IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 3678 (M/S) of 2001 (Old No.24718/2000) Smt. Basanti Devi …Petitioner Versus A.D.J. (Special Judge) and others …Respondents Hon’ble Tarun Agarwala, J. Heard Mr. Jagdish Singh Bisht, Advocate holding brief of Mr. Sharad Sharma, the learned Senior counsel for the petitioner, Mr. R.C. Arya, the learned Brief Holder for the State and Mr. A.K. Sharma, the learned counsel for respondent no. 2. A release application under Section 21 (1)(a) of the U.P. Act No. 13 of 1972 (for short ‘the Act’) was filed by the landlord against the tenant/petitioner indicating therein the need of the accommodation for his family. The landlord contended that there were six members in the family, namely, himself, his wife, his parents, and two sons, aged 11 years and 15 years respectively. The landlord contended that he had two rooms, one kitchen, one bathroom, one toilet, and one covered verandah, which was insufficient for the growing need of his family. The tenant living in the same premises was occupying one room for himself and for his grandson. The landlord contended that the said additional room would suffice for the growing need of his family. The tenant resisted the release application and contended that there was no bonafide need of the landlord and that, comparative hardship was more in favour of the tenant than in favour of the 2 landlord. The tenant contended that the landlord’s parents were living separately and, consequently, the rooms available with the landlord were sufficient for himself and for his sons. It was further alleged that the landlord had another room, which he had got vacated from one tenant known as Sumer Chandra and, consequently, that additional room would suffice for the additional need, if any, of the landlord. The trial court, after considering the matter, held that there was no bonafide need of the landlord and that, comparative hardship was more in favour of the tenant than in favour of the landlord. The Prescribed Authority consequently rejected the application of the landlord for the release of the shop under Section 21 (1) (a) of the Act. The landlord being aggrieved filed an appeal which was allowed and the accommodation was released in favour of the landlord. The appellate court held that the landlord’s need was bonafide and that, there was an additional requirement for the growing need of the landlord’s family. The appellate court found that the parents of the landlord were residing with the landlord and that, two growing sons required their privacy and space to live comfortably. The lower appellate court found that the two rooms were insufficient for the landlord, for his sons, and for his grandparents and that, the grandparents required an individual room, the sons required an individual room, and the landlord required an individual room. The lower 3 appellate court further found that the storeroom or the drawing/dining room could not be converted into an additional room for the landlord’s sons, or for the guests of the landlord and, consequently, concluded that the landlord had a bonafide need for an additional room for his family. On the question of comparative hardship, the lower appellate court found that there was a pressing need for the growing family of the landlord for an additional room compared to the existing need of the tenant. The lower appellate court further found that the tenant’s son had constructed another residential building where the tenant could shift. The lower appellate court further found that the tenant had not made any effort to find out any alternate accommodation. The lower appellate court consequently allowed the release application. The tenant, being aggrieved by the order of the lower appellate court, has filed the present writ petition. The learned counsel for the petitioner contended that the lower appellate court committed a manifest error in holding that the landlord had a bonafide need for an additional accommodation without considering the fact that an additional room was got vacated by another tenant of the landlord and which room could be easily used to satisfy the additional need for the landlord’s family. The learned counsel for the petitioner further contended that the lower appellate court has only considered the hardship of the landlord, but has nowhere considered the hardship of the tenant nor has 4 evaluated the hardship of the landlord vis-à-vis the tenant, and submitted that, since the hardship of the tenant was not considered, the order of the lower appellate court was liable to be set aside in view of the proviso to Section 21 (1) (a) of the Act. Having heard the learned counsel for the petitioner at some length, the Court finds that the submission raised by the learned counsel for the petitioner is not tenable. A perusal of the impugned order as well as the application of the landlord under Section 21 (1) (a) of the Act, clearly reveals that the landlord had originally occupied a room after having it vacated from the tenant Sumer Chandra, and since the same could not be utilized for residential purpose, the landlord had sold it to the same tenant Sumer Chandra, who converted the said room into a workshop, and consequently, the said room was no longer available with the landlord for the growing need of his sons. Further, the Court finds that these facts had been stated by the landlord in his release application and that, the room was sold to the said tenant much prior to the filing of the release application. Consequently, the tenant cannot raise a ground that the said room could be utilized by the landlord, when it is a clear case that the room was no longer available with the landlord. The Court finds that the appellate court has categorically given a finding that the landlord had two rooms for his use; one room for himself, and one room for his parents, and required an additional room for the growing sons. The Court finds that the lower appellate court was justified in 5 holding that there existed a bonafide need for the growing need of the sons of the landlord. This finding, in my opinion, is based on appreciation of facts, which is not perverse, and consequently, cannot be interfered with in a writ jurisdiction. On the question of comparative hardship, the Court finds that no steps had been taken by the tenant in all these years to make available an alternate accommodation. The only ground urged was that she does not have sufficient funds to take another accommodation on rent. The Court finds that the petitioner has nowhere denied the fact that the son of the petitioner had acquired a residential accommodation. In view of the aforesaid, the Court is of the opinion that the comparative hardship was more in favour of the landlord than in favour of the tenant. In view of the aforesaid, the Court does not find any error in the impugned order. The writ petition fails and is dismissed. (Tarun Agarwala, J.) 30-08-2010 Salim/