JUDGMENT Anjani Kumar, J.
1. By means of present writ petition under Article 226 of the Constitution of India, the petitioner-landlord challenges order dated 13th October, 1987, passed by the appellate authority, copy whereof is annexed as Annexure-14 to the writ petition, whereby the appeal filed by the tenant-contesting respondent under Section 22 of the U. P. Act No. 13 of 1972, against the order passed by the prescribed authority was allowed.
2. In short, the facts of the present case are that the petitioner-landlord filed an application under Section 21(1) (a) of the U. P. Act No. 13 of 1972, in short the 'Act', for the release of the aforesaid accommodation in question in favour of the landlord as the landlord requires bona fide the same for his personal requirement, as asserted by him in his application under Section 21 (1) (a) of the Act. The case set up by the landlord is that the accommodation in question is situated on the first floor of the building, whereby the family of the landlord is residing and the family of the landlord consists of himself, his wife, his two married sons, their wives, two sons of the elder son of the petitioner and also a daughter of his elder son. Besides this, it was also asserted that the house in which the petitioner-landlord was also living was extremely insufficient for the growing family and that there has been consistent quarrel of the wife of the petitioner and the wife of his elder son on account of the fact that the elder son of the petitioner is from the first wedlock. It is further asserted by the petitioner-landlord that during the pendency of the aforesaid application on the quarrel between the stepmother and the son has gone to such an extent that due to such anxiety the landlord got heart attack. These facts were brought by the landlord on record during the pendency of the application before the prescribed authority with the relevant documentary evidence regarding petitioners' having suffered with heart attack. It has further been alleged by the landlord in his application that there is a huge building in occupation of the tenant near the station behind the Octroi Post, which the tenant can use as the office for the alleged purposes for which the tenant is using the accommodation in question. The landlord further stated that the Union (tenant) is not using the premises, as they have already a bigger and spacious accommodation and in fact the accommodation in question is being used by the truck drivers and other employees of the truck operators for illegal purposes and copy of F.I.R. was also placed before the prescribed authority, which says that the same was lodged when it was found that the premises was used by some unauthorised persons for illegal purposes. On the aforesaid ground the landlord sought release of the accommodation in question in his favour for his bona fide requirement, as stated in the application. On the question of comparative hardship, it is stated that in fact Union is not carrying on any activity from the accommodation in question, as they have already got another spacious accommodation, as stated above, from where they are carrying on their activity of the Union. The accommodation in dispute, as stated above, is being used by the truck drivers etc. and the tenant will have no hardship, what to say. too more hardship than the landlord that the accommodation in question is released in favour of the landlord.
3. The prescribed authority vide its order dated 21st February, 1987, copy whereof is annexed as Annexure-13 to the writ petition, allowed the application filed by the landlord-petitioner. Aggrieved thereby, the tenant-contesting respondent preferred an appeal, as stated above, before the appellate authority as contemplated under Section 22 of the Act. Before the appellate authority, the landlord-petitioner contended that the view taken by the prescribed authority that the accommodation in question is bona fide required is based on an alleged letter said to have been written by the elder son of the petitioner-landlord, whereby he has demanded the enhancement of the rent of the accommodation in question, otherwise it is threatened that the accommodation in question will be got vacated. The appellate authority has considered the aforesaid letter and also the affidavit filed by the landlords son and arrived at the finding that the view taken by the prescribed authority regarding the bona fide requirement of the landlord deserves to be reversed and reversed the same and held that the accommodation in question Is not required bona fide by the landlord for the purpose which is mentioned in his release application. On the question of comparative hardship the appellate authority has categorically held that in fact no activity is being carried out from the accommodation in question, as the Union has already got in possession a spacious accommodation in front of the Octroi Post. The appellate authority held that the landlord has to establish his bona fide need and once the bona fide need is made out, the comparative hardship has to be seen. Since the bona fide need has not been proved, the landlord cannot get the accommodation released. The appellate authority arrived at the conclusion that "Thus in view of above discussion, I hold that there was no bona fide and genuine need of the applicant to get the accommodation released and therefore there was no further need of comparing the hardships."
4. Learned counsel appearing on behalf of the petitioner-landlord repeated the same arguments before this Court as found favour before the prescribed authority, but reversed by the appellate authority. Particularly, emphasis was on the letter written by the elder son of the landlord. The appellate authority has given cogent reasons with which I do not see any reason to defer that the view of the appellate authority that the prescribed authority has overlooked the very important document, i.e. paper No. SS/C which is a letter written by Anil Kumar the elder son of the landlord. The said letter 55/C says that the rent of Rs. 150 has fixed about 10 years back and the enhancement of the rent was demanded at least at Rs. 1,500 per month. The letter goes on to say that in case the enhancement is not agreeable, then the accommodation may be vacated. This letter paper No. 55/C was written on 3rd February, 1982 and the present application of release was filed on 16th September, 1982. The appellate authority therefore found that the findings of prescribed authority required to be set aside and appellate authority found that the need of the landlord in this view of the matter cannot be said to be bona fide. In this view of the matter and in view of the law laid down by the Apex Court in the case in Surya Dev Rai v. Ram Chander Rai and Ors., (2003) 6 SCC 675. which has been relied upon by learned counsel appearing on behalf of the landlord-respondent. The Apex Court has held in Para 38. sub-para (8) of the aforesaid judgment, which is reproduced below :
"38. Such like matters frequently arise before the High Courts. We sum up our conclusion in a nutshell, even at the risk of repetition and state the same as hereunder :
(8) The High Court in exercise of certiorari or supervisory jurisdiction will not convert itself into a court of appeal and indulge in reappredation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character."
5. Learned counsel appearing on behalf of the petitioner-landlord relied upon a decision of this Court in N. S. Datta and Ors. v. VIIth Addl. District Judge, Allahabad and Ors., 1984 ARC 113. The relevant portion of Paragraph 26 of the aforesaid judgment relied upon by learned counsel for the landlord is reproduced below :
"26.................................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...............Moreover, the nonavailability of alternative accommodation to the tenant is In itself not the adequate ground to reject the landlord's application."
6. The same view has been expressed by this Court in the case in Smt. Tara Devi v. IIIrd Addl. District Judge, Allahabad and Ors., 1995 (1) ARC 273. Paragraphs 17, 18 and 19 of the aforesaid judgment relied upon by learned counsel for the landlord is reproduced below :
"17. It was further pointed out by this Court in its decision in the case of Subba Rao and Anr. v. VIIth Addl. District Judge, Deoria and Ors., 1993 (1) ARC 362, that 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. It was further observed that 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 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 ensure the availability of the demised premises to the landlord on his successfully establishing the bona fide requirement of the same for the purposes envisaged in that section. It may be noticed in this connection that where the language of the main enactment is dear 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 a 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.
18. In its decision in the case of Bega Begum v. Abdul Ahmad Khan, 1986 SCFBRC 346, the Apex Court had observed that while it was no doubt true that the tenant will have to be ousted from a house if decree of eviction had been passed yet such an event by itself could not be a valid ground for refusing a decree for eviction.
19. It may further be noticed that as observed by this Court in its decision in the case of N. S. Datta and Ors. v. VIIth Addl. District Judge, Allahabad and Ors., 1984 (1) ARC 113. 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 non-availability of alternative accommodation to the tenant is not in itself an adequate ground to reject the landlord application for release."
7. In view of the facts, referred to above, to me it appears that the cases relied upon by learned counsel for the petitioner do not help the petitioner.
8. In view of the law laid down by the Apex Court as well as by this Court, I do not find that the judgment impugned in the present writ petition suffers from any such error, which may warrant interference by this Court under Article 226 of the Constitution of India. This writ petition, therefore, has no force and is accordingly dismissed.