Poonam Srivastav, J.
1. Heard Sri K.K. Tripathi, learned Counsel for the petitioner and Sri Mohd. Asif and Sri Shamsad advocates for the contesting respondents Badre Alam.
2. The judgment dated 18.11.2008, passed by the Prescribed Authority/Civil Judge (Senior Division), Kanpur Nagar in Rent Case No. 10 of 2006, Badre Alam v. Mohd. Gayas, and judgment dated 17.3.2009, passed by the A.D.J, Vth, Kanpur Nagar in Rent Appeal No. 128 of 2008, Mohd. Gayas v. Badre Alam, are impugned in the instant writ petition.
3. The contesting respondent Badre Alam is the landlord of House No. 649 (Survey No. 605/1172/4) Faithfulganj, Cantt, Kanpur Nagar. The petitioner is tenant of one room, verandah, courtyard, latrine, kitchen, bathroom and open terrace on the first floor of the aforesaid house at monthly rent of Rs. 325. The landlord-respondent filed a release application under Section 21(1)(a) of the Act No. 13 of 1972 (hereinafter referred as the Act) before the Prescribed Authority on the ground that he bona fidely requires the accommodation for himself and his family members. The family consists of 9 persons which includes 5 daughters whose age are between 30 to 18 years, two sons aged 20 and 21 years, he is residing on the ground floor accommodation which consists of two rooms, store, kitchen, toilet, latrine, bathroom and barsatl on the first floor. He had given the details of his requirement vis a vis family members in the release application dated 29.3.2006 which is Annexure-1 to the writ petition. The aforesaid release application was objected by filing written statement on 22.11.2006 which is Annexure-2 to the writ petition. Evidence was produced in form of affidavits by both the parties and the said affidavits have been annexed with the writ petition as Annexures-3, 4, 5, 6, 7, 8 and 9. The commissioner's report dated 13.5.2008 is Annexure-10 to the writ petition. The assertion of the landlord was that the tenant has shifted his son and daughter-in-law in house No. 368/4, Rail Bazar at a rent of Rs. 1,000 per month but this fact was admitted half heartedly by the tenant stating that the occupation of his son and daughter-in-law was only for a limited period of 11 months. An agreement was executed to the said effect in respect of the accommodation of Rail Bazar and now he has already vacated the accommodation and living with the tenant in the disputed accommodation. It was further asserted by the petitioner-tenant that the landlord has concealed the actual accommodation in his occupation. There are underground rooms as well. There were tenants on the second floor such as Mohd. Anwar at monthly rent of Rs. 40 per month who has now vacated his room and a new tenant was inducted after taking premium of Rs. 18,000 at rent of Rs. 200 per month. Now a new tenant Mohd. Irshad has come after the previous tenant subsequently vacated. The premium taken previously was paid back but the new tenant gave a premium of Rs. 25,000, this by itself is sufficient to establish that he has no need of accommodation whatsoever. It was also asserted that other tenants residing on the ground floor have already construed their accommodation in the near vicinity but no proceedings have been initiated against them. The prescribed authority allowed the release application and passed an order of eviction against the petitioner holding the need of the landlord to be genuine and bona fide and also in the event of rejection of release application, he would suffer greater hardship. The prescribed authority directed him to vacate the tenanted accommodation within 30 days. The petitioner preferred an appeal under Section 22 of the Act and continued to reside in the said accommodation by virtue of an interim order. An application was filed by the petitioner at the appellate stage under Order XLI, Rule 27, C.P.C. read with Rule 34 (fl of the Rules framed under the Act as additional evidence. This was specifically to bring to the notice of the Court that so called accommodation available to his son and daughter-in-law at Rail Bazar has been taken over by its landlord and that should not be taken into consideration while deciding the rent appeal. The appellate court confirmed the order of the trial court and allowed the release application.
4. Learned Counsel appearing on behalf of the landlord-respondent has disputed each and every arguments of the learned Counsel for the petitioner. He emphatically asserts that the son of the tenant is living in Rail Bazar alongwith his wife and the evidence placed before the Court to demonstrate that the said accommodation has been taken over by its landlord is fabricated piece of evidence created specially for the instant release application. It is further submitted that so called accommodation at the basement of the premises can only be used for storage purpose as there is no provision for ventilation or light and it is not habitable, therefore, that cannot be taken into consideration. Besides, the learned Counsel for the landlord also placed Annexure-7 which is an affidavit filed as rebuttal, to support the contention of the landlord that the tenant has already purchased an open land having an area 70 square yards by means of registered sale deed in Meerpur Chhawani, Kanpur Nagar though constructions have not been made but this is not being done with obvious motive. Besides, the learned Counsel for the landlord brought to my notice an interim order dated 18.12.2008 passed in Rent Appeal No. 128 of 2008 wherein the tenant had moved stay application 502. The interim order was granted on the condition that the tenant deposits Rs. 1,000 per month towards rent in stead of Rs. 325 per month which is too meagre amount.
5. I have gone through entire record and also considered the arguments advanced by the respective counsels. It is true that the landlord has a big family. The daughters and sons are grown up and they do need more rooms and additional accommodation but they are compelled to live in a claustrophobic atmosphere only because the tenants have not agreed to vacate the tenanted premises. The daughters are also to be married and in case sons get married, naturally their wives and children require an additional accommodation. It is apparent that the tenant was somehow able to procure additional accommodation within the city of Kanpur Nagar for his son and daughter-in-law may be for a short period but he has not tried to make any effort to look for an alternative accommodation since the institution of the release proceedings. The tenant can also get two rooms constructed on his plot which has been purchased by him and this fact is not disputed that he has acquired an open piece of land by means of registered sale deed then I fail to understand what is preventing him to construct two rooms for his own use. It is surprising that the petitioner has all along contested the release application up till this stage. Sufficient amount of finance must have been spent by him which could very well be used in getting some constructions made on his own plot. It is also settled law that the tenant was liable to look and search for an alternative accommodation for himself after institution of eviction proceedings. In the circumstances, it is evident that the landlord has successfully established his bona fide need for the accommodation which was let out to the tenant. I come to a conclusion that the accommodation in question is bonafidely required by the landlord for himself and his family members and, therefore, it is liable to be released.
6. So far the question of comparative hardship is concerned, I have looked into various affidavits and two judgments and I find that the courts below have very well assessed the evidence and tried to balance the comparative hardship. The conclusion arrived at by the two courts that in the event of refusal of release, the landlord will suffer greater hardship, does not call for any interference. The findings on the 'bona fide need' and 'comparative hardship' are all findings of fact and it cannot be interfered in exercise of jurisdiction under Article 226 of the Constitution of India. Accordingly, the writ petition lacks merit and stands dismissed.
7. Lastly Sri K. K. Tripathi made a request that since the tenants have no alternative accommodation to go, if they are ousted suddenly, they will be left high and dry in the middle of the road. Assuming constructions have to be made on the open land or alternative accommodation has to be searched, it will require some time and, therefore, he may be granted one year time to vacate the accommodation in question.
8. This request was though objected by the learned Counsel for the landlord but considering the fact that it will be very difficult for the tenant to suddenly vacate the house where he has been living for such a long time. Further one year time appears to be too long and, therefore, I allow eight months' time to the tenant to vacate the disputed accommodation and handover vacant possession to the landlord. In the circumstances, I direct that the tenant shall continue to reside in the disputed accommodation up till 10th March, 2010 and handover possession to the landlord on or before 10th March, 2010. An undertaking shall be filed by the landlord within three weeks from today before the prescribed authority to this effect and also pay rent to the landlord at the rate of Rs. 1,000 per month till the date he vacates the accommodation in question. The fact of payment of Rs. 1,000 shall also be mentioned in the undertaking filed before the trial Judge.
9. With the aforesaid observations, the writ petition stands dismissed.