judge, Varanasi and others, 1987 S.C. & F.B. Rent Cases 137 (supra), relied upon by the learned senior counsel appearing for the petitioner, a Full Bench of this Court opined as follows (paragraph 17 of the said S.C. & F.B. Rent Cases):

�(17) So far as the applicability of this Rule to the present case is concerned, there is no problem. Murlidhar Sah who has brought the action for eviction of the premises in question is undoubtedly the landlord. He has signed the application. He alone is competent to sign the application. However, we may point out that the requirement of Rule 15(2) that an application for release of premises owned by coowners should be signed by all coowners would be invalid. One coowner is competent to maintain an action for eviction of the tenant of the entire premises, since he can be considered as a landlord within the meaning of Section 3(j) of the Act. One coowner alone, would be competent to sign such an application.�

In view of the aforesaid, I am of the opinion that the Appellate Authority acted illegally in holding that the release application was liable to be rejected on account of non compliance with the requirements of Rule 15(2) of the Rules framed under the Act. The submission of Shri P.N. Saxena, learned senior counsel appearing for the petitioner in this regard, in my opinion, is correct.

As regards the submission of Miss. Usha Kiran, learned counsel for the respondent Nos. 1 to 6 that a perusal of paragraphs 13 and 16 shows that the need of both the applicants in the release application (namely, the said Smt. Sarju Devi and the said Jalpa Prasad) were setup besides the need of the said Vinod Kumar, and that as the said Smt. Sarju Devi (applicant No. 1 in the release application) was transposed as the proforma respondent/opposite party in the release application, the release application was not maintainable, I am of the opinion, that the said submission is not correct. A perusal of the release application shows that basically the need of the said Jalpa Prasad and the said Vinod Kumar had been setup in the said release application. No need of the said Smt. Sarju Devi was setup in the said release application. The word �applicants� occurring in paragraphs 13 and 16 of the release application was evidently used as the release application purported to have been filed on behalf of the said Smt. Sarju Devi and the said Jalpa Prasad, but the use of the said word �applicants� in the said paragraphs would not change the basic complexion of the said release application.

The second question, which arises, is regarding bona fide need of the petitioner. As noted above, the Appellate Authority in the said judgment and order dated 2491988 held that the need setup by the petitioner (the said Jalpa Prasad) was not bona fide. A perusal of the said judgment and order dated 2491988 shows that the Appellate Authority mainly relied upon the following circumstances in recording the said finding on the question of bona fide need:

(a) The said Vinod Kumar, son of the said Jalpa Prasad (petitioner herein) was working for Peerless Company and his income was dependent on the commission determined on the amount of insurance got made by the said Vinod Kumar. The assertion made on behalf of the landlord that the income of the said Vinod Kumar was Rs. 971/ per annum did not appear to be acceptable as no person, especially a literate person, can engage himself in an occupation or work where monthly income would be only Rs. 75 Rs. 80 in this period of inflation.

(b) From the documents on record it clearly appeared that the said Jalpa Prasad (petitioner herein) had agriculture and houses and shop situated in Bhagwant Nagar in Unnao District, and the petitioner was earning income from the same. The petitioner (the said Jalpa Prasad) also had several houses in Kanpur District.

(c) Another portion of the premises in question (namely, No. 50/89Naughara, Kanpur) was in the tenancy of one Bholanath Agrawal. Likely vacancy was reported in respect of the said portion during the pendency of the said Rent Appeal No. 78 of 1982, and the said portion was allotted to one Manjit Singh on 2631983. Had the need of the said Jalpa Prasad (petitioner herein) been bona fide, he would have taken effective steps for getting the said vacant portion released in his favour.

The version of the said Jalpa Prasad (petitioner herein) that he got the information very late regarding vacation of the said portion by Bholanath Agrawal, and the allotment thereof in favour of the said Manjit Singh, did not appear to be believable.

As regards the revision stated to have been filed by the said Jalpa Prasad (petitioner herein) against the allotment made in favour of the said Manjit Singh, the said revision admittedly appeared to have been filed after great delay, and the same created doubt regarding bona fide need of the petitioner (the said Jalpa Prasad). While the said Smt. Sarju Devi was residing on the second floor of the premises in question, the petitioner (the said Jalpa Prasad), his son Vinod Kumar, and other members of his family were residing in Bhagwant Nagar, Unnao.

Coming now to the submissions made by the learned counsel for the parties on the question of bona fide need, Shri P.N. Saxena, learned senior counsel appearing for the petitioner submits that the Prescribed Authority as well as the Appellate Authority while dealing with an application for release under Section 21(1)(a) of the Act are required to record the findings on the question of bona fide need and the question of comparative hardships separately. It is submitted that the Appellate Authority in the present case did not deal with the question of bona fide need and the question of comparative hardships separately. Instead, the question of bona fide need has been considered intermingling the same with the question of comparative hardships.

It is further submitted by Shri Saxena that the Appellate Authority proceeded illegally and on irrelevant considerations in deciding the question of bona fide need. None of the circumstances considered by the Appellate Authority, the submission proceeds, militated against the bona fide need setup by the petitioner (the said Jalpa Prasad).

It is submitted by Shri Saxena that the circumstance that the said Vinod Kumar, son of the petitioner, was working for Peerless Company on commission basis, could not lead to the conclusion that need of the petitioner for the said son, Vinod Kumar, was not bona fide. It is further submitted that the petitioner had filed documents from the said company showing that the petitioner''s son, Vinod Kumar, had earned only Rs. 971/ during the whole year from commission, and the same was too meagre an amount. It is submitted that the Appellate Authority disbelieved the said version of the petitioner on pure conjectures and surmises that a literate person could not work for such a low amount as Rs. 75/ Rs. 80 per month. It is submitted by Shri Saxena that no documentary evidence against the said version of the petitioner was filed by the said Dr. Sambhu Dayal or his successorsininterest, namely, respondent Nos. 1 to 6. Only an affidavit sworn on 1111983 was filed by the said Dr. Shambhu Dayal (predecessorininterest of the respondent Nos. 1 to 6) in the said Rent Appeal No. 78 of 1982 before the Appellate Authority, interalia, alleging that the said Vinod Kumar was attached to and engaged in Peerless Company as Field Officer and he was having an income of Rs. 5,000/ per annum or thereabout, and that the employer of the said Vinod Kumar had refused to issue the required certificate. Thus, the submission of Shri Saxena proceeds, no documentary evidence was brought on record by the said Dr. Shambhu Dayal (predecessorininterest of the respondent Nos. 1 to 6) or by the respondents 1 to 6 to substantiate the said version made in the affidavit sworn on 11 11983.

It is further submitted by Shri Saxena that while the Appellate Authority disbelieved the version of the petitioner regarding the annual income of the said Vinod Kumar on pure conjunctures and surmises, but it did not record any specific finding as to what was the income of the said Vinod Kumar from his engagement as Agent in the said Peerless Company.

It is further submitted by Shri Saxena that the said son Vinod Kumar could not be expected to sit idle during the long pendency of the release application, and if he engaged himself in some work for the time being, it could not mean that his bona fide need had ceased to exist. Reliance is placed on a decision of this Court in Anand Babu alias Anand Swaroop v. 3rd Additional District Judge, Jalaun at Orai and others, 2000(2) JCLR 48 (All) : 2000 (1) ARC 405 (paragraph 7).

As regards the circumstance (b), mentioned above, relied upon by the Appellate Authority in recording the finding on the question of bona fide need, namely, regarding the petitioner having agriculture, houses and shop in Bhagwant Nagar, DistrictUnnao and earning income therefrom and regarding the petitioner having several houses in Kanpur District, it is submitted by Shri Saxena that the Appellate Authority recorded the finding in this respect without any discussion regarding the evidence on record even though the Prescribed Authority had recorded contrary findings in its judgment and order dated 251 1982 on a detailed consideration of the material on record. It is further submitted by Shri Saxena that the Appellate Authority has not recorded any specific finding as to the identity/extent of the alleged agricultural land or houses or shop of the petitioner in Bhagwant Nagar, DistrictUnnao, nor has any finding been recorded regarding the identity of the alleged several houses of the petitioner in Kanpur District. It is further submitted by Shri Saxena that no specific finding has been recorded by the Appellate Authority regarding the quantum of income of the petitioner from the alleged agriculture and/or rent.

It is further submitted by Shri Saxena that merely because the petitioner was having the alleged agricultural income and/or rental income, did not preclude the petitioner from engaging himself in business. As the petitioner is not engaged in any business, the need setup by the petitioner for engaging himself in business was evidently bona fide.

It is submitted that bonafide need means that an accommodation is genuinely, sincerely and in good faith required by the landlord. Need is bona fide if it cannot be termed to be malafide or dishonest or with oblique motive. Reliance in this regard is placed by the learned senior counsel for the petitioner on the following decisions:

(1) Chandra Kr. Sah and another v. District Judge and others, AIR 1976 Allahabad 328 (F.B.) (paragraph 19).

(2) Smt. Dyman Prabha Dogra v. Smt. Kusum Lata Srivastava and ano ther, 1990 (1) ARC 148 (paragraph 11).

(3) Baidyanath Das v. District Judge, Allahabad and others, 1991 (1) ARC 283 (paragraph 3).

As regards the circumstance (c), mentioned above, relied upon by the Appellate Authority for deciding the question of bona fide need, namely, another portion of the premises in question falling vacant and the allotment thereof in favour of Manjit Singh, and no effort having been made by the petitioner for release of the said other portion, it is submitted by Shri Saxena, learned senior counsel for the petitioner, that the facts regarding the said other portion in the premises in question falling vacant and the allotment thereof in favour of Manjit Singh came in the knowledge of the petitioner very late, and when the petitioner came to know regarding the said facts, the petitioner filed revision in the matter. It is submitted that the Appellate Authority on pure conjectures and surmises disbelieved the version of the petitioner in this regard.

In the alternative, Shri Saxena submits that as per the own showing of the respondent Nos. 1 to 6 and their predecessorin interest Dr. Shambu Dayal, the likely vacancy in respect of the said other portion in the premises in question was reported on 2031983, i.e., during the pendency of the said Rent Appeal No. 78 of 1982, and the allotment order in favour of the said Manjit Singh was passed on 2631983 i.e. during the pendency of the said Rent Appeal. It is submitted by Shri Saxena that the disputed accommodation had already been released in favour of the petitioner by the Prescribed Authority by its judgment and order dated 2511982, and since the need of the petitioner was for only one shop, he could not have applied for release of the said other portion which fell vacant during the pendency of the said Rent Appeal No. 78 of 1982. It is submitted by the learned senior counsel for the petitioner that the release order in respect of the disputed accommodation having already been passed by the judgment and order dated 2511982 passed by the Prescribed Authority on the ground of bona fide need of the petitioner, the petitioner could not have agitated his bona fide need in respect of the other portion which fell vacant during the pendency of the said Rent Appeal No. 78 of 1982. Once the release order had already been passed in respect of the disputed accommodation on the ground of bona fide need of the petitioner, the submission proceeds, it was neither permissible nor necessary for the petitioner to file release application in respect of any other portion falling vacant during the pendency of the said Appeal before the Appellate Authority. The fact that the petitioner did not seek release of the other portion in the premises in question which fell vacant during the pendency of the Appeal, did not in any manner show that the need of the petitioner for the disputed accommodation was not bona fide.

In reply, Miss. Usha Kiran, learned counsel for the respondent Nos. 1 to 6 submits that the finding on the question of bona fide need recorded by the Appellate Authority in the said judgment and order dated 2491988 was passed on consideration of relevant facts and circumstances, and the said finding being finding of fact, no interference was called for by this Court in exercise of its writ jurisdiction under Article 226 of the Constitution of India.

Referring to the said affidavit sworn on 1111983 filed by the said Dr. Shambhu Dayal (predecessorininterest of the respondent Nos. 1 to 6) before the Appellate Authority in the said Rent Appeal No. 78 of 1982 (a copy whereof has been filed before this Court as Annexure4 to the aforementioned supplementary affidavit sworn on 2682002 filed on behalf of the respondent Nos. 1 to 6), it is submitted by Miss. Usha Kiran, learned counsel for the respondent Nos. 1 to 6 that the said Vinod Kumar was attached and engaged in Peerless Company as Field Officer, and he was having an income of Rs. 5,000/ per annum or thereabout. Learned counsel for the respondent Nos. 1 to 6 has, however, not shown any document to substantiate the said assertions.

It is submitted by the learned counsel for the respondent Nos. 1 to 6 that as the said Vinod Kumar was already working with Peerless Company, the need set up in respect of the said Vinod Kumar was evidently not bona fide.

Referring to the supplementary counter affidavit sworn on 7th August, 2002 filed on behalf of the respondent Nos. 1 to 6, the learned counsel for the respondent Nos. 1 to 6 submits that the said Vinod Kumar, son of the petitioner (the said Jalpa Prasad), for whom the need was setup in the release application was very seriously ill since past several years and he was even unable to walk properly or even sit most of the time and he was bedridden, therefore, the need setup for the said Vinod Kumar, if any, no longer exists. However, Miss. Usha Kiran, learned counsel for the respondent Nos. 1 to 6 has not referred to any document to substantiate the said averments regarding the illness of the said Vinod Kumar.

It is further submitted by Miss. Usha Kiran, learned counsel for the respondent Nos. 1 to 6 that the details of the agricultural land, houses and shop of the petitioner in Bhagwant Nagar, District Unnao as well as the houses of the petitioner in Kanpur, were given on behalf of the respondent Nos. 1 to 6 and their predecessorininterest Dr. Shambhoo Dayal. It is further submitted that as the petitioner was having agricultural income and rental income, his need for starting business in the disputed accommodation was not bona fide. The Appellate Authority rightly relied on the said circumstance in deciding the question of bona fide need.

As regards the circumstance (c), mentioned above, relied upon by the Appellate Authority in deciding the question of bona fide need, it is submitted by Miss. Usha Kiran, learned counsel for the respondent Nos. 1 to 6 that the Appellate Authority was right in relying upon the said circumstance. It is submitted that had the need of the petitioner been bona fide, he would have certainly sought release of the other portion in the premises in question which fell vacant during the pendency of the said Rent Appeal No. 78 of 1982. As the petitioner did not make any effort to get the said other portion released in his favour, the submission proceeds, it is evident that the need of the petitioner for the disputed accommodation was not bona fide.

I have considered the submissions made by the learned counsel for the parties.

Before proceeding to deal with the submissions made by the learned counsel for the parties in regard to the findings recorded on the questions of bona fide need and comparative hardships, it is necessary to briefly notice the principles governing the scope of interference by the High Court in exercise of its writ jurisdiction under Article 226 of the Constitution of India with the findings of fact recorded by the authorities below on the questions of bona fide need and comparative hardships.

Taking up first the question of bona fide need, it is true that the question of bona fide need is a question of fact, and the finding recorded on the said question being finding of fact, is normally not interfered with by the High Court in exercise of its writ jurisdiction under Article 226 of the Constitution of India, unless such finding is shown to be perverse or patently illegal.

It is also well established that the Prescribed Authority as well as the Appellate Authority are required to decide the question of bona fide need taking into account the relevant considerations and factors, and also taking into account the established legal position for deciding the said question. In case, the Prescribed Authority or the Appellate Authority decides the question of bona fide need without taking into account the relevant factors and considerations for deciding such question or without appreciating and considering the correct legal position for decision on the said question, the finding recorded on the question of bona fide need would suffer from patent illegality, and such finding would be liable to be interfered with under Article 226 of the Constitution of India. Similarly, if the finding on the question of bona fide need is recorded by the Prescribed Authority or the Appellate Authority on assumptions and irrelevant considerations or is recorded without there being any evidence on record, such finding would be a perverse finding and would be liable to be interfered with under Article 226 of the Constitution of India.

In case, however, the finding on the question of bona fide need is recorded taking into account the relevant considerations and factors and on a correct appreciation of legal position, such a finding would not be liable to be interfered with under Article 226 of the Constitution of India on the ground that the Prescribed Authority or the Appellate Authority ought to have taken a different view of the evidence on record.

Similar principles apply to the question of comparative hardships, which is also a question of fact, and the finding recorded thereon is also finding of fact.

In order to deal with the submissions made by the learned counsel for the parties in regard to the finding recorded on the question of bona fide need, it is necessary to refer to the provisions of Section 21 of the Act, which is quoted below:

�21. Proceedings for release of building under occupation of tenant. (1) The prescribed authority may, on an application of the landlord in that behalf, order the eviction of a tenant from the building under tenancy or any specified part thereof if it is satisfied that any of the following grounds exists namely

(a) that the building is bona fide required either in its existing form or after demolition and new construction by the landlord for occupation by himself or any member of his family, or any person for whose benefit it is held by him, either for residential purposes or for purposes of any profession, trade or calling, or where the landlord is the trustee of a public charitable trust, for the objects of the trust ;

(b) that the building is in a dilapidated condition and is required for purposes of demolition and new construction :

Provided that where the building was in the occupation of a tenant since before its purchase by the landlord, such purchase being made after the commencement of this Act, no application shall be entertained on the grounds, mentioned in clause (a), unless a period of three years has elapsed since the date of such purchase and the landlord has given a notice in that behalf to the tenant not less than six months before such application, and such notice may be given even before the expiration of the aforesaid period of three years :

Provided further that if any application under clause (a) is made in respect of [any building let out exclusively for non residential purposes], the prescribed authority while making the order of eviction shall, after considering all relevant facts of the case, award against the landlord to the tenant [an amount not exceeding two years'' rent] as compensation and may, subject to rules, impose such other conditions as it thinks fit:

Provided also that no application under clause (a) shall be entertained:

(i) for the purposes of a charitable trust, the objects of which provide for discrimination in respect of its beneficiaries on the ground of religion, caste, or place of birth ;

(ii) in the case of any residential building, for occupation for business purposes ;

(iii) in the case of any residential building, against any tenant who is a member of the armed forces of the Union and in whose favour the prescribed authority under the Indian Soldiers (Litigation) Act, 1925 (Act No. IV of 1925) has issued a certificate that he is serving under special conditions within the meaning of Section 3 of that Act, or where he has died by enemy action while so serving then against his heirs:

[Provided also that the prescribed authority shall, except in cases provided for in the Explanation, take into account the likely hardship to the tenant from the grant of the application as against the likely hardship to the landlord from the refusal of the application and for that purpose shall have regard to such factors as may be prescribed].

Explanation. In the case of a residential building:

(i) where the tenant or any member of his family [(who has been normally residing with or is wholly dependent on him)] has built or has otherwise acquired in a vacant state or has got vacated after acquisition a residential building in the same city, municipality, notified area or town area, no objection by the tenant against an application under this subsection shall be entertained ;

[Note. For the purposes of this clause a person shall be deemed to have otherwise acquired a building, if he is occupying a public building for residential purposes as a tenant, allottee or licensee].

(ii) [* * *]

(iii) where the landlord of any building is

(i) a serving or retired Indian Soldier as defined in the Indian Soldiers (Litigation) Act, 1925 (IV of 1925), and such building was let out at any time before his retirement, or

(ii) a widow of such a soldier and such building was let out at any time before the retirement or death of her husband, whichever, occurred earlier,

and such landlord needs such building for occupation by himself or the members of his family for residential purposes, then his representation that he needs the building for residential purposes for himself or the members of his family shall be deemed sufficient for the purposes of clause (a), and where such landlord owns more than one building this provision shall apply in respect of one building only.]�

(iv) [* * *]

[(1A) Notwithstanding anything contained in Section 2, the prescribed authority shall, on the application of a landlord in that behalf, order the eviction of a tenant from any building under tenancy, if it is satisfied that the landlord of such building was in occupation of a public building for residential purposes which he had to vacate on account of the cessation of his employment:

Provided that an application under this subsection may also be given by a landlord in occupation of such public building at any time within a period of one year before the expected date of cessation of his employment, but the order of eviction on such application shall take effect only on the date of his actual cessation.]

(2) The prescribed authority may on an application of the landlord in that behalf order the eviction of a tenant from any surplus land appurtenant to the building under tenancy if it is satisfied that the land is required for constructing one or more new buildings, or for dividing it into several plots with a view to the sale thereof for purposes of construction of new buildings, and in either case, that the competent authority under any law for the time being in force has approved a plan for the said purpose.

Explanation. Where the appurtenant land including passage exceeds double the covered area of the building, excess area shall be deemed to be surplus land.

(3) No order shall be made under subsection (1) or subsection (1A) or subsection (2), except after giving to the parties concerned a reasonable opportunity of being heard:

Provided that where the tenant being a servant of Government or of any local authority or any public sector corporation does not contest the application, then a reasonable opportunity of being heard shall be given to the District Magistrate, who shall have the right to oppose the application.]

(4) An order under [subsection (1), or subsection (1A) or sub section (2)], may be made notwithstanding that the tenancy has not been determined:

Provided that no such order shall be made in the case of tenancy created for a fixed term by a registered lease before the expiry of such term.

(5) On an order being made under [subsection (1), or subsection (1A) or subsection (2)], the building or part of appurtenant land, as the case may be, shall stand released in favour of the landlord:

Provided that on the occurrence of any of the circumstances mentioned in Section 24, any building or part thereof (but not appurtenant land alone) released as above, shall without prejudice to the provisions of Section 24, be deemed to become again subject to allotment in accordance with Chapter III.

(6) On the expiration of a period of thirty days from an order under [subsection (1) or subsection (1A) or subsection (2)], the tenancy of the tenant shall stand determined in its entirety or, as the case may be, in respect of any part of appurtenant land released in favour of the landlord, and in the latter case, the rent payable for the remainder of the building under tenancy shall be such as may be determined under Section 8.

[(7) Where during the pendency of an application under clause (a) of subsection (1), the landlord dies, his legal representatives shall be entitled to prosecute such application further on the basis of their own need in substitution of the need of the deceased.

(8) Nothing in clause (a) of subsection (1) shall apply to a building let out to the State Government or to a local authority or to a public sector corporation or to a recognized educational institution unless the Prescribed Authority is satisfied that the landlord is a person to whom clause (ii) or clause (iii) of the Explanation to subsection (1) is applicable:

Provided that in the case of such building the District Magistrate may, on the application of the landlord, enhance the monthly rent payable therefore to a sum equivalent to onetwelfth of ten percent of the market value of the building under the tenancy, and the rent so enhanced shall be payable from the commencement of the month of tenancy following the date of the application:

Provided further that a similar application for further enhancement may be made after the expiration of a period of five years from the date of the last order of enhancement.]�

Section 21(1)(a) of the Act thus, inter alia, provides that the prescribed authority may release the building in favour of the landlord, if the same is �bona fide required� by the landlord. In other words, the building may be released in favour of the landlord if there is bona fide need of the landlord.

Fourth proviso to Section 21(1) of the Act makes it mandatory for the prescribed authority to take into account the likely hardship to the tenant from the grant of the release application as against the likely hardship to the landlord from the refusal of the release application. It is further provided that for the purpose of comparison of hardships, the prescribed authority �shall have regard to such factors as may be prescribed� (i.e., prescribed by the Rules framed under the Actsee Section 3(e) of the Act).

Rule 16 of the Rules framed under the Act has evidently been framed with reference to the Fourth proviso to Section 21(1) of the Act.

Explanation to Fourth proviso to Section 21(1) of the Act lays down the exceptions where the comparison of hardships is not to be done by the prescribed authority.

It is thus evident that the prescribed authority as well as the Appellate Authority (i.e., the authorities below) are required to record findings on the question of bona fide need and the question of comparative hardships separately. While examining the question of bona fide need, the authorities below are required to consider only the need of the landlord and decide as to whether the same is bona fide and genuine, or not. While considering the question of bona fide need of the landlord, there is no occasion for the authorities below to consider the question of need of the tenant and compare the same with the need of the landlord. It is only when the authorities below proceed to consider the question of comparative hardships after considering the question of bona fide need of the landlord that the authorities below are required to compare the hardships which would be suffered by the landlord in case the release application is rejected visavis the hardships which would be suffered by the tenant in case the release application is allowed in view of the Fourth proviso to Section 21(1) of the Act.

In the present case, a perusal of the judgment and order dated 2491988 passed by the Appellate Authority shows that the Appellate Authority has considered the question of bona fide need designating the same as the question of comparative need. The assumption of the Appellate Authority that it was required to decide the question of comparative need was evidently erroneous. As noted above, the authorities below are not required to consider the question of need of the tenant.

However, even though, the Appellate Authority made a wrong assumption that it was required to decide the question of comparative need, it recorded finding on the question of bona fide need without adverting to the need of the tenant and thereafter, the Appellate Authority proceeded to decide the question of comparative hardships. Hence, the erroneous assumption made by the Appellate Authority that it was required to decide the question of comparative need did not vitiate the finding recorded by the Appellate Authority on the question of bona fide need on the said ground. Therefore, the submission of Shri Saxena, learned senior counsel for the petitioner that the Appellate Authority intermingled the questions of bona fide need and comparative hardships, in my view, cannot be accepted.

It may, however, be added that even though the Appellate Authority considered the question of bona fide need and the question of comparative hardship separately, but the findings recorded by the Appellate Authority on the said questions suffer from illegalities, as will be discussed presently.

As noted above, the building may be released in favour of the landlord if there is �bona fide need� or �bona fide requirement� of the landlord. What is the true import of the expression �bona fide need� or bona fide requirement�

In Chandra Kumar Sah and another v. District Judge and others, AIR 1976 Allahabad 328 (FB) (supra), relied upon by the learned counsel for the petitioner, it was laid down as follows (paragraphs 18 and 19 of the said AIR):

�(18) The words �bona fide requirement of landlord� came up for interpretation in the case of Mattu Lal v. Radhey Lal, AIR 1974 SC 1596, and their Lordships of the Supreme Court observed :

�.................mere assertion on the part of the landlord that he requires the nonresidential accommodation in the occupation of the tenant for the purpose of starting or continuing his own business is not decisive. It is for the Court to determine the truth of the assertion and also whether it is bona fide. The test which has to be applied is an objective test and not a subjective one..........................The word `required'' signifies that mere desire on the part of the landlord is not enough but there should be an element of need and the landlord must show the burden being upon him that he genuinely requires the nonresidential accommodation for the purpose of starting or continuing his own business.�

The aforesaid discussion makes it clear that the ''bona fide requirement'' means the genuine or reasonable need of the landlord.

�(19) It is thus clear that if the claim of the landlord is not dishonest and he has no oblique motive or is not for any designed purpose of evicting the tenant, his need should be held to be bona fide. There is nothing in the provisions of the Act to suggest that a landlord even though bona fide requiring an accommodation for his own occupation may not be allowed to occupy it himself; it is not one of the aims and objects of the Act to prevent a landlord''s occupying an accommodation himself even though he wants to occupy it himself and does not want to profiteer or to take unconscionable advantage of the shortage of accommodation.�

In Mst. Bega Begum and others v. Abdul Ahad Khan, AIR 1979 SC 272, their Lordships of the Apex Court laid down as follows (paragraph 13 of the said AIR) :

�(13) Moreover, Section 11 (1)(h) of the Act uses the words `reasonable requirement'' which undoubtedly postulate that there must be an element of need as opposed to a mere desire or wish. The distinction between desire and need should doubtless be kept in mind but not so as to make even the genuine need as nothing but a desire as the High Court has done in this case. It seems to us that the connotation of the term need or `requirement'' should not be artificially extended nor its language so unduly stretched or strained so as to make it impossible or extremely difficult for the landlord to get a decree for eviction. Such a course would defeat the very purpose of the Act, which affords the facility of eviction of the tenant to the landlord on certain specified grounds. This appears to us to be the general scheme of all the Rent Control Acts, prevalent in other States in the country. This Court has considered the import of the word `requirement'' and pointed out that it merely connotes that there should be an element of need.�

In N.S. Dutta and others v. The VIIth Additional District Judge, Allahabad and others, 1984(1) ARC 113, a learned Single Judge of this Court held as follows (paragraphs 7, 8,9,10,11,12 and 13):

�(7) The expression �bona fide required� appearing in the context of Section 21 (1) (a) has received judicial interpretation in various pronouncements. The assessment has to be objective depending upon the facts and circumstances of the case. The word �required� it was pointed in Mattu Lal v. Radhey Lal, AIR 1974 SC 1596, signifies that mere desire on the part of the landlord is not enough, but there should be an element of need and the landlord must show that he genuinely required nonresidential accommodation for purposes of starting or continuing his own business. (See also Ajit Prasad v. IVth Addl. District Judge, Meerut, 1979 ARC 73). The need of the landlord does not, however, have to be shown as absolute. In Smt. Gindori Devi v. IInd Addl. District Judge & others, 1979 (UP) RCC 599, at page 601 it was held:

�It would suffice to mention that a person is said to need a premises bona fide if he requires it honestly. Similarly, the word �required� has also been interpreted in several cases, and the connotation of the said word shows that the landlord must need the premises. In order to succeed in such an application, it is not necessary that the landlord must be on the streets. The connotation of the word �need� or �requirement� should not be unnecessarily or artificially extended so as to give it a meaning that a landlord cannot get a premises released unless his requirement is absolute. No doubt, the question of need of a landlord is to be decided objectively and its decision should not be based on the ipse dixit of a landlord, but that does not mean that he must stand on extreme need before he could succeed.�

(8) In Jayant Kumar v. Prescribed Authority & others, 1979 (UP) RCC 132, it was reiterated that:

�It is, however, not necessary that the landlord must stand in absolute need of the property. The requirement of law is that the need of a landlord must be honest and in good faith. It is not correct that a landlord cannot succeed unless he is found in an extreme need.�

(9) Mere desire or absolute need or necessity are both, it has been held, erroneous approaches in this behalf, vide Janki Pd. v. IInd Addl District Judge & others, 1980 (UP) RCC 602. The word ''bona fide'' means genuinely, sincerely i.e. in good faith in contradiction to mala fide. A Full Bench of this Court construed this to mean to genuinely or in good faith'' and conveying an idea of absence of any intent to deceive Chandra Kumar Sah v. District Judge, Varanasi, AIR 1976 Alld. 328: 1977 ARC 142 FB. It will not be bona fide requirement of the landlord if release is sought for an ulterior purpose or fanciful whim. Vide Dr. Sita Ram Gandhi v. District Judge, Meerut, 1978 (2) All India RCJ 326 ; Smt. Kamla Ahuja v. VIIth Addl. District Judge, Meerut & others, 1981 ARC 371.

(10) In Bega Begum and others v. Abdul Ahmad Khan and others, (1979) 1 S.C.C. 275, Section 11 (1) (h) of the Jammu & Kashmir Houses and Shops Rent Control Act, 1966 that came up for interpretation read thus :

�........where the house or shop is reasonably required by the landlord either for purposes of building or rebuilding, or for his own occupation or for the occupation of any person for whose benefit the house or shop is held.

Explanation. The Court in determining the reasonableness of requirement for purposes of building or rebuilding shall have regard to the comparative public benefit or disadvantage by extending or diminishing accommodation, and in determining reasonableness of requirement for occupation shall have regard to the comparative advantage or disadvantage of the landlord or the person for whose benefit the house or shop is held and of the tenant.�

(11) The house, in that case, was required for the personal residence or occupation of all the three plaintiffs who admittedly were the owners of the house. It was held that the fact that the plaintiffs wanted to occupy the property for running a hotel would not take their case out of the ambit of personal necessity. The meaning that their Lordships assigned to the words ''reasonable requirement'' appearing in Section 11 (1)(h) is also of considerable significance for purposes of the instant case. It was laid :

�Moreover, Section 11 (h) of the Act uses the words `reasonable requirement'' which undoubtedly postulate that there must be an element of need as opposed to a mere desire or wish. The distinction between desire and need should doubtless be kept in mind but not so as to make even the genuine need as nothing but a desire as the High Court has done in this case. It seems to us that the connotation of the term `need'' or `requirement'' should not be artificially extended nor its language so unduly stretched or strained as to make it impossible or extremely difficult for the landlord to get a decree for eviction. Such a course would defeat the very purpose of the Act which affords the facility of eviction of the tenant to the landlord on certain specified grounds. This appears to us to be the general scheme of all the Rent Control Acts prevalent in other States in the country. This Court has considered the import of the word `requirement'' and pointed out that it merely connotes that there should be an element of need.�

(12) This interpretation of the Supreme Court has been widely followed by this Court in construing �bona fide required� used in Section 21 (1)(a), M/s. Gur Narain Jagat Narain & Co. v. M/s. Motor & General Sales Ltd. & others, 1980 ALJ 508 ; Smt. Kamla Ahuja, 1981 ARC 371 (supra) are some of them in point.

(13) Viewed in the light of the above, the Court has in this case to consider whether the respondent landlord does genuinely intend running a Hotel in this premises. Is his contention that his son would start a Hotel herein fake or mere pretext ? Has this been set up dishonestly or with an oblique motive ? And secondly, whether for the purpose he does stand in need of this building being vacated? This would, in my opinion, be the correct approach to be issue of �bona fide required�.........................�

In Smt. Dyman Prabha Dogra v. Smt. Kusum Lata Srivastava and another, 1990 (1) ARC 148 (supra), relied upon by the learned counsel for the petitioner, a learned Single Judge of this Court held as follows (paragraph 11 of the said ARC):

�(11) The connotation of the term `need'' and `requirement'' postulates that there must be an element of need as opposed to mere desire or wish. In the case of Smt. Gindori Devi v. IInd Addl. District Judge and others, 1979 (U.P.) RCC 599, it was observed thus:

�It would suffice to mention that a person is said to need a premises bona fide if he requires it honestly. Similarly the word `required'' has been interpreted in several cases and the connotation of the said word shows that the landlord must need the premises. In order to succeed in such an application it is not necessary that the landlord must be on the streets. The connotation of the word `need'' or `requirement'' should not be unnecessarily or artificially extended so as to give it a meaning that the landlord cannot get a premises released unless his requirement is absolute�.

A Full Bench of this Court construed this to mean ''genuinely or in good faith'' and conveyed an idea of absence of any intent to deceive (see Chandra Kumar Sah v. District Judge, Varanasi, AIR 1976 All 328). It will not a bona fide requirement if the release is sought for an ulterior purpose or fanciful whim. Thus the word ''bona fide'' has been held to mean genuinely, sincerely i.e. in good faith in contradiction to mala fide.�

In Shiv Sarup Gupta v. Dr. Mahesh Chandra Gupta, (1999) 6 SCC 222, it was laid down as under (paragraphs 12, 13, 19 and 20 of the said SCC) :

�(12) A perusal of Section 14 of the Act shows that the law has imposed restrictions on the recovery of possession of any premises by a landlord from a tenant notwithstanding any law or contract to the contrary. However, an order for recovery of possession is permissible on one or more of the specified grounds. One such ground is the premises let for residential purposes being required bona fide by the landlord for occupation as residence for himself or for any member of his family dependent on him. What is a bona fide requirement is not defined in the Act. The words �need� and �require� both denote a certain degree of want with a thrust within demanding fulfilment. �Need� or �requirement� qualified by the word �bona fide� or �genuine� preceding as an adjective is an expression often used in rent control laws. �Bona fide or genuine need� of the landlord or that the landlord �genuinely requires� or �requires bona fide� an accommodation for occupation by or use for himself is an accepted ground for eviction and such expression is often employed by rent control legislation draftsman. The two expressions are interchangeable in practice and carry the same meaning.

(13) Chambers 20th Century Dictionary defines bona fide to mean �in good faith genuine�. The word �genuine� means �natural : not spurious: real : pure : sincere�. In Law Dictionary, Mozley and Whitley define bona fide to mean �good faith, without fraud or deceit�. Thus the term bona fide or genuinely refers to a state of mind. Requirement is not a mere desire. The degree of intensity contemplated by �requires� is much more higher than in mere desire. The phrase �required bona fide� is suggestive of legislative intent that a mere desire which is the outcome of whim or fancy is not taken note of by the rent control legislation. A require in the sense of felt need which is an outcome of a sincere, honest desire, in contradistinction with a mere pretence or pretext to evict a tenant, on the part of the landlord claiming to occupy the premises for himself or for any member of the family would entitle him to seek ejectment of the tenant. Looked at from this angle, any setting of the facts and circumstances protruding the need of the landlord and its bona fides would be capable of successfully withstanding the test of objective determination by the Court. The Judge of facts should place himself in the armchair of the landlord and then ask the question to himself whether in the given facts substantiated by the landlord the need to occupy the premises can be said to be natural, real, sincere, honest. If the answer be in the positive, the need is bona fide. The failure on the part of the landlord to substantiate the pleaded need, or, in a given case, positive material brought on record by the tenant enabling the Court drawing an inference that the reality was to the contrary and the landlord was merely attempting at finding out a pretence or pretext for getting rid of the tenant, would be enough to persuade the Court certainly to deny its judicial assistance to the landlord. Once the Court is satisfied of the bona fides of the need of the landlord for the premises or additional premises by applying objective standards then in the matter of choosing out of more than one accommodation available to the landlord his subjective choice shall be respected by the Court. The Court would permit the landlord to satisfy the proven need by choosing the accommodation which the landlord feels would be most suited for the purpose; the Court would not in such a case thrust its own wisdom upon the choice of the landlord by holding that not one but the other accommodation must be accepted by the landlord to satisfy his such need. In short, the concept of bona fide need or genuine requirement needs a practical approach instructed by the realities of life. An approach either too liberal or too conservative or pedantic must be guarded against.

(19) In Ram Dass v. Ishwar Chander, this Court has held that (SCC pp. 13435, para 11)

�The need of the landlord should be genuine and honest, conceived in good faith; and that, further, the Court must also consider it reasonable to gratify that need, Landlord''s desire for possession, however honest it might otherwise be, has inevitably a subjective element in it and that, that desire, to become a `requirement'' in law must have the objective element of a `need''. It must also be such that the Court considers it reasonable and, therefore, eligible to be gratified. In doing so, the Court must take all relevant circumstances into consideration so that the protection afforded by law to the tenant is not rendered merely illusory or whittled down.�

(20) In Sarla Ahuja v. United India Insurance Co. Ltd., this Court has held that the Rent Controller should not proceed on the assumption that the landlord''s requirement is not bona fide. When the landlord shows a prima facie case a presumption that the requirement of the landlord is bona fide is available to be drawn. It is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without giving possession of the tenanted premises. While deciding the question of bona fides of the requirement of the landlord, it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted himself.�

In Ragavendra Kumar v. Firm Prem Machinery and Company, (2000) 1 SCC 679, their Lordships of the Supreme Court held as follows (paragraph 10 of the said SCC):

�(10)..............................................It is a settled position of law that the landlord is the best judge of his requirement for residential or business purpose and he has got complete freedom in the matter. (See Prativa Devi v. T.V. Krishnan). In the case in hand the plaintiff landlord wanted eviction of the tenant from the suit premises for starting his business as it was suitable and it cannot be faulted.�

In Siddalingamma and another v. Mamtha Shenoy, JT 2001 (9) SC 268, it was laid down as under (paragraph 9 of the said JT) :

�(9) Rent control legislation generally leans in favour of tenant, it is only the provision for seeking eviction of the tenant on the ground of bona fide requirement of landlord for his own occupation or use of the tenanted accommodation which treats the landlord with some sympathy. In Shiv Sarup Gupta v. Dr. Mahesh Chand Gupta, [(1999) 6 SCC 222] this Court has held that a bona fide requirement must be an outcome of a sincere and honest desire in contradistinction with a mere pretext for evicting the tenant on the part of the landlord claiming to occupy the premises for himself or for any member of the family which would entitle the landlord to seek ejectment of the tenant. The question to be asked by a judge of facts, by placing himself in the place of the landlord, is, whether in the given facts proved by material on record, the need to occupy the premises can be said to be natural, real, sincere and honest ? If the answer be in the positive, the need is bona fide. The concept of bona fide need or genuine requirement needs a practical approach instructed by the realities of life. An approach either too liberal or too conservative or pedantic must be guarded against. If the landlord wishes to live with comfort in house of his own, the law does not command or compel him to squeeze himself and dwell into lesser premises so as to protect the tenant''s continued occupation in tenancy premises. In Deena Nath v. Pooran Lal, [(2001) 5 SCC 705], this Court has held that bona fide requirement has to be distinguished from a mere whim or fanciful desire. The bona fide requirement is in present and must be manifested in actual need so as to convince the Court that it is not a mere fanciful or whimsical desire.�

In G.C. Kapoor v. Nand Kumar Bhasin and others, 2001 (2) ARC 603 (SC), their Lordships of the Supreme Court held as follows (paragraph 9 of the said ARC):

�(9) It is settled position of law that bona fide requirement means that requirement must be honest and not tainted with any oblique motive and is not a mere desire or wish. In Dataraya Laxman Kamble v. Abdul Rasul Moulali Kotkunde and another, 1999 (4) SCC 1 : 1999 SCFBRC 292, this Court while considering the bona fide need of the landlord was of the view that when a landlord says that he needs the building for his own occupation, he has to prove it but there is no warrant for presuming that his need is not bona fide. It was also held that while deciding this question, Court would took into the broad aspects and if the Court feels any doubt about bona fide requirement, it is for the landlord to clear such doubt.�

In Narsingh Das Agarwal (Sri) (Since deceased) now represented by Annapurna Devi and others v. District Judge, Ballia and others, 2003(2) ARC 742 : 2003 (53) ALR 767, this Court referred to several decisions mentioned above, and concluded as follows (paragraphs 53 and 54 of the said ARC) :

�(53) �Following propositions, amongst others, emerge from the above decisions:

(1) The expressions �bona fide or genuine need� of the landlord or the landlord �genuinely requires� or �requires bona fide � an accommodation, carry the same meaning and are interchangeable in practice.

(2) The word �requires� or �need� shows that mere desire or wish on the part of the landlord is not enough. The word �requires� or �need� contemplate a much higher degree of intensity than in mere �desire� or �wish�. Both these words �need� and �require� denote a certain degree of want with a thrust within demanding fulfilment. There should be an element of necessity on the part of the landlord.

(3) The word �need� or �requires� is qualified by the word �bona fide� or �genuine�. Hence, the �need� or �requirement� setup by the landlord must be bona fide or genuine, i.e., sincere, honest and conceived in goodfaith in contradistinction to mala fide.

In case, the �need� or �requirement� setup by the landlord is tainted with any ulterior motive or is mere pretence or pretext to evict the tenant, then such �need� or �requirement� is not bona fide or genuine.

(4) While it is true that there must be an element of need or necessity as opposed to a mere desire or wish, the connotation of the terms �need� or �requirement� should not be artificially extended nor its language so unduly stretched or strained as to make it impossible or extremely difficult for the landlord to get a decree for eviction. It is not necessary for the landlord to show �extreme need� or �absolute need� for the accommodation.

Neither mere desire nor absolute need is the correct approach to the question of bona fide need.

(5) (a) The assessment regarding �bona fide need� or �bona fide requirement� of the landlord has to be objective depending upon the facts and circumstances of the case. The need of the landlord and its bona fides will have to be determined by the Court objectively having regard to the facts and circumstances of the case.

The judge of facts should place himself in the armchair of the landlord and then ask the question to himself whether in the given facts substantiated by the landlord the need to occupy the accommodation can be said to be natural, real, sincere, honest. If the answer be in the positive, the need is bona fide.

(b) Once the Court is satisfied of the bona fides of the need of the landlord for the accommodation or additional accommodation by applying objective standards then in the matter of choosing out of more than one accommodation available to the landlord his subjective choice shall be respected by the Court. The Court would permit the landlord to satisfy the proven need by choosing the accommodation which the landlord feels would be most suited for the purpose; the Court would not in such a case thrust its own wisdom upon the choice of the landlord by holding that not one but the other accommodation must be accepted by the landlord to satisfy his such need.

The landlord is the best judge of his requirement for residential or business purpose and he has got complete freedom in the matter.

(6) The concept of bona fide need or genuine requirement needs a practical approach instructed by the realities of life. An approach either too liberal or too conservative or pedantic must be guarded against.

(7) The Court should not proceed on the assumption that the landlord''s requirement is not bona fide. When the landlord shows a prima facie case, a presumption that the requirement of the landlord is bona fide is available to be drawn.

(8) It is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without giving possession of the tenanted accommodation. While deciding the question of bona fides of the requirement of the landlord, it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted himself.

If the landlord wishes to live with comfort in a house of his own, the law does not command or compel him to squeeze himself and dwell into lesser premises so as to protect the tenant''s continued occupation in tenancy.�

�(54) The authorities below should decide the question of bona fide need, with an open mind keeping in view the true import of the expression �bona fide need� or �bona fide requirement� as is evident from the above propositions. The authorities below should not approach the question of bona fide need with any preconceived notion or presumption, nor should the authorities below be swayed by any particular fact ignoring other relevant factors for deciding the question of bona fide need.�

Let us now consider the circumstances relied upon by the Appellate Authority in recording the finding on the question of bona fide need.

Taking up the circumstance (a), mentioned above, relied upon by the Appellate Authority in recording the finding on the question of bona fide need, namely, regarding the working of the said Vinod Kumar with Peerless Company, it will be noticed from a perusal of the impugned judgment and order dated 2491988 that while the Appellate Authority disbelieved the version of the petitioner regarding the income of the said Vinod Kumar being Rs. 971/ per annum on the assumption that no person, especially literate person, would engage himself in any occupation or work where the monthly income was Rs. 75 Rs. 80 in this period of inflation, the Appellate Authority did not record any specific finding as to what was the income of the said Vinod Kumar from his engagement in the said Peerless Company. It was accepted by the Appellate Authority, in the penultimate paragraph of its judgment, that the income of the said Vinod Kumar was dependent on the commission determined on the amount of insurance got made by the said Vinod Kumar. As regards the version of the said Dr. Shambhu Dayal and his successorsininterest, namely, respondent Nos. 1 to 6 regarding annual income of the said Vinod Kumar being Rs. 5,000/ or thereabout, no document, as noted above, has been referred to by the learned counsel for the respondent Nos. 1 to 6 to substantiate the said version.

In my opinion, it is not necessary to go into the conflicting versions regarding the annual income of the said Vinod Kumar from his engagement in the Peerless Company. The Appellate Authority, as noted above, accepted that the income of the said Vinod Kumar was dependent on the commission determined on the basis of quantum of insurance got made by the said Vinod Kumar. The engagement of the said Vinod Kumar with the Peerless Company was, thus, not in the nature of regular and full time employment. It is evident that the said Vinod Kumar took up the said work as he could not sit idle during the pendency of the release application. Merely because the said Vinod Kumar started working with the Peerless Company on commission basis, did not negative his need in respect of the disputed accommodation for starting cloth business.

In this regard, it is necessary to consider the legal position regarding bona fide need of the landlord for settling his son in independent business as emerges from various decisions discussed hereinafter.

In M/s. Pharma Traders and another v. VIIth Additional District Judge, Kanpur Nagar and others, 1992 (2) ARC 592, a learned Single Judge of this Court laid down as follows (paragraph 45 of the said ARC) :

�(45) There could be no manner of doubt that the release contemplated under Section 21 (1)(a) of the Act can be granted for settling in a new venture of the unengaged member of a family. There is nothing in the Act or policy underlying it, which may lead to any inference contrary to it. In the present case, the question of bona fide need of the disputed shop was the need to settle the third son of the landlady, Sanjay Kumar in an independent business. The need to set up a son in independent business has always been recognized as bona fide and genuine. Even if some members of the family of the landlord are engaged in the business that can not be an impediment for the grant of release of the accommodation for enabling the unemployed or unengaged member of the family to start business of his own or for augmenting income as each adult member of the family is entitled to work for his own independent existence and is further entitled to chose a vocation suiting his individual aptitude, education and qualification. There could be no manner of doubt that such release can also be granted to provide a source to augment the income of a family member, so that he may lead a decent life and cater to the needs of his own growing family�.

(Emphasis supplied)

In M/s. Deep Chand Nem Chand Jain and others v. The Prescribed Authority A.D.M.(B), Saharanpur and others, 1980 ARC 479, a learned Single Judge of this Court held as follows (paragraph 16 of the said ARC) :

�(16) I am not persuaded to accept the contention of Sri S.N. Kakker, as a proposition, that if some members of the family of the landlords are found engaged in any business earning profits, the building under tenancy ought not to be released for enabling the unemployed or unengaged members of the family to start business of their own in that building merely because the family as a circle or unit has some exiting business engagement. In my view, each adult ought to be legitimately entitled to work for his own independent existence and sustenance. He is entitled to choose a vocation or profession suiting his individual aptitude, education or qualification, capabilities and so forth. The need of such an unemployed member cannot, in my judgment, be dismissed by telling him that he must follow the line or profession of the other members of the family or try to get absorbed in the business already carried on by the family. Of course, such a need of the landlords will have to be balanced against the hardship likely to be caused to the tenants from the grant of the application�.

(Emphasis supplied)

In N.S. Dutta and others v. The VIIth Additional District Judge, Allahabad and others, 1984 (1)ARC 113, a learned Single Judge of this Court opined as follows (paragraphs 14, 15 and 16 of the said ARC):

�(14) Now there is no dispute that Harsh Tandon (now aged nearly 25) the only son of the landlordrespondent has completed his study and secured the degree of B. Com. and the Master of Business Administration from the University of Allahabad. When the petition was filed he was a student in the course of Master of Business Administration which was completed in 1979. The landlord contends that he has to settle the son and the latter is keen to run a Hotel. For the petitioners it is urged that the son might join his father in the jewellery shop and even that he is already assisting the respondent therein. Both the landlord and Harsh Tandon put in their affidavits before the Prescribed Authority specifying that the latter had absolutely no inclination to deal in ornaments and it is incorrect that he has had any concern with that business. It is also made clear that the landlord is only a partner in the Kashi Ornament House having 25% share against which there is no effective rebuttal. In believing these affidavits, the authorities below cannot be said to have erred in law or to have indulged in perversity. Even if it were assumed for the sake of arguments that Harsh Tandon assists the father in that business such a stop gap arrangement in the absence of his being able immediately to start the Hotel is entirely of no consequence. Ghanshyam Das v. VIth Addl. District & Sessions Judge, Meerut & others, 1982 (UP) RCC 650 : 1982 (2) ARC 195. The petitioners do not dispute that the respondent has the requisite financial capacity to make heavy investment for running a Hotel. It was stated that the respondent or his son have had no previous experience but that does not prevent making a beginning with a new venture.

(15) Sri Dayal, the learned counsel, submitted that the respondent has not produced accounts to show that the income that he used to have in pre 1952 era has dwindled. The contention is that the respondent''s earning is considerable still such as does not justify the son engaging himself in this kind of business. He cited the cases reported in 1981 ARC 30, Ved Prakash v. IIIrd Addl. District Judge, Bulandshahr etc. and M/s. Lalita Printers Stores v. IVth Additional District Judge and others, 1981 ARC 649, in this connection. Both these cases stand on different footing. In Ved Prakash (supra) the landlord''s case was that the sources of his income was insufficient for him to earn his livelihood; in the other too contention was that the income was not sufficient for reasonably comfortable living. The respondent in the instant case certainly does not plead that his son needs engagement in new business to make the two ends meet. In substance his averments amounts to this namely, that due to the Abolition of Zamindari, the Gold Control Act and the orders relating to this besides the restrictions placed under the Urban Land (Ceiling and Regulation) Act, 1976 his earning is not on the scale as it was in pre1952 days. The petitioners have disputed this as incorrect and maintained although without any source of personal knowledge that the respondents'' earning has not suffered any set back. We might assume that to be so and also draw adverse inference against the respondent due to the accounts of income being not submitted. But then that does not meet the point. Despite the resources of his father and other sources of income of the family, the son is entitled to look for and engage himself in an undertaking. That would be perfectly legitimate. In M/s. Deep Chand Nem Chand Jain & others v. The Prescribed Authority, A.D.M. (E), Saharanpur and others, 1980 ARC 479, brother A.N. Verma, J. observed:

�I am not persuaded to accept the contention of Sri S.N. Kakkar, as a proposition, that if some members of the family of the landlords are found engaged in any business earning profits, the building under tenancy ought not be released for enabling the unemployed or unengaged members of the family to start business of their own in that building merely because the family as a circle or unit has some existing business engagement. In my view, each adult ought to be legitimately entitled to work for his own independent existence and sustenance. He is entitled to choose a vocation or profession suiting his individual aptitude, education or qualification, capabilities and so forth. The need of such an unemployed member cannot, in my judgment, be dismissed by telling him that he must follow the line or profession of the other members of the family or try to get absorbed in the business already carried on by the family. Of course, such a need of the landlords will have to be balanced against the hardship likely to be caused to the tenants from the grant of the application.�

(16) I am in respectful agreement with this view. Subject, of course, to the question of comparative hardship being considered that I will do later, the respondent is within his rights in seeking to augment his income and in this there is no lack of bona fides. �

(Emphasis supplied)

In B. Balaiah v. Chandoor Lachaiah, AIR 1965 Andhra Pradesh 435 it was laid down as follows (paragraph 19 of the said AIR) :

�(19) In the instant case what is found by the Courts below is that the nonresidential building in question belongs to the joint family, where the petitioner as father and naturally the manager of the joint Hindu family is carrying on the business. It is also found that the son who has become major and who is a member of the joint Hindu family, intends to start a business in the same city. It is not in doubt that the son intends to bona fide commence the business. Whether the business is the same which his father is carrying on, or altogether a different business, makes little difference. It can in any case come either under sub clause (a) or subclause (b). It cannot be in doubt in the circumstances of the present case that the existing non residential building occupied by the father as the manager of the joint Hindu family where he is carrying on the business, is unsuitable and insufficient for the purpose of starting the business by the son.

Assuming therefore, that the nonresidential building which the petitioner is occupying is a joint family building in which along with the petitioner, the son also would be considered in occupation. It does not necessarily mean that the son can claim the building as his own or for that matter even the father can claim the entire building as his own. It must be realized that it belongs to all the coparceners for the time being. The son may be notionally in occupation of the nonresidential building belonging to the joint family but that cannot be a ground for rejecting the application. When it is held that he wants to start a business, it may be the same business which the petitioner is carrying on but the son''s requirement must be held to be the requirement of the father or of the joint family. It cannot be said in such case that the son is in possession of another non residential building which is his own or to the possession of which he is entitled. Admittedly he is not the exclusive owner of the nonresidential building occupied by the petitioner, but it belongs to the joint family.

It is immaterial in such a case whether the petition under Section 10 of the Act is filed by the father as a manager of the joint Hindu family or by the coparcener who bona fide intends to start a new business or intends to expand the business in the locality where the nonresidential building claimed is situated as in the instant case. As long as such requirement is bona fide, the petitioner can certainly claim for a direction for the eviction of the tenant. This interpretation of ours does not in any way go contrary to the interpretation which we have put on the second limb of that provision while considering the third requirement. We are, therefore, of opinion that a fathercummanager of a joint Hindu family, who is in occupation of a nonresidential building, can validly ask for eviction under Section 10 (3) (a) (iii) of the Act, of a tenant from another nonresidential building in the same city belonging to the family, on the ground that his undivided major son requires it for carrying on his business.�

(Emphasis supplied)

In Joginder Pal v. Naval Kishore Behal, (2002) 5 SCC 397, their Lordships of the Apex Court have laid down as follows (paragraphs 12, 23, 24, 32 and 33) :

�(12) In B. Balaiah v. Chandoor Lachaiah, Section 10(3)(a)(iii) of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 came up for consideration of the Division Bench. The landlord could seek a direction for recovery of possession of the building �for the purpose of a business which he is carrying on� or which �the landlord bona fide proposes to commence�. The Division Bench made a review of the decisions delivered by different High Courts under local rent control legislations and held that these expressions are not necessarily confined to the physical requirement of the landlord himself. Such expression ought to be construed liberally and not in a narrow way. They are susceptible to a wide meaning and include within the meaning of �own� not only the members of the landlord''s family but also those persons who are socially or economically dependent on him and whose responsibilities he has accepted. This is based on the necessity of realizing that the family in India, whether joint or separate, is the social unit of Indian civilization and it is of greater public importance to keep it together. The Division Bench concluded by holding that the expression �landlord� or �his� must include all normal emanations of the landlord so as to include his wife and children though on a strict construction of the expression, they may not be available to be included within �landlord himself. The requirement of a major son and a coparcener in a joint Hindu family intending to start a business was deemed to be the requirement of the landlord himself. This decision was cited with approval in Bega Begum case.

(23) The preceding reference to several decisions rendered by different High Courts under different State legislations is not intended by any means to be an exhaustive survey of available caselaw. We have set out only by way of illustrations the decisions on which we could lay our hands in the plethora of precedents to show the meaning assigned to the words �his own� generally by the High Courts in the country dealing with different fact situations. The judicial opinion leans entirely in favour of assigning the expression �his own� requirement of the landlord a liberal, wide and usefuleven an extended meaning as that would advance the purpose of enacting the provision, discarding a narrow interpretation.

(24) We are of the opinion that the expression �for his own use� as occurring in Section 13 (3)(a)(ii) of the Act cannot be narrowly construed. The expression must be assigned a wider, liberal and practical meaning. The requirement is not the requirement of the landlord alone in the sense that the landlord must for himself require the accommodation and to fulfill the requirement he must himself physically occupy the premises. The requirement of a member of the family or of a person on whom the landlord is dependent or who is dependent on the landlord can be considered to be the requirement of the landlord for his own use. In the several decided cases referred to hereinabove, we have found the pari materia provisions being interpreted so as to include the requirement of the wife, husband, sister, children including son, daughter, a widowed daughter and her son, nephew, coparceners, members of family and dependants and kith and kin in the requirement of landlord as �his� or �his own� requirement and user. Keeping in view the social or socioreligious milieu and practices prevalent in a particular section of society or a particular region, to which the landlord belongs, it may be the obligation of the landlord to settle a person closely connected with him to make him economically independent so as to support himself and/or the landlord. To discharge such obligation the landlord may require the tenancy premises and such requirement would be the requirement of the landlord. If the requirement is of actual user of the premises by a person other than the landlord himself the Court shall with circumspection inquire: (i) whether the requirement of such person can be considered to be the requirement of the landlord, and (ii) whether there is a close interrelation or identity nexus between such person and the landlord so as to satisfy the requirement of the first query. Applying the above said tests to the facts of the present case it is clear that the tenancy premises are required for the office of the landlord''s son who is a chartered accountant. It is the moral obligation of the landlord to settle his son well in his life and to contribute his best to see him economically independent. The landlord is not going to let out the premises to his son and though the son would run his office in the premises the possession would continue with the landlord and in a sense the actual occupation by the son would be the occupation by the landlord himself. It is the landlord who requires the premises for his son and in substance the user would be by the landlord for his son''s office. The case squarely falls within the scope of Section 13(3)(a)(ii) of the Act.

(32) We have already noticed that the purpose of the Act is to restrict increase of rent and the eviction of tenants in urban areas. Still the legislature has taken care to provide grounds for eviction, one of them being the requirement of the landlord. We have to strike a balance between the need of protecting the tenants from unjustified evictions and the need for eviction when ground for eviction is one such as the requirement of the landlord. If we do not meaningfully construe the concept of requirement the provision may suffer from the risk of being branded as unreasonable arbitrary or as placing uncalled for and unreasonable restrictions on the right of the owner to hold and use his property. We cannot place a construction on the expression �for his own use� in such a way as to deny the landlord a right to evict his tenant when he needs the accommodation for his own son to settle himself well in his life. We have to give colour and content to the expression and provide the skin of a living thought to the skeleton of the words, which the legislature has not itself chosen to define. The Indian society, its customs and requirements and the context where the provision is set in the legislation are the guides leading to acceptance of the meaning which we have chosen to assign to the words �for his own use� in Section 13(3) (a)(ii) of the Act.

(33) Our conclusions are crystallized as under:

(i) The words �for his own use� as occurring in Section 13(3) (a)(ii) of the East Punjab Urban Rent Restriction Act, 1949 must receive a wide liberal and useful meaning rather than a strict or narrow construction.

(ii) The expression landlord requires for �his own use�, is not confined in its meaning to actual physical user by the landlord personally. The requirement not only of the landlord himself but also of the normal �emanations� of the landlord is included therein. All the cases and circumstances in which actual physical occupation or user by someone else, would amount to occupation or user by the landlord himself, cannot be exhaustively enumerated. It will depend on a variety of factors such as interrelationship and interdependence economic or otherwise, between the landlord and such person in the background of social, socioreligious and local customs and obligations of the society or region to which they belong.

(iii) The tests to be applied are: (i) whether the requirement pleaded and proved may properly be regarded as the landlord''s own requirement; and, (ii) whether on the facts and in the circumstances of a given case, actual occupation and user by a person other than the landlord would be deemed by the landlord as �his own� occupation or user. The answer would, in its turn, depend on (i) the nature and degree of relationship and/or dependence between the landlord pleading the requirement as �his own� and the person who would actually use the premises; (ii) the circumstances in which the claim arises and is put forward; and (iii) the intrinsic tenability of the claim. The Court on being satisfied of the reasonability and genuineness of claim, as distinguished from a mere ruse to get rid of the tenant, will uphold the landlord''s claim.

(iv) While casting its judicial verdict, the Court shall adopt a practical and meaningful approach guided by the realities of life.

(v) In the present case, the requirement of the landlord of the suit premises for user as office of his chartered accountant son is the requirement of landlord �for his own use� within the meaning of Section 13(3)(a)(ii)�

(Emphasis supplied)

In Smt. Ramkubai v. Hajarimal Dhokalchand Chandak and others, AIR 1999 S.C. 3089, their Lordships of the Supreme Court laid down as follows (paragraphs 11, 12, 13, 14 and 15 of the said AIR) :

�(11) The second reason given by the Appellate Court is that at the time of filing of petition the son of the landlady was unemployed but later on he started doing work as a contractor in construction field, so he did not really want to run a Kirana shop in the suit premises. The Appellate Court was of the view that had he really intended to take up Kirana business he would not have started a business like that of a contractor. The third reason given by him is that the landlady was a partner, after the death of her husband, in the Kirana business run by her husband''s brother. It was also noted that another son of the landlady is in possession of another shop and doing Kirana business and thus the family is engaged in Kirana business in two shops and if Bhikchand wanted to do Kirana business he could have joined existing business. From this the Appellate Court concluded that the landlady did not require the suit premises for establishing Bhikchand in Kirana business. The learned counsel for the respondents strongly supported these reasons. It is correct that Bhikchand was unemployed on the date of filing of the suit but he could not be expected to idle away the time by remaining unemployed till the case is finally decided. It has already taken, about 25 years. Therefore, we do not think that taking up contractor work, in the meanwhile, will militate against his carrying on the business of Kirana which is his family business, which was carried on by his father and is being carried on by his brother independently. The facts that the landlady during her lifetime was a partner in the firm currying on Kirana business and her elder son is carrying on Kirana business do not disentitle. Bhikchand to establish his own business. We are not impressed by the other reasoning and conclusion of the Appellate Court which are confirmed by the High Court. In our new, none of the reasons leads to the inference that Bhikchand cannot be denied to the landlady to recover the suit premises for personal requirement of Bhikchand to establish Kirana business independently.

(12) The only other aspect which is required to be noticed is requirement of subsection (2) of Section 13 of the Act. It enjoins the Court not to pass decree for eviction under clause (g) of subsection (1) if, having regard to all the circumstances of the case including the question whether other reasonable accommodation is available for the landlord or the tenant, it is satisfied that greater hardship would be caused by passing the decree than by refusing to pass it and if the Court is satisfied that no hardship would be caused either to the tenant or to the landlord by passing the decree in respect of a part of the premises, the Court has to pass the decree in respect of such part only.

(13) In this case, the Appellate Court recorded the finding that the landlady will suffer greater hardship than the tenants if decree is not passed in her favour. This finding has become final and thus the requirement of subsection(2) is also satisfied.

(14) In this connection, it is apt to notice that Section 17 of the Act provides for recovery of possession of the premises by the original tenant in the event of the landlord not occupying the premises or reletting the premises to any other person than the original tenant. Further, it also provides penal action against the landlord who violates the provision of clause (g) of subsection (1) of Section 13. These provisions amply safeguard the interest and rights of tenants and prevents misuse of clause (g).

(15) We are satisfied that the present appellants have established bona fide requirement to recover the possession of the suit premises from the respondent�.

(Emphasis supplied)

In Gaya Prasad v. Pradeep Srivastava, 2001(1) JCLR 109 (SC) : 2001 (1) ARC 352 (S.C.), their Lordships of the Supreme Court laid down as follows (paragraph 10 of the said ARC) :

�(10) We have no doubt that the crucial date for deciding as to the bona fide of the requirement of the landlord is the date of his application for eviction. The antecedent days may perhaps have utility for him to reach the said crucial date of consideration. If every subsequent development during the post petition period is to be taken into account for judging the bona fides of the requirement pleaded by the landlord there would perhaps be no end so long as the unfortunate situation in our litigative slow process system subsists. During 23 years after the landlord moved for eviction on the ground that his son needed the building, neither the landlord nor his son is expected to remain idle without doing any work, lest, joining any new assignment or starting any new work would be at the peril of forfeiting his requirement to occupy the building. It is a stark reality that the longer is the life of the litigation the more would be the number of developments sprouting up during the long interregnum. If a young entrepreneur decides to launch a new enterprise and on the ground he or his father seeks eviction of a tenant from the building, the proposed enterprise would not get faded out by subsequent development during the traditional lengthy longevity of the litigation. His need may get dusted, patina might stick on its surface nonetheless the need would remain intact. All that is need is to eras the patina and see the gloss. It is pernicious, and we may say, unjust to shut the door before an appellant just on the eve of his reaching the finale, after passing through all the previous levels of the litigation, merely on the ground that certain developments occurred pendente lite, because the opposite party succeeded in prolonging the matter for such unduly long period�.

(Emphasis supplied)

In Anand Babu alias Anand Swaroop v. IIIrd Additional District Judge, Jalaun at Orai and others, 2000(2) JCLR 48 (All) : 2000 (1)ARC 405 (supra), a learned Single Judge of this Court laid down as follows (paragraph 7 of the said ARC) :

�(7) Learned counsel for the respondent contended that in fact, son of the petitioner had started his business in the name �Sangam Ink Industry� and once that industry has been closed that indicates that he does not require the shop in question. A landlord is entitled to establish his son in independent business. The landlord may be carrying on the business but if his son want to carry on an independent business irrespective of the income of the father, he is entitled to carry on his business as held in N.S. Datta and others v. VIIth Additional District Judge, Allahabad and others, 1984(1) ARC 113. Secondly, even assuming that his son is carrying on some business till he gets some independent business, that will not deprive his to get a separate accommodation for carrying on independent business. In Smt. Ramka Bai v. Hazari Mal Dholak Chandak, A.I.R. 1999 S.C. 3089 : 1999 SCFBRC 378, where the landlady required the premises to set up one of her sons in grocery business but subsequently his son started work of contractor, it was held that his need did not extinguish merely because he started some work. His son cannot be expected to remain unemployed till the suit is finally decided.�

(Emphasis supplied)

In Sanjay Kumar and others v. Subodh Kumar and others, 2004(1) JCLR 112 (All) : 2004 (1) ARC 148, this Court referred to several decisions mentioned above, and concluded as follows (paragraph 45 of the said ARC):

�(45) From these decisions the following principles, amongst others, may be deduced:

(1) Every adult member of the family has right to settle himself in an independent business/profession/occupation of his individual aptitude.

(2) Existence of a family business will not debar such adult member from claiming this right to settle himself in an independent business/profession/occupation even if he is already assisting in such family business. Further, the available resources of his father and other sources of income of the family will not be a hurdle in his way in claiming his right to settle himself in an independent business/profession/occupation.

(3) Every landlord is under moral obligation to settle his son well in his life and to contribute his best to see him economically independent.

(4) It is open to the landlord to file a release application for settling his son in an independent business/profession/occupation, irrespective of the existence of a family business in which such son may be assisting the landlord.

(5) An adult member of a family, for whose need the release application is filed, is not expected to sit idle during the pendency of the release application, and it is open to him to take up an alternative assignment or work or engagement while awaiting the release of the accommodation for settling himself in an independent business/profession/occupation of his choice.

(6) The need of the landlord for settling his son in independent business will not be negatived on the ground of the existence of family business in which such son may be assisting the landlord, nor will such a need be negatived on the ground of the existing family business being a flourishing one or on the ground of already available resources with the landlord and his family, nor will such a need be negatived on the ground that the nature of the independent business in which the son is to be settled is the same as that of the existing family business, nor will such a need be negatived on the ground that the son during the pendency of the release application has taken up an alternative assignment or work or engagement while awaiting the release of the accommodation for carrying on business/profession/occupation of his choice and aptitude.

(7) The Court should adopt a practical and meaningful approach guided by the realities of life and the relevant social context�.

Keeping in view the aforesaid principles, let us now examine the facts of the present case.

As noted above, the said Vinod Kumar took up the engagement with the Peerless Company, as he could not sit idle during the pendency of the release application. Merely because the said Vinod Kumar started working with the Peerless Company on commission basis, did not negative his need in respect of the disputed accommodation for starting cloth business. Need for settling the said Vinod Kumar in cloth business set up by his father Jalpa Prasad (petitioner herein) was evidently bona fide and genuine. The said need or requirement setup by the said Jalpa Prasad (petitioner herein) was not shown to be tainted with any ulterior motive, nor was it shown to be a mere pretence or pretext to evict the tenant. In my opinion, the circumstance (a) mentioned above, (i.e. regarding the working of the said Vinod Kumar with Peerless Company), relied upon by the Appellate Authority in recording the finding on the question of bona fide need, could not negative the bona fide need of the said Jalpa Prasad (petitioner herein) for settling his son, Vinod Kumar in cloth business in view of the legal position mentioned above. The approach adopted by the Appellate Authority in relying upon the said circumstance (a) was contrary to the correct legal position. Even if, as noted above, the said Vinod Kumar started working with the Peerless Company on commission basis while awaiting decision on the release application, the said fact did not negative his need in respect of the disputed accommodation for starting cloth business.

As the finding recorded by the Appellate Authority on the question of bona fide need has been recorded by adopting an approach, which is contrary to the correct legal position, such finding is illegal. Therefore, this Court in exercise of its writ jurisdiction under Article 226 of the Constitution of India can interfere with such finding recorded by the Appellate Authority.

Taking up the circumstance (b), mentioned above, relied upon by the Appellate Authority in recording the finding on the question of bona fide need, namely, regarding the petitioner having agriculture, houses and shop in Bhagwant Nagar, DistrictUnnao and earning income therefrom and regarding the petitioner having several houses in Kanpur District, it is apparent from a perusal of the judgment and order dated 2491988 that even though the Appellate Authority noticed the rival versions and referred to the existence of documentary evidence on record, it (Appellate Authority) did not record any specific finding as to the identity or extent of the alleged agricultural land, nor did it record any specific finding regarding the quantum of the alleged income of the petitioner from the alleged agriculture. Similarly, even though the Appellate Authority noticed the rival versions of the parties and referred to the existence of documentary evidence on record, it (Appellate Authority) did not record any specific finding regarding identity or extent of the alleged houses or shop of the petitioner in Bhagwant Nagar, DistrictUnnao, nor did it record any specific finding regarding the quantum of the alleged rental income of the petitioner from such alleged houses/shop. Again, even though the Appellate Authority noticed the rival versions and referred to the existence of documentary evidence on record, it (Appellate Authority) did not record any specific finding as to the identity or extent of the alleged several houses of the petitioner in Kanpur District, nor did it record any specific finding regarding the quantum of the alleged rental income of the petitioner from such alleged houses.

In my opinion, even if the petitioner was getting income from agriculture and/or rent, still the petitioner could genuinely decide to start business to engage himself in the same, and not to remain sitting idle depending on the agricultural and/or rental income. No allegation was made by the said Dr. Shambhu Dayal (predecessorininterest of the respondent Nos. 1 to 6) nor by the respondent Nos. 1 to 6 themselves that the said Jalpa Prasad (petitioner herein) was running any business except getting agricultural and/or rental income. Therefore, the need setup by the said Jalpa Prasad (petitioner herein) for starting business could not be regarded as tainted with any ulterior motive nor could the same be regarded as a mere pretence or pretext to evict the tenant. The petitioner, Jalpa Prasad not having been already engaged in any business, his need to engage himself in cloth business was, in my view, bona fide and genuine keeping in view the scope of �bona fide need� or �bona fide requirement� as has emerged from various decisions referred to in the earlier part of this judgment.

Therefore, the Appellate Authority in relying upon the circumstance (b) mentioned above while deciding the question of bona fide need did not adopt correct approach in consonance with the correct legal position, and as such, the finding on the question of bona fide need recorded by the Appellate Authority was illegal.

Reference in this regard may be made to the decision of this Court in Baidyanath Das v. District Judge, Allahabad and others, (1991) 1 ARC 283, relied upon by the learned senior counsel for the petitioner. In the said case, a learned Single Judge of this Court held as follows (paragraph 3 of the said ARC) :

�(3) The Court has heard learned counsel for the petitioner in detail. The Court has been taken through the record to show that the needs of the tenant have not been considered. From the record it appears that the authorities below have gone into the comparative needs between the tenant and the landlord. It is not disputed that (a) the landlord has retired and (b) had moved an application seeking release almost about two years after his retirement. It was contended before this Court that the amount of pension which he has and the gratuity which he has received consequent upon his retirement, there is no occasion for the landlord to substantiate his income. This Court is afraid that it cannot accept this argument as the pension and the post retirement benefits of an employee in reference to the context are his privacy and no tenant can contend that the landlord''s pension and post retirement benefits are sufficient so that he does not need any additional income.�

Taking up the circumstance (c), mentioned above, relied upon by the Appellate Authority in recording the finding on the question of bona fide need, namely, another portion of the premises in question falling vacant and the allotment thereof in favour of Manjit Singh, and no effort having been made by the petitioner for release of the said other portion, I am of the opinion that it is not necessary to go into the controversy as to whether the petitioner was aware of the said other portion having fallen vacant and the allotment thereof in favour of Manjit Singh, as the said vacancy occurred and the allotment order was made after the disputed accommodation had already been released in favour of the petitioner by the Prescribed Authority by its judgment and order dated 2511982, and the said Rent Appeal No. 78 of 1982 against the said judgment and order dated 2511982 was pending. Evidently, the need of the petitioner was for only one shop, and the said judgment and order dated 2511982 was passed by the Prescribed Authority releasing the disputed accommodation in favour of the petitioner in order to satisfy the said need of the petitioner. In such circumstances, even if the said other portion in the premises in question fell vacant during the pendency of the said Rent Appeal No. 78 of 1982, there was no occasion for the said Jalpa Prasad (petitioner herein) to seek release of the said other portion under Section 16(1)(b) of the Act, and thereby jeopardizing the release order which had already been passed in his favour in respect of the disputed accommodation under Section 21(1)(a) of the Act. It is noteworthy that as the need of the petitioner was for only one shop, he would not have been successful in showing bona fide need for the said other portion in the premises in question in view of the already existing release order in his favour under Section 21(1)(a) of the Act in respect of the disputed accommodation. In my opinion, the fact that the petitioner did not seek release of the said other portion in the premises in question which fell vacant during the pendency of the said Appeal, did not in any manner show that the need of the petitioner for the disputed accommodation was not bona fide. Therefore, the Appellate Authority acted illegally in taking into account the said circumstance (c) while deciding the question of bona fide need.

It is, thus, evident that the finding on the question of bona fide need recorded by the Appellate Authority in the said judgment and order dated 2491988 is illegal, and the same is liable to be quashed.

The third question, which arises, is regarding comparative hardships of the parties.

A perusal of the judgment and order dated 2491988 passed by the Appellate Authority shows that in deciding the question of comparative hardships, the Appellate Authority has relied upon the following circumstances:

(i) The petitioner was having several houses and shops and was also having means of income by agriculture.

(ii) Vinod Kumar (son of the petitioner) had means of earning still greater commission by putting in still greater labour in the work of Peerless Insurance Company.

(iii) Dr. Shambhu Dayal and his successorsininterest, namely, respondent Nos. 1 to 6 had been in occupation of the disputed accommodation for the last 50 years.

(iv) No alternative accommodation was available to the respondent Nos. 1 to 6 for shifting their cloth business, while the petitioner had available with him alternative means of residence and business. Therefore, the respondent Nos. 1 to 6 would suffer greater hardship.

It is submitted by Shri Saxena, learned senior counsel appearing for the petitioner that the Appellate Authority recorded finding on the question of comparative hardships in an illegal manner and on irrelevant considerations. It is submitted that the Appellate Authority has not recorded any specific finding as to the identity/extent of the alleged agricultural land or houses or shop of the petitioner in Bhagwant Nagar, DistrictUnnao, nor has any specific finding been recorded as to the condition of or the availability of or the suitability of accommodation in the alleged houses or shop of the petitioner in Bhagwant Nagar, DistrictUnnao. It is further submitted that even otherwise, the existence of the alleged agricultural land or houses or shop in Bhagwant Nagar, DistrictUnnao was not relevant, as the petitioner Jalpa Prasad required the disputed accommodation situated in Kanpur for starting cloth business in Kanpur. It is further submitted that the Appellate Authority has acted on pure assumptions in observing that the petitioner had several houses in Kanpur District, and it has not recorded any finding regarding the identity/extent of such alleged houses of the petitioner in Kanpur District, nor has it recorded any specific finding as to the condition of or the availability of or the suitability of accommodation in such alleged houses in Kanpur District. The Appellate Authority has not recorded any finding as to whether any alternative accommodation was available to the petitioner, Jalpa Prasad at the time of filing the release application under Section 21(1)(a) of the Act for starting cloth business. The said other portion which fell vacant during the pendency of the said Appeal could not be said to be available to the petitioner, Jalpa Prasad without the same being released under Section 16(1)(b) of the Act, and such release application under Section 16(1)(b) of the Act could not be filed by the petitioner, Jalpa Prasad in view of the already existing release order under Section 21(1)(a)of the Act in respect of the disputed accommodation.

It is further submitted by Shri Saxena that once the need of the landlord is bona fide and genuine, the question of comparative hardships should be considered liberally, and if the tenant does not make any effort to get alternative accommodation then there is no question of any hardship to the tenant. It is further submitted by Shri Saxena that in the present case, the said Dr. Shambhu Dayal or his successors ininterest i.e. respondent Nos. 1 to 6 have not brought any evidence on record that they made any effort to search alternative accommodation.

It is further submitted by Shri Saxena that the Appellate Authority misdirected itself in emphasizing that the said Dr. Shambhu Dayal and his successorsininterest have been in occupation of the disputed accommodation for the last 50 years without appreciating that in the disputed accommodation, the said Dr. Shambhu Dayal had been running Homeopathic dispensary, and the Prescribed Authority in the said judgment and order dated 25 11982 did not accept the version of the said Dr. Shambhu Dayal that he had been regularly attending the patients after his illness and that a cloth business had been started by the sons of the said Dr. Shambhu Dayal. It is further submitted by Shri Saxena that the Prescribed Authority rightly pointed out that even if cloth business had been started by the sons of the said Dr. Shambhu Dayal, as alleged, still the recent start of the said cloth business, if any, by the sons of the said Dr. Shambhu Dayal would not uproot the claim of the petitioner which had been found to be bona fide and pressing. Shri Saxena submits that the Appellate Authority acted illegally in failing to appreciate the said aspect of the matter.

Shri Saxena has placed reliance on the following decisions in support of his submissions on the question of comparative hardships:

(1) Jagdish Prasad v. IXth Additional District Judge, Kanpur and others, 1993 (2) ARC 63 (paragraph 8).

(2) Smt. Razia Khatoon v. Ist Additional District Judge, Badayun and others, 1997(2) JCLR 486 (All) : 1997 (2) ARC 175 (paragraph 16).

In reply, Miss. Usha Kiran, learned counsel for the respondent Nos. 1 to 6 submits that the finding on the question of comparative hardships recorded by the Appellate Authority in the said judgment and order dated 2491988 was recorded on consideration of the relevant facts and circumstances, and the said finding being finding of fact, no interference was called for by this Court in exercise of its writ jurisdiction under Article 226 of the Constitution of India. It is further submitted by Miss. Usha Kiran that the petitioner has two houses in Kanpur, namely, premises No. 50/89, Naughara, Kanpur (wherein the disputed accommodation is situated) and the other, House No. 46/27, Hatia, Kanpur, and the petitioner was getting rental income from the said houses. It is further submitted by Miss. Usha Kiran that the details of the agricultural land, houses and shop of the petitioner in Bhagwant Nagar, DistrictUnnao as well as the houses of the petitioner in Kanpur were given on behalf of the respondent Nos. 1 to 6. It is further submitted, that the Appellate Authority rightly emphasized that the said Dr. Shambhu Dayal and his successorsininterest, namely, respondent Nos. 1 to 6 had been in occupation of the disputed accommodation for the last 50 years.

I have considered the submissions made by the learned counsel for the parties.

Fourth proviso to Section 21(1) of the Act requires that �the Prescribed Authority shall....... ....... ...ta ke into account the lik ely hardship to the tenant from the grant of the application as against the likely hardship to the landlord from the refusal of the application and for that purpose shall have regard to such factors as may be prescribed.�

An examination of the circumstances mentioned above, which have been relied upon by the Appellate Authority in deciding the question of comparative hardships, shows that while the Appellate Authority has considered the hardship which would be caused to the respondent Nos. 1 to 6 in case the release application was allowed, it (Appellate Authority) has not considered in proper perspective the hardship which would be caused to the petitioner on account of the rejection of the release application keeping in view the need of the petitioner for establishing himself and his son in business. The Appellate Authority ought to have addressed itself to the question of comparative hardships on the assumption that the need setup by the petitioner for establishing himself and his son in business was bona fide, and having made such assumption, the Appellate Authority ought to have proceeded, with the need setup by the petitioner in view, to consider the hardship which would be caused to the respondent Nos. 1 to 6 in case the release application was allowed visavis the hardship which would be caused to the petitioner in case of rejection of the release application.

The Appellate Authority has considered the question of comparative hardships without having regard to the aforesaid aspects, and, therefore, the finding recorded by the Appellate Authority on the question of comparative hardships is illegal, and the same is liable to be interfered with in exercise of writ jurisdiction under Article 226 of the Constitution of India.

Let us now examine the aforesaid circumstances relied upon by the Appellate Authority in deciding the question of comparative hardships.

As noted above, the circumstance (i), relied upon by the Appellate Authority in deciding the question of comparative hardships, is that the petitioner was having several houses and shops and was also having means of income by agriculture. However, as noted above, even though the Appellate Authority noticed the rival versions of the parties and referred to the existence of documentary evidence on record, it did not record any specific finding as to the identity or extent of the alleged agricultural land, nor did it record any specific finding as to the quantum of the alleged agricultural income. Similarly, even though the Appellate Authority noticed the rival versions of the parties and referred to the existence of documentary evidence on record, it did not record any specific finding as to the identity or extent of the alleged houses or shop of the petitioner in Bhagwant Nagar, DistrictUnnao, nor did it record any specific finding as to the condition of or the availability of or the suitability of accommodation in the alleged houses or shop of the petitioner in Bhagwant Nagar, DistrictUnnao. Again, even though the Appellate Authority noticed the rival versions of the parties and referred to the existence of documentary evidence on record, it did not record any specific finding as to the identity or extent of the alleged houses of the petitioner in Kanpur District, nor did it record any specific finding as to the condition of or the availability of or the suitability of accommodation in such alleged houses of the petitioner in Kanpur District.

It is, thus, evident that the Appellate Authority has not recorded any specific finding on various relevant factors noted above, and has made only a general observation that the petitioner was having several houses and shops and was also earning income from agriculture. The Appellate Authority having based its finding on the question of comparative hardships on the said observation regarding the petitioner having several houses and shops and agricultural income without recording specific findings on the relevant factors noted above, the finding of the Appellate Authority on the question of comparative hardships is illegal on account of ignoring the relevant considerations and is liable to be interfered within exercise of writ jurisdiction under Article 226 of the Constitution of India.

There is yet another aspect of the matter. The need setup by the petitioner, Jalpa Prasad for the release of the disputed accommodation situated in Kanpur was for starting cloth business in Kanpur. In the circumstances, the existence of the agricultural land or houses or shop in Bhagwant Nagar, District Unnao was not relevant for deciding the question of comparative hardships. The Appellate Authority, thus, decided the question of comparative hardships taking into consideration a factor, which was not relevant for deciding the said question. The finding of the Appellate Authority on the question of comparative hardships, is, therefore, illegal, and is liable to be interfered with in exercise of writ jurisdiction under Article 226 of the Constitution of India.

Taking up now the circumstance (ii), relied upon by the Appellate Authority in recording the finding on the question of comparative hardships, namely, Vinod Kumar (son of the petitioner) having means of earning still greater commission by putting in still greater labour in the work of Peerless Insurance Company, I am of the opinion that the said circumstance mentioned by the Appellate Authority is based on pure conjectures and assumptions. The Appellate Authority did not point out any material or document on the record, which could lead it (Appellate Authority) to conclude regarding the possibility of expansion of work of the said Vinod Kumar in Peerless Company.

Hence, the circumstance (ii) was relied upon by the Appellate Authority without any basis, and the Appellate Authority acted illegally in relying upon the said circumstance.

Coming now to the circumstance (iii), relied upon by the Appellate Authority in recording the finding on the question of comparative hardships, the Appellate Authority took into consideration the long occupation of the said Dr. Shambhu Dayal and his successorsininterest, namely, respondent Nos. 1 to 6 in the disputed accommodation.

In order to decide as to whether the Appellate Authority rightly relied upon the said circumstance, it is necessary to refer to the relevant Rules framed under the Act (hereinafter also referred to as �the Rules�).

Rule 16 of the Rules framed under the Act provides as follows:

�16. Application for release on the ground of personal requirement [Sections 21 (1)(a) and 34(8)]. [(1) In considering the requirements of personal occupation for purposes of residence by the landlord or any member of his family, the prescribed authority shall, also have regard to such factors as the following

(a) where the landlord already has adequate and reasonably suitable accommodation having regard to the number of members of his family and their respective ages and his means and social status, his claim for additional requirements shall be construed strictly ;

(b) where a residential building was let out at a time when the sons of the landlord were minors and subsequently one or more of them has married, the additional requirement of accommodation for the landlord''s sons shall be given due consideration ;

(c) where the tenant has, apart from the building under tenancy other adequate accommodation, whether owned by him or held as tenant of any public premises, having regard to the number of members of his family and their respective ages and his social status, the landlord''s claim for additional requirements shall be construed liberally ;

(d) where the tenant''s needs would be adequately met by leaving with him a part of the building under tenancy and the landlord''s need would be served by releasing the other part, the prescribed authority shall release only the latter part of the building ;

(e) where there are a number of tenants separately occupying a block of tenements and the landlord desires their eviction on ground of his personal need the prescribed authority shall, consider whether suitable alternative accommodation is likely to be available to such tenants ;

(f) where the landlord offers to the tenant alternative accommodation reasonably suitable to the needs of the tenant and his family the landlord''s claim for release of the building under tenancy shall be construed liberally ;

(g) where the landlord was engaged in any employment in the same city, municipality, notified area or town area in which the building is situate and was in occupation of other accommodation by reason of such employment or where the landlord is the wife or minor son or unmarried daughter of a person who was engaged in any profession, trade, calling or employment away from the city, municipality, notified area or town area within which the building is situate and was living with such person, and by reason of the cessation of such engagement, the landlord needs the building for occupation by himself for residential purposes, such need shall ordinarily be deemed sufficient.

(2) While considering an application for release under clause (a) of subsection (1) of Section 21 in respect of a building let out for purposes of any business, the prescribed authority shall also have regard to such facts as the following

(a) the greater the period since when the tenant opposite party or the original tenant whose heir the opposite party is, has been carrying on his business in that building, the less the justification for allowing the application ;

(b) where the tenant has available with him suitable accommodation to which he can shift his business without substantial loss there shall be greater justification for allowing the application ;

(c) the greater the existing business of the landlord''s own, apart from the business proposed to be set up in the leased premises, the less the justification for allowing the application, and even if an application is allowed in such a case, the prescribed authority may on the application of the tenant impose the condition where the landlord has available with him other accommodation (whether subject to the Act or not) which is not suitable for his own proposed business but may serve the purpose of the tenant, that the landlord shall let out that accommodation to the tenant on a fair rent to be fixed by the prescribed authority ;

(d) where a son or unmarried or widowed or divorced or judicially separated daughter or daughter of a male lineal descendant of the landlord has, after the building was originally let out, completed his or her technical education and is not employed in Government service, and wants to engage in selfemployment, his or her need shall be given due consideration.

(3) Where the tenant being servant of Government or of any local authority or any public sector corporation does not contest the application, then a reasonable opportunity of being heard shall be given to the District Magistrate, who shall have the right to oppose the application.]�

A perusal of Rule 16(2)(a) of the Rules shows that in deciding the question of comparative hardships, the prescribed authority will also have regard to the fact that �the greater the period since when the tenant opposite part, or the original tenant whose heir the opposite party is, has been carrying on his business in that building, the less the justification for allowing the application.� Thus, Rule 16(2)(a) of the Rules refers to the period since when the business is being carried on by the tenant opposite party or his predecessor i.e., the original tenant, and not merely to the period of occupation of such tenant opposite party or his predecessorininterest i.e., the original tenant.

In the present case, the Prescribed Authority rejected the version of the said Dr. Shambhu Dayal that he had been regularly attending the patients after his illness, and also disbelieved the version of the respondent Nos. 1 to 6 regarding the cloth business having been started by them in the disputed accommodation. It was also pointed out by the Prescribed Authority that the recent start of cloth business, if any, would not uproot the claims of the petitioner in the release application, which had been found to be bona fide and pressing. The Appellate Authority did not advert to the said aspects of the case.

As noted above, Rule 16(2)(a) of the Rules requires consideration of the period since when the business is being carried on, and not merely the period of occupation. This is evidently because if business is carried on for a long period, the question of goodwill of the business comes up. If the business is a recent one, there is evidently no question of goodwill of such a business.

In the circumstances, it was incumbent on the Appellate Authority to have examined the period of the alleged cloth business of the respondent Nos. 1 to 6 in the disputed accommodation. However, the Appellate Authority has merely considered the period of occupation of Dr. Shambhu Dayal and his successorsininterest, namely, respondent Nos. 1 to 6 in the disputed accommodation without adverting to the period of the business carried on by them in the disputed accommodation. The Appellate Authority has evidently not correctly appreciated the import of Rule 16(2)(a) of the Rules framed under the Act.

Even otherwise, Second proviso to Section 21(1) of the Act provides that if any application under Clause (a) Section 21(1) of the Act is made in respect of any building let out exclusively for nonresidential purposes, the prescribed authority while making the order of eviction, shall, after considering all relevant facts of the case, award against the landlord to the tenant an amount not exceeding two years'' rent as compensation and may, subject to Rules, impose such other conditions as it thins fit. Thus, this provision provides for award of compensation to the tenant for loss of goodwill, if any, on account of his long occupation in the disputed accommodation in any building let out exclusively for nonresidential purposes.

In the present case, the Prescribed Authority in its judgment and order dated 2511982 awarded an amount equal to two years'' rent to the tenant as compensation. Therefore, loss of goodwill, if any, on account of long occupation in the disputed accommodation by the tenant was compensated by the award of two years'' rent as compensation keeping in view the Second proviso to Section 21(1) of the Act. The Appellate Authority did not consider the said aspects of the case, and decided the question of comparative hardships mainly relying upon the long occupation of the said Dr. Shambhu Dayal and his successorsininterest, namely, respondent Nos. 1 to 6 in the disputed accommodation.

Coming now to the circumstance (iv), relied upon by the Appellate Authority in deciding the question of comparative hardships, namely, the nonavailability of alternative accommodation to the respondent Nos. 1 to 6 for shifting their alleged cloth business, I am of the opinion that in case the landlord is able to establish that his need is bona fide and that he would suffer greater hardship in case of rejection of his release application, the release application cannot be rejected merely on the ground that the tenant would suffer hardship due to nonavailability of alternative accommodation. In every case of eviction, the tenant is bound to suffer some hardship, but merely the said circumstance cannot be a ground for refusing the eviction of the tenant.

In Mst. Bega Begum and others v. Abdul Ahad Khan, AIR 1979 Supreme Court 272 (supra), their Lordships of the Supreme Court laid down as follows (paragraphs 19,20, 21, 23 and 26 of the said AIR):

�(19)........................It is no doubt true that the tenant will have to be ousted from the house if a decree for eviction is passed, but such an event would happen whenever a decree for eviction is passed and was fully in contemplation of the legislature when Section 11(1)(h) of the Act was introduced in the Act. This by itself would not be a valid ground for refusing the plaintiffs a decree for eviction.

(20) Let us now probe into the extent of the hardship that may be caused to one party or the other in case a decree for eviction is passed or is refused. It seems to us that in deciding this aspect of the matter each party has to prove its relative advantages or disadvantages and the entire onus cannot be thrown on the plaintiffs to prove that lesser disadvantages will be suffered by the defendants and that they were remediable....�

�(21) In view of our findings it has been established that the landlords have not only a genuine requirement to possess the house, but it is necessary for them to do so in order to augment their income and maintain themselves properly. Being the owners of the house they cannot be denied eviction and be compelled to live below the poverty line merely to enable the respondents to carry on their flourishing hotel business, at the cost of the appellants. This shows the great prejudice that will be caused to the plaintiffs if their suit is dismissed. The plaintiffs have already produced material before the Court to show that their income does not exceed more than Rs. 8,000/ to Rs. 9,000/ per year as the yearly incometax paid by them is Rs. 70 to Rs. 80 only. There is no other means for them to augment their income except to get their own house vacated by the defendants so as to run a hotel business....�

�(23) It was then submitted by Mr. Andley, counsel for the respondents that if the respondents are evicted, they will be thrown out on the road; that hotel is the only source of their sustenance and they are not likely to get any alternative accommodation on being evicted. If the defendants had proved that they will not be able to get any accommodation, anywhere in the city where they could set up a hotel, this might have been a weighty consideration, but the evidence of all the witnesses examined by the defendants only shows that the defendants may not get alternative accommodation in that very locality where the house in dispute is situated. There is no satisfactory evidence to prove that even in other business localities there is no possibility of the defendants getting a house. To insist on getting an alternative accommodation of a similar nature in the same locality will be asking for the impossible. The defendants are tenants and had taken the lease only for 10 years but had overstayed for 20 years and they cannot be allowed to dictate to the landlord that they cannot be evicted unless they get a similar accommodation in the very same locality. �

�(26) Thus, what has established from the evidence of the defendants is that if they are ejected, they might not get a house as big as the house in dispute in the very locality where the disputed house is situated. There is no clear evidence in the first place to show that there is no other business locality in the city at all or that if there is any other business locality attempts were made by the defendants but they were unable to get any house. Furthermore, as indicated above, the plaintiffs'' necessity is imperative and their requirement is undoubtedly reasonable, because the income, which they are receiving including the rent of the house, which is in the region of Rs. 5,000 per year, is not sufficient to maintain them. Thus, on a careful comparison and assessment of the relative advantages and disadvantages of the landlord and the tenant it seems to us that the scale is tilted in favour of the plaintiff. The inconvenience, loss and trouble resulting from denial of a decree for eviction in favour of the plaintiffs far outweigh the prejudice or the inconvenience, which will be caused to the defendants. The High Court has unfortunately not weighed the evidence from that point of view. �

(Emphasis supplied)

This decision shows that �to insist on getting an alternative accommodation of a similar nature in the same locality will be asking for the impossible�. The Apex Court has also emphasized that �it is no doubt true that the tenant will have to be ousted from the house if a decree for eviction is passed, but such an event would happen whenever a decree for eviction is passed.................This by itself would not be a valid ground for refusing the plaintiffs a decree for eviction�.

In N.S. Dutta & others v. VIIth Additional District Judge, Allahabad and others, 1984 (1) ARC 113 (supra), it was laid down that the nonavailability of alternative accommodation to the tenant is in itself not the adequate ground to reject the landlord''s application for release. Reliance was placed on the decisions in Kamil Khan v. IIIrd Additional District Judge, Bareilly and others, 1982(1) ARC 783, and in Suraj Prasad Sharma v. IInd Additional District Judge, Mirzapur and others, 1983 Allahabad Civil Journal 432 : 1983(1) ARC 427.

In Kamil Khan v. IIIrd Additional District Judge, Bareilly and others, 1982 (1) ARC 783 (supra), it was laid down as under (paragraph 12 of the said ARC) :

�(12) Now the question of comparative hardships of the parties is to be considered from the stand point that no alternative accommodation is available to the tenant. As said earlier, the need of the landlords to have mere accommodation for residential purposes is quite genuine and bona fide as well as pressing. The application of the landlords cannot be rejected on the ground that no alternative accommodation is available to the tenant for shifting his residence. The law does not provide for rejection of the application of the landlords on such a ground. The tenant''s family consists of himself and his wife. At present he is occupying two kothries besides usual amenities of a kitchen and a lavatory. I think that it may not be difficult for the tenant to find this much of accommodation if he makes really hard efforts for the same. On a careful consideration of the facts and circumstances, it can be said, though for different reasons, that the hardship to the landlords on account of the refusal of the application would be greater than the hardship to the tenant on account of allowing the application. �

In Suraj Prasad Sharma v. IInd Additional District Judge, Mirzapur and others, 1983 (1) ARC 427 (supra), it was laid down as follows (paragraph 3 of the said ARC) :

�(3) ...................... The first condition which has to he established in granting the release under Section 21 of the Act is that the landlord''s need is genuine and bona fide. Thereafter unless the case is covered by an exception, the second condition has to be satisfied, namely, that in the event of release being refused the landlord was likely to suffer greater hardship. It is on the satisfaction of these twin conditions that a release application can be allowed. But some times the authorities in a rather superficial and perfunctory manner and obsessed with the supposed intention of the Legislature to protect the tenants alone fail to apply correctly and with precision the touchstone of comparative hardship. It is a common place fact that invariably when an application under Section 21 of the Act is allowed, the tenant has be quit and this involves discomfort but if this alone were sufficient to non suit the landlord, no application for release could ever be allowed. Judging comparative hardships is a matter of deeper import and it would be a lopsided order which dismisses a landlord''s application for release merely with the platitudinous observation that the tenant would be �thrown on the street�. The physical dispossession of the tenant is the necessary concomitant of every release application of the landlord which is allowed. Howsoever wellfound that the application may be, an element of inconvenience or discomfort is inherent in the very process of vacating on accommodation. A release application cannot be thrown out merely with the bald observation that the tenant would suffer greater hardship. All the relevant factors have to be taken into account and a balance has to be struck and then if it is found that inconvenience suffered by the tenant in the event of eviction is of such gravity that it outweighs the hardship which would be occasioned to the landlord by refusal of release, the application may be rejected. So it would not do for an authority merely to say that the tenant would suffer greater hardship. The matter should not rest there. It must be probed further and every salient factor should be taken into account such as whether the tenant is actually carrying on business in the accommodation, whether the business is of such proportion of such nature or in such locality that alternative accommodation for prosecuting the same cannot be found out and whether it is a residential accommodation and whether the availability of other suitable accommodation is on the facts of the case remote or otherwise. If the matter is scrutinized thread bare, it might be possible in a majority of cases to hold definitely that the nature of the business carried on was such that the replacement of one accommodation by another was possible with or without difficulty or was impossible on account of insurmountable inconvenience or difficulty....�

These decisions thus support the conclusion that the mere fact that alternative accommodation is not available to the tenant is not a valid ground for rejecting the release application filed by the landlord on the ground of bona fide need.

The Appellate Authority in recording the finding on the question of comparative hardships, thus, did not adopt a correct approach in consonance with the true legal position. Therefore, the finding recorded by the Appellate Authority on the question of comparative hardships suffers from manifest error of law, and the same is liable to be interfered with by this Court in exercise of its writ jurisdiction under Article 226 of the Constitution of India.

There is yet another aspect of the case. It has been laid down in various decisions that one of the relevant factors for deciding the question of comparative hardships is as to whether the tenant has made any sincere efforts to find alternative accommodation or not.

In Ghafoor v. IVth Additional District Judge, Aligarh and others, 1986 (1) ARC 345, it was laid down as follows (paragraphs 7 & 8 of the said ARC):

�(7) So far, the submission in regard to the nonconsideration of the question of comparative hardship in accordance with law is concerned; suffice it to say that judicial thinking now is that the tenant is under an obligation to lead evidence and satisfy the Prescribed Authority (as well as the Appellate Authority) that reasonable efforts were made by him to secure a suitable alternative accommodation inspite whereof he is not able to find none for himself. See Mst. Bega Begum and others v. Abdul Ahad Khan, AIR 1979 Supreme Court 272 and N.S. Dutta & others v. VIIth Additional District Judge, Allahabad and others, 1984 (1) ARC 113.

(8) In the present case it is clear that this requirement was not satisfied. In any event I am not inclined to intervene in favour of the tenantpetitioner in the present case as requiring the Appellate Authority to go into the matter afresh would necessarily involve lapse of quite sometime in the final determination of the dispute a result which will be most unequitable. The petition deserves to be and is dismissed.�

In Jagdish Prasad v. IXth Additional District Judge, Kanpur and others, 1993 (2) ARC 63 (supra), relied upon by the learned senior counsel for the petitioner, it was laid down as follows (paragraph 8 of the said ARC):

�(8) The learned counsel for the petitioner has asserted that the finding on the question of relative hardships has not been examined in a correct perspective. I have perused the impugned order carefully. In this case the need of the landlord for the release has been found to be genuine and bona fide. Taking into consideration the fact that the landlord wants to settle his two sons in business which need has been found to be genuine and bona fide, the question relating to the hardship likely to be suffered by the tenant had to be considered liberally in favour of the landlord specifically when there is absolutely nothing on the record to indicate that the tenant had taken any action whatsoever to find out any suitable alternative accommodation after having come to know that the landlord is seeking the release of the accommodation in dispute. This inaction on the part of the tenant is more than sufficient to tilt the balance of hardship in favour of the landlord.�

In Smt. Razia Khatoon v. 1st Additional District Judge, Badaun and others, 1997(2) JCLR 486 (Al) : 1997 (2) ARC 175 (supra), relied upon by the learned senior counsel for the petitioner, it was laid down as follows (paragraphs 16 and 17 of the said ARC) :

�(16) In the cases where there is inaction on the part of the tenant in searching for an alternative accommodation by seeking allotment or otherwise in spite of coming to know that the building in his tenancy is genuinely required by the landlord for satisfying his bona fide need, the question of relative hardships envisaged under the 4th proviso to Section 21 of the Act deserves to be considered liberally in favour of the landlord specifically when the bona fide need for the grant of release sought for is established. While it is true that a proviso embraces the field which is covered by the main provision and the main part cannot be construed in such a manner so as to render a proviso redundant yet under the scheme of the Act, the 4th proviso to Section 21 does not appear to fall within those exceptional cases where this proviso may be said to be a part of the substantive provision itself. It should also not be lost sight of that a proviso cannot be permitted to defeat the basic intent expressed in the substantive provision which, as is apparent from the perusal of Section 21 of the Act, is to enquire the availability of the demised premises to the landlord on his successfully establishing the bona fide requirement of the same for the purpose envisaged in that Section. It may be noticed in this connection that where the language of the main enactment is clear and unambiguous a proviso cannot be permitted to have any repercussion on the interpretation of the main enactment so as to exclude from it by implication what clearly falls within its express terms failure of tenant to make attempt to find out an alternative accommodation during the pendency of the release ejectment proceedings would certainly be a factor against the tenant''s case for greater hardship.

(17) This Court in its decision in the case of N.S. Datta and others v. VIIth Additional District Judge, Allahabad and others, reported in 1984(1) ARC 113, had observed that the proviso in question requires a mandatory regard being had to the advantages or disadvantages either in the event of the application for release being allowed or otherwise but each party was required to adduce evidence to show that hardship could be caused to him by grant or refusal of the release of the building under tenancy and that the tenant must also adduce evidence to the effect that other reasonable accommodation was not available to him. It was further observed that the Court is entitled also to take into account the fact that the tenant has neither alleged nor proved to have made effort to have an alternative accommodation and that nonavailability of alternative accommodation to the tenant is not in itself an adequate ground to reject the landlord''s application for release. In its decision in the case of Dr. Muni Lal v. IVth Additional District Judge, Etah and others, reported in 1984(1) ARC 378, this Court has clarified that the fact that nothing is brought on record indicating that the tenant had made any effort during the period of the pendency of the release application for getting some accommodation allotted in his favour or otherwise or that he had failed in his attempt is a relevant circumstances while considering the question relating to comparative hardships. Taking into consideration the question relating the scheme of the Act, I am of the firm opinion that such an inaction on the part of the tenant constitutes an Additional circumstances which entitles the landlord to have a preference shown to him while striking the just balance between the genuine need of the landlord on the one hand and the likely inconvenience or trouble of the tenant on the other. It may further be borne in mind that the use of the phrase ''having regard to'' as envisaged under the fourth proviso to Section 21 of the Act would clearly show that this provision was not obligatory. The facts mentioned in Rule 16 of the Rules, should, however, have to be kept in mind while deciding the release application. No single factor can be held to be conclusive. As observed in its decision in the case of Mohd. Muslim v. District Judge, Varanasi and others, reported in 1978 ARC 328, it is the cumulative effect of all that has to be seen. The inaction of the tenant to search for an alternative accommodation, as already indicated hereinbefore, constitutes an additional factor which may outweigh the hard ship, if any, likely to be suffered by the tenant in the event of the grant of the release application in case where the bona fide requirement for the release stands conclusively established.�

In Pramod Kumar Verma v. VIth Additional District Judge, Bijnor and others, 2000(1) JCLR 613 (All) : 2000 (1) ARC 185, it was laid down as follows (paragraph 12 of the said ARC) :

�(12) In Bhishan Chand v. Additional District Judge, 1982 (1) ARC 440, the Apex Court held that where hardship of the landlord and tenant are found to be equal unless additional circumstances justifying the release order in favour of the landlord exists, the order of the release should not be passed in his favour. It has been found that the son of the landlord having passed B.Com examination is unemployed. His elder brother has independent business and the father is also carrying on independent business. He also requires a shop to carry on independent business. On the other hand the petitioner is Goldsmith and carrying on manufacturing and sale of ornaments for the last many years. The burden was upon him also to establish as to what effort he did made to find out alternative accommodation. The application under Section 21 of the Act was filed by respondent No. 3 in the year 1992 and almost five years have already elapsed. He has not shown as to what efforts did he made to find alternative accommodation. One of the test to consider comparative hardship is to find out as to whether the tenant has made efforts to find out alternative accommodation vide Hark Singh v. IVth Additional District Judge, 1999 (1) ARC 365; Kuldeep Kumar v. IXth Additional District Judge and others, 1999 (1) ARC 371. The son of respondent No. 3 is unemployed while the petitioner is carrying business for the last more than 25 years where he must have earned the amount and could have made efforts to find out alternative accommodation. In Bega Begum v. Abdul Ahad Khan, AIR 1979 Supreme Court 272 : 1986 SCFBRC 346, it was observed that the tenant will have to be ousted from the house if a decree for eviction is passed but such an event will happen whenever a decree for eviction is passed and it was fully in contemplation of the legislature when Section 11(1) (h) of J & K Houses and Shops Rent Control Act was introduced. In deciding the extent of hardship that may be caused to one party or the other, in case the decree for eviction is passed or refused, each party has to prove its relative advantages and disadvantages and the entire onus cannot be thrown on the plaintiff to prove that lesser disadvantages will be suffered by the defendant and that they were remedial.�

In Bansal Brothers v. XIIIth Additional District Judge, Kanpur Nagar and others, 2000 (1) ARC 513, it was held as follows (paragraph 5 of the said ARC) :

�(5) It is further submitted that the petitioner will suffer greater hardship in case he is evicted as the petitioner is carrying on business for the long time. It has not been shown that the petitioner made any sincere effort to find out any alternative accommodation. The application was filed in the year 1989 and almost nine years have passed. Considering the entire facts and circumstances of the case, I do not find it to be a fit case for interference under Article 226 of the Constitution of India. The writ petition is accordingly dismissed.�

In Khubi Ram (Smt.) and others v. IVth Additional District Judge, Jhansi, 2002 (2) ARC 539, it was held as follows (paragraphs 53 and 54 of the said ARC) :

�(53) The last submission made by the learned counsel for the landlordrespondent No. 2, as noted above, is that even assuming without admitting that the petitioners did not have alternative accommodation in Teliyani Bazaria, Jhansi, the petitioners were bound to show that they made sincere efforts to find alternative accommodation, but the petitioners failed to show that any such efforts had been made by them. I am of the view that this submission made by the learned counsel for the landlord respondent No. 2 is correct.

(54) As laid down in various decisions, one of the relevant factors for deciding the question of comparative hardships is as to whether the tenant has made sincere efforts to find alternative accommodation or not.�

In the present case, it has not been shown by the respondent Nos. 1 to 6 or their predecessorininterest Dr. Shambhu Dayal as to what efforts were made by them for finding an alternative accommodation. The Appellate Authority was bound to take into consideration the said relevant factor while deciding the question of comparative hardships. The Appellate Authority having failed to take into account the said relevant factor, the finding recorded by it on the question of comparative hardships is illegal, and the same is liable to be interfered with by this Court in exercise of its writ jurisdiction under Article 226 of the Constitution of India.

As regards the other factor mentioned in the circumstance (iv), relied upon by the Appellate Authority in deciding the question of comparative hardships, namely, the petitioner having available with him alternative means of residence and doing business, the said factor, as noted above, in examining the circumstance (i) relied upon by the Appellate Authority, has been mentioned by the Appellate Authority without recording specific findings on various relevant factors. Moreover, the alleged availability of accommodation for residence was not a relevant factor to be considered in the present case, as the need setup for the disputed accommodation was for establishing the petitioner and his son in business. Again, the alleged availability of alternative means of income, namely, the alleged rental income and the alleged agricultural income or the alleged engagement of the said Vinod Kumar (son of the petitioner) with the Peerless Insurance Company were not relevant, having regard to the need setup by the petitioner for establishing himself and his son in cloth business in the disputed accommodation.

In my opinion, the Appellate Authority has intermingled the circumstances relevant for deciding the question of bona fide need with the circumstances relevant for deciding the question of comparative hardships, and has failed to examine in correct and legal perspective the hardship which would be suffered by the petitioner in case of rejection of the release application.

It is, thus, evident that the finding recorded by the Appellate Authority on the question of comparative hardships in the said judgment and order dated 2491988 is illegal, and the same is liable to be quashed.

In view of the aforesaid discussion, I am of the opinion that the writ petition deserves to be allowed, and the judgment and order dated 2491988 (Annexure3 to the writ petition) passed by the learned 5th Additional District and Sessions Judge, Kanpur Nagar (Appellate Authority respondent No. 9) is liable to be quashed, and the matter is liable to be remanded to the Appellate Authority for deciding the case afresh in the light of the observations made in this judgment.

Before parting with the case, it is necessary to examine one more submission made by Miss. Usha Kiran, learned counsel for the respondent Nos. 1 to 6. It is submitted that the said Vinod Kumar (son of the petitioner) whose need was setup in 1978 when he was 20 years of age, has now reached an age of 46 years, and he is so ill that he is bedridden and unable to even walk and he is on constant medical treatment. Miss. Usha Kiran refers to the averments made in paragraph 8 of the supplementary counter affidavit sworn on 7th August, 2002 filed on behalf of the respondent Nos. 1 to 6. The said paragraph 8 of the supplementary counter affidavit sworn on 7th August, 2002 is quoted below :

�(8) That the son of the petitioner for whom the need is set up in the release application is very seriously ill since past several years and he is even unable to walk properly or even sit most of the time he is bed reddin.�

A perusal of the contents of the aforesaid paragraph 8 shows that only vague and general allegations have been made regarding the alleged serious illness of the son of the petitioner for the past several years. No particulars have been given, inter alia, regarding the nature of the alleged illness of the said Vinod Kumar (son of the petitioner), or regarding medical advice, if any, given to the said Vinod Kumar in regard to the alleged illness. No documentary proof has been given in regard to the alleged illness of the said Vinod Kumar.

In the circumstances, there is no occasion to examine the submission made by the learned counsel for the respondent Nos. 1 to 6 regarding the alleged illness of the said Vinod Kumar, son of the petitioner.

Even otherwise, the alleged illness of the said Vinod Kumar, relied upon by the learned counsel for the respondent Nos. 1 to 6 as a subsequent event, in my opinion, cannot be considered.

The question as to whether subsequent event can be taken into consideration, and if yes, as to when subsequent event can be taken into consideration, have been examined by the Supreme Court in various decisions.

In Hasmat Rai and another v. Raghunath Prasad, AIR 1981 SC 1711, their Lordships of the Supreme Court laid down as follows (paragraph 14 of the said AIR):

�(14).......................................... Therefore, when an action is brought by the landlord under Rent Restriction Act for eviction on the ground of personal requirement, his need must not only be shown to exist at the date of the suit, but must exist on the date of the appellate decree, or the date when a higher Court deals with the matter. During the progress and passage of proceeding from Court to Court if subsequent events occur which if noticed would non suit the plaintiff, the Court has to examine and evaluate the same and mould the decree accordingly..................�

�Therefore, it is now incontrovertible that where possession is sought for personal requirement it would be correct to say that the requirement pleaded by the landlord must not only exist on the date of the action but must subsist till the final decree or an order for eviction is made. If in the meantime events have cropped up which would show that the landlord''s requirement is wholly satisfied then in that case his action must fail and in such a situation it is incorrect to say that as decree or order for eviction is passed against the tenant he cannot invite the Court to take into consideration subsequent events. He can be precluded from so contending when the decree or order for eviction has become final.�

Again, in M/s. Variety Emporium v. V.R.M. Mohd. Ibrahim Naina, AIR 1985 Supreme Court 207, their Lordships of the Apex Court laid down as follows (paragraphs 16 and 17 of the said AIR):

�(16).............No authority is needed for the proposition that, in appropriate cases, the Court must have regard to events as they present themselves at the time when it is hearing the proceeding before it and mould the relief in the light of those events.

(17) The High Court having failed to consider the circumstances which had arisen before it for the first time, it becomes our duty to have regard to them. Having considered the evidence in the case, particularly the fact that the landlord has obtained decrees for possession against 3 out of the 4 tenants on the ground floor and 1 out of the 3 tenants on the first floor, we do not see any justification for evicting the appellant from the premises in his occupation. The landlord''s requirement such as it is, is more than adequately met by the eviction of those 4 tenants.�

In Kamleshwar Prasad v. Pradumanju Agarwal, 1997(2) JCLR 94 (SC) : 1997 (1) ARC 627 (SC), their Lordships of the Supreme Court were dealing with the provisions of Sections 21(1)(a) and 22 of the Act. Their Lordships observed as follows (paragraph 3 of the said A.R.C.):

�(3)................. Under the Act, the order of the Appellate Authority is final and the said order is a decree of the Civil Court and decree of a Competent Court having become final cannot be interfered with by the High Court in exercise of its power of superintendence under Articles 226 and 227 of the Constitution by taking into account any subsequent event which might have happened. The apart, the fact that the landlord needed the premises in question for starting a business which fact has been found by the Appellate Authority, in eye of law, must be that on the day of application for eviction which is the crucial date, the tenant incurred the liability of being evicted from the premises. Even if the landlord died during the pendency of the writ petition in the High Court, the bona fide need cannot be said to have lapsed as the business in question can be carried on by his widow or any elder son..........�

In Gaya Prasad v. Pradeep Srivastava, 2001(1) JCLR 109 (SC) : 2001 (1) ARC 352 (SC) (supra), their Lordships of the Apex Court while dealing with the provisions of Section 21 (1)(a) of the Act, laid down as follows (paragraphs 10, 11, 12, 13, 14, 15 and 17 of the said ARC):

�(10) We have no doubt that the crucial date for deciding as to the bona fide of the requirement of the landlord is the date of his application for eviction. The antecedent days may perhaps have utility for him to reach the said crucial date of consideration. If every subsequent development during the post petition period is to be taken into account for judging the bona fides of the requirement pleaded by the landlord there would perhaps be no end so long as the unfortunate situation in our litigative slow process system subsists. During 23 years after the landlord moved for eviction on the ground that his son needed the building, neither the landlord nor his son is expected to remain idle without doing any work, lest, joining any new assignment or starting any new work would be at the peril of forfeiting his requirement to occupy the building. It is a stark reality that the longer is the life of the litigation the more would be the number of developments sprouting up during the long interregnum. If a young entrepreneur decides to launch a new enterprise and on that ground he or his father seeks eviction of a tenant from the building, the proposed enterprise would not get faded out by subsequent development during the traditional lengthy longevity of the litigation. His need may get dusted, patina might stick on its surface, nonetheless the need would remain intact. All that is needed is to eras the patina and see the gloss. It is pernicious, and we may say, unjust to shut the door before an appellant just on the eye of his reaching the finale, after passing through all the previous levels of the litigation, merely on the ground that certain developments occurred pendente lite, because the opposite party succeeded in prolonging the matter for such unduly long period.

(11) We cannot forget that while considering the bona fide of the need of the landlord the crucial date is the date of petition. In Ramesh Kumar v. Kesho Ram, 1992 Suppl. (2) SCC 623: 1992 SCFBRC 322, a twoJudge Bench of this Court (M.N. Venkatachalia, J., as he then was, and N.M. Kasliwal, J.) pointed out that the normal rule is that rights and obligations of the parties are to be determined as they were when the lis commenced and the only exception is that the Court is not precluded from moulding the reliefs appropriately in consideration of subsequent events provided such events had an impact on those rights and obligations. What the learned Chief Justice observed therein is this :

�The normal rule is that in any litigation the rights and obligations of the parties are adjudicated upon as they obtain at the commencement of the lis. But this is subject to an exception. Wherever subsequent events of fact or law which have a material bearing on the entitlement of the parties to relief or on aspects which bear on the moulding of the relief occur, the Court is not precluded from taking a `cautious cognizance'' of the subsequent change of fact and law to mould �the relief�.

(12) This Court reiterated the same principle in Kamleshar Prasad v. Pradumanju Agarwal, 1997(2) JCLR 94 (SC) : 1997 (4) SCC 413: 1997 (1) ARC 627, that the crucial date normally is the date of filing the petition.

(13) In our opinion, the subsequent events to overshadow the genuineness of the need must be of such nature and of such a dimension that the need propounded by the petitioning party should have been completely eclipsed by such subsequent events. A threeJudge Bench of this Court in Pasupuleti Venkateswarlu v. Motor and General Traders, 1975 (1) SCC 770, which pointed to the need for remoulding the reliefs on the strength of subsequent events affecting the cause of action in the field of rent control litigation, forewarned that cognizance of such subsequent events should be taken very cautiously. This is what learned Judges of the Bench said then :

�We affirm the proposition that for making the right or remedy claimed by the party just and meaningful as also legally and factually in accord with the current realities, the Court can, and in many cases must, take cautious cognizance of events and developments subsequent to the institution of the proceedings provided the rules of fairness to both sides are scrupulously obeyed.�

(14) The next threekludge Bench of this Court, which approved and followed the above decision, in Hasmat Rax v. Raghunath Prasad, 1981 (3) SCC 103, has taken care to emphasise that the subsequent events should have �wholly satisfied� the requirement of the party who petitioned for eviction on the ground of personal requirement..............

(15) The judicial tardiness, for which unfortunately our system has acquired notoriety, causes the lis to creep through the line for long years from the start to the ultimate termini, is a malady afficiting the system. During this long interval many events are bound to take place which might happen in relation to the parties as well as the subject matter of the lis. If the cause of action is to be submerged in such subsequent events on account of the malady of the system it shatters the confidence of the litigant, despite the impairment already caused.

(17) Considering all the aforesaid decisions, we are of the definite view that the subsequent events pleaded and highlighted by the appellant are too insufficient to overshadow the bona fide need concurrently found by the fact finding Courts.�

In G.C. Kapoor v. Nand Kumar Bhasin & others, 2001 (2) ARC 603 (SC) (supra), their Lordships of the Supreme Court dealt with the provisions of Section 21 (1)(a) of the Act, and reiterated the principle laid down in Gaya Prasad v. Pradeep Srivastava (supra), that the crucial date for deciding as to bona fide of requirement of the premises in question is the date of filing of the release application.

In Vallampati Kalavathi v. Haji Ismail, 2001(4) SCC 26, their Lordships of the Supreme Court while dealing with the case arising out of the petition under Section 10 of the Andhra Pradesh Building (Lease, Rent and Eviction) Control Act, 1960 seeking eviction of the tenant, laid down as follows (paragraph 12 of the said SCC):

�(12) ...................................... When the litigation lingers on for years certain factual developments are bound to take place. All such developments are not necessarily relevant for adjudication of the case. No doubt, in proceedings for eviction of the tenant on the ground of personal requirement of the landlord sometimes subsequent developments may be relevant to be looked into for enabling the authorities to make a fair and proper adjudication of the controversy. While taking note of subsequent developments the autho rities/Courts should keep in mind whether such material is relevant and can turn the balance in the case; the controversy should be decided with reference to the pleadings of the parties and the findings placed on re co rd.............................�

In Om Prakash Gupta v. Ranbir B. Goyal, (2002) 2 SCC 256, their Lordships of the Apex Court laid down as follows (paragraphs 11 and 12 of the said SCC):

�(11) The ordinary rule of civil law is that the rights of the parties stand crystallized on the date of the institution of the suit and, therefore, the decree in a suit should accord with the rights of the parties as they stood at the commencement of the lis. However, the Court has power to take note of subsequent events and mould the relief accordingly subject to the following conditions being satisfied: (i) that the relief, as claimed originally has, by reason of subsequent events, become inappropriate or cannot be granted; (ii) that taking note of such subsequent event or changed circumstances would shorten litigation and enable complete justice being done to the parties; and (iii) that such subsequent event is brought to the notice of the Court promptly and in accordance with the rules of procedural law so that the opposite party is not taken by surprise..............�

(12) Such subsequent event may be one purely of law or founded on facts. In the former case, the Court may take judicial notice of the event and before acting thereon put the parties on notice of how the change in law is going to affect the rights and obligations of the parties and modify or mould the course of litigation or the relief so as to bring it in conformity with the law. In the latter case, the party relying on the subsequent event, which consists of facts not beyond pale of controversy either as to their existence or in their impact, is expected to have resort to amendment of pleadings under Order 6 Rule 17 CPC. Such subsequent event, the Court may permit being introduced into the pleadings by way of amendment as it would be necessary to do so for the purpose of determining real questions in controversy between the parties.................. �

In Shahjahan alias Sharda Devi v. IV Additional District Judge, Etawah and others, 2003 (50) ALR 246 : 2003 All. L.J. 627, this Court noticed the above decisions of the Apex Court, and concluded as follows (paragraph 51 of the said ALR):

�(51) Following principles, amo ngst others, emerge from the aforesaid judicial decisions:

(1) The crucial date for deciding as to bona fide requirement of the landlord is the date of filing of the release application for the ejectment of the tenant. Rights and obligations of the parties are to be determined as they were when the lis commenced.

(2) Every subsequent development taking place during the pendency of the litigation is not to be taken into account for judging the bona fide of the requirement pleaded by the landlord, otherwise, there would be no end to the litigation.

(3) Subsequent events may be considered in the following situation:

(a) Subsequent events are such on account of which the requirement of the landlord is wholly satisfied.

(b) Subsequent events are of such nature and of such a dimension that the need propounded by the landlord is completely eclipsed or overshadowed by such subsequent events.

(c) Subsequent events are such which can turn the balance in the case.

(d) Taking note of such subsequent events or changed circumstances would lead to early end of the litigation and would result in complete justice being done.

(e) On account of subsequent events, relief as originally claimed has become inappropriate, or the same cannot be granted.

(4) In order that the subsequent events may be considered, the events should be brought to the notice of the Court promptly and in accordance with the rules of procedural law so as to ensure that the opposite party is not taken by surprise.�

It will thus be seen that the crucial date for deciding as to the bona fide requirement of the landlord is the date of filing of the release application. However, subsequent events may be considered in certain circumstances indicated above provided such subsequent events are brought to the notice of the Court promptly and in accordance with the rules of procedural law so as to ensure that the opposite party is not taken by surprise.

The alleged subsequent event in the present case, as noted above, is the illness of the said Vinod Kumar, son of the petitioner. In my opinion, the said alleged subsequent event is not covered in any of the circumstances indicated above. The said alleged subsequent event is not such on account of which the requirement of the landlord (petitioner) is wholly satisfied, nor is the said alleged subsequent event of such nature and of such a dimension that the need propounded by the landlord is completely eclipsed or overshadowed, nor is the said alleged subsequent event such which can turn the balance of the case, nor is the said alleged subsequent event such that taking note of the same would lead to early end of the litigation and would result in complete justice being done, nor is the said alleged subsequent event such that the relief, as originally claimed, has become inappropriate, or the same cannot be granted.

Hence, the submission made by the learned counsel for the respondent Nos. 1 to 6 for taking into consideration the alleged illness of the said Vinod Kumar (son of the petitioner) cannot, in my view, be accepted.

In view of the aforesaid discussion, the writ petition is allowed, and the judgment and order dated 2491988 (Annexure3 to the writ petition) passed by the learned 5th Additional District and Sessions Judge, Kanpur Nagar (Appellate Authority respondent No. 9) in Rent Appeal No. 78 of 1982 is quashed, and the matter is remanded to the Appellate Authority for deciding the case afresh in the light of the observations made above.

On the facts and circumstances of the case, however, there will be no order as to costs.