JUDGMENT Dilip Gupta, J.
1. The tenant has filed this petition for setting aside the order dated 4th May, 1989 by which the Prescribed Authority allowed the application filed by the landlord under Section 21(1)(a) of the U.P. Urban Buildings (Regulation of Letting, Rent & Eviction) Act, 1972 (hereinafter referred to as the ''Act") for eviction of the tenant from the accommodation in dispute as it was bona fide required by the landlord. The petitioner has also sought the quashing of the judgment and order dated 16th July, 2002 by which the Appeal filed by the tenant under Section 22 of the Act was dismissed.
2. The application under Section 21(1)(a) of the Act had been filed by four applicants Smt. Parbati, Smt. Laxmi Devi, Smt. Surja Devi and Smt. Basanti Devi. It was stated that the applicants jointly purchased the disputed house in the year 1958 with a view to reconstruct the same so that they may have sufficient accommodation for their family members; that because of the differences between the applicants, Smt. Laxmi Devi filed Original Suit No. 100 of 1966 for partition of her 1/4th share in the disputed house and ultimately the suit was decided on 28th May, 1975 on the basis of a compromise entered into between the parties wherein the share of each applicant was demarcated; that the applicants desire to reconstruct the portions falling in their respective share but it was not possible to do so unless the tenant vacated the building; that the tenanted premises consists of about 10 rooms, veranda, store and kitchen and was let out on monthly rent of Rs. 134.14 per month; that the tenant owns premises No. 127/128 wherein he can shift his business and can also obtain any other accommodation.
3. The tenant filed a detailed reply to the aforesaid application mentioning therein that the applicants did not bona fide require the accommodation in dispute; that in fact the applicants had sufficient alternative accommodation; that the major portion of the building was used for manufacturing of Ayurvedic medicines and that the tenant would suffer greater hardship in case the release application was allowed.
4. The Prescribed Authority found that only the need of Smt. Surja Devi applicant No. 3 /respondent No. 5 was bona fide and the need of other three applicants was not bona fide. It also found that Smt. Surja Devi was likely to suffer greater hardship if the release application was rejected and, therefore, ordered that the tenant shall vacate the premises falling in her share namely three rooms, one passage, servant quarter and open land, out of ten rooms occupied by the landlord.
5. The tenant filed an Appeal under Section 22 of the Act. During the pendency of the Appeal the tenant also filed an affidavit mentioning therein that Smt. Surja Devi had in the meantime purchased two more houses and both the aforesaid houses were spacious and, therefore, Smt. Surja Devi did not bona fide require the accommodation in dispute. The Appellate Court by the judgment and order dated 16th July, 2002 dismissed the Appeal.
6. I have heard Sri B.D. Mandhyan, learned Senior Counsel for the petitioners and Sri Atul Dayal, learned Counsel appearing for respondent No. 4.
7. Learned Senior Counsel appearing for the petitioners submitted that the Prescribed Authority as well as the Appellate Authority committed an illegality in holding that the need of Smt. Surja Devi was bona fide. He contended that Smt. Surja Devi possessed four houses namely (A) 47/72, Hatiya, Kanpur; (B) 87/6-D, Hiraganj, Kanpur; (C) 3-A/146, Azad Nagar, Kanpur, and (D) 3-A/85, Azad Nagar, Kanpur from where her need could be satisfied.
8. He further contended that the tenant was likely to suffer greater hardship in the event the application filed by the landlord was allowed but the Prescribed Authority as well as the Appellate Authority have wrongly inferred that the landlord was likely to suffer greater hardship.
9. Sri Atul Dayal, learned Counsel for the respondent-landlord, however, submitted that the aforesaid houses were not available to the applicant No. 3 Surja Devi and the Prescribed Authority as well as the Appellate Authority, on a proper appraisal of evidence on record, have recorded a categorical finding of fact that the landlord bona fide required the premises in dispute. He further contended that the landlord was likely to suffer greater hardship in the event the application was rejected and, therefore, the Prescribed Authority and the Appellate Authority committed no infirmity in recording such a finding.
10. I have carefully considered the submissions advanced by the learned Counsel for the parties and examined the materials available on record.
11. The first contention of the learned Senior Counsel of the petitioner is that the applicant No. 3 Surja Devi did not bona fide require the premises in dispute inasmuch as the aforementioned four houses belonged to her from where her need could be satisfied.
12. In so far as the house mentioned at Serial No. (A) is concerned, the Prescribed Authority observed that the house was very small and was occupied by an old tenant and no accommodation in the said house was in possession of applicant No. 3 or her family members. In respect of house mentioned at Serial No. (B), a report dated 10th May, 1984 was submitted by the Advocate Commissioner mentioning that it was occupied by two tenants namely Sardar Gurbachan Singh and Sardar Uttam Singh and that it was used for commercial purposes.
13. In respect of House mentioned at Serial No. (C) namely House No. 3-A/146, Azad Nagar, Kanpur, the Prescribed Authority has found that it is in fact owned by Sri D.K. Gupta son-in-law of the applicant No. 3 and that the applicant No. 3, her husband or her son have no right or share in the said House. The Prescribed Authority has also found that the applicant No. 3 and her husband Sri Hari Kishan Gupta who is a heart patient are living on the ground-floor of premises No. 3-A/146, Azad Nagar, Kanpur which is owned by the son-in-law. In respect of House mentioned at Serial No. (D) namely House No. 3-A,85, Azad Nagar, Kanpur, the Appellate Court has found that it is owned by Sri Bal Krishna Gupta who is the son of applicant No. 3 but the applicant No. 3 does not have good relations with her son and it is for this reason that the applicant and her husband are living with the son-in-law in House No. 3-A/146, Azad Nagar, Kanpur.
14. Thus, the Prescribed Authority and the Appellate Authority have found that the applicant No. 3 Surja Devi does not own any property in Kanpur except having 1/4th share in the property in dispute. The Prescribed Authority has also found that the part of the accommodation in tenancy and occupation of the tenant in premises No. 16/39 which has fallen to the share of applicant No. 3 after the mutual partition is most suitable for the purpose of residence of applicant No. 3 and her husband.
15. Sri B.D. Mandhyan, learned Senior Counsel for the petitioners submitted that the finding recorded by the Prescribed Authority that applicant No. 3 and her son do not have good relations is without any evidence and there is no reason why the applicant should not live with her son in House No. 3-A/85 mentioned at Serial No. (D). This contention cannot be accepted for more than one reason. The applicant No. 3 cannot be forced to live with her son and daughter-in-law and secondly a finding of fact has been recorded by the Prescribed Authority which has been confirmed by the Appellate Authority that the applicant No. 3 does not have good relations with the son and daughter-in-law. This finding is based on the fact that if there were having good relations, the applicant and her husband would be residing with the son and not with the son-in-law after the operation.
16. In Siddalingamma and Anr. v. Mamtha Shenoy the Supreme Court elaborately explained what ''bona fide' need is and the relevant observations are as follows:
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 this Court has held that a bona fide requirement must be an outcome of a sincere, honest desire in contra-distinction 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 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 a house of his own, the law does not command or compel him to squeeze himself dwell into lesser premises so as to protect the tenant's continued occupation in tenancy premises....
17. In Sarla Ahuja v. United India Insurance Co. Ltd. AIR 1999 SC 100, the Supreme Court also observed:
...When a landlord asserts that he requires his building for his own occupation the Rent Controller shall not proceed on the presumption that the requirement is not bona fide. When other conditions of the clause are satisfied and when the landlord shows a prima facie case it is open to the Rent Controller to draw a presumption that the requirement of the landlord is bona fide. It is often said by Courts that it is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without getting 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.
18. In Ragavendra Kumar v. Firm Prem Machinary and Co. AIR 2000 SC 534 the Supreme Court pointed out that the landlord has complete freedom to chose his requirement for residential purposes and it was observed:
...It is settled position of law that the landlord is best judge of his requirement for residential or business purpose and he has got complete freedom in the matter....
19. Learned Senior Counsel for the petitioners placed reliance upon the decisions of the Supreme Court in Deena Nath v. Pooran Lal 2002 (48) ALR 259 wherein it was observed:
The Legislature in enacting the provision has taken ample care to avoid any arbitrary or whimsical action of a landlord to evict his tenant. The statutory mandate is that there must be first a requirement by the landlord which means that it is not a mere whim or a fanciful desire by him; further, such requirement must be bonafide which is intended to avoid the mere whim or desire. The 'bonafide requirement' must be in praesenti and must be manifested in actual need which would evidence the Court that it is not a mere fanciful or whimsical desire. The legislative intent is made further clear by making the provision that the landlord has no other reasonably suitable residential accommodation of his own in his occupation in the city or town concerned. This requirement lays stress that the need is pressing and there is no reasonably suitable alternative for the landlord but to get the tenant evicted from the accommodation....
20. He has also placed reliance upon the decision of the Supreme Court in Kishan Chand v. Jagdish Prasad and Ors. 2003 All. CJ 2252 wherein "bona fide need" was explained and the relevant observations are:
There are thus, admittedly 13 rooms in possession of the landlord, though we do not have the user of the rooms....
21. The facts as they emerge from the pleadings of the parties clearly show that applicant No. 3 had no other accommodation in the city except having 1/4th share in the disputed house. It is this 1/4th share which has been released in her favour by the Prescribed Authority. In such circumstances, when the said applicant does not have any other house in the city it is difficult to hold that the need of the said applicant is not bona fide. It cannot be said that the need is arbitrary, whimsical or fanciful. The decisions relied upon by the learned Senior Counsel for the petitioners, therefore, do not help the petitioners. In fact the need is pressing as there is no suitable accommodation for the landlord. The Supreme Court in Julieta Antonieta Tarcato v. Suleiman Ismail 2007 AIR SCW 1538 observed that a landlady has every right to occupy her own premises and she cannot be told to share the accommodation with her relations. The relevant observations are as follows:
...The finding of bonafide personal need recorded by the Appellate Court is a finding of fact based on the evidence on record. We have considered the evidence on record and we find that the finding recorded by the Appellate Court did not deserve to be set aside. In fact, the High Court also was of the same view, but in the changed circumstances having regard to the events that took place during the pendency of the Writ Petition, the High Court interfered with the order of the Appellate Court. We hold that the High Court was not justified in doing so. It cannot be lost sight of that the premises which the appellant required for her personal bonafide need belonged to her. She was residing in those premises with other family members for many years. Unfortunately, she suffered an accident and in the absence of any other grown up male member in the family she was persuaded by her brother Lawrence to come and reside in his apartment which was one of the flats in the Ashoka Apartment and which was owned by him and his brother Tito. After residing there for several years, the appellant felt that she should not burden her brother any more and, therefore wanted to shift to her own accommodation which was then in occupation of the respondent. The Trial Court made much of the fact that the appellant had also pleaded her bonafide need of providing accommodation to other members of the family. While doing so the Trial Court completely lost sight of the fact that apart from the requirement of other members of the family, the appellant also required the premises for her own accommodation. Thus, even if the other members of the family no longer required the premises, the requirement of the appellant survived. She had every right to occupy her own premises and she could not be told that she should share accommodation with her brother in another apartment.
22. Sri B.D. Mandhyan, learned Senior Counsel for the petitioners also contended that the finding about comparative hardship in favour of the landlord is not correct. This contention cannot be accepted. There is nothing on the record to indicate that the tenant made any effort during the pendency of the application to find out any alternative accommodation.
23. In Faiyaz Khan v. 2nd Additional District Judge, Jhansi and Ors. 2006 (24) LCD 929, this Court observed:
Concept of comparative hardship can not be stretched to the extent of depriving the landlord of his property even if landlord is in real and imminent need. It has been brought on record that in adjoining town Dr. Amin was having a clinic even though he asserted that he attended that only off and on. In any case tenant did not show that he made any efforts to search alternative accommodation after filing of the release application. As held by the Supreme Court in B.C.Bhutada v. G.R. Mundada , this by itself was sufficient to tilt the balance of hardship against the tenant.
24. This apart, out of ten rooms in possession of the tenant only three rooms have directed to be vacated for the bona fide need of the applicant No. 3 Surja Devi. Thus, on the one hand the tenant will be retaining seven rooms while on the other hand the applicant No. 3 who does not own any other house in the city is not being able to obtain possession of her share in the disputed house where she can reside. The balance of hardship is clearly in favour of applicant No. 3.
25. The Prescribed Authority as well as the Appellate Authority have, on appraisal of evidence, recorded a categorical finding of fact regarding bona fide need and comparative hardship. The Supreme Court in Munni Lal and Ors. v. Prescribed Authority and Ors. clearly observed that while examining the findings of bona fide need and comparative hardship of landlord and tenant it is not for the High Court in the exercise of its jurisdiction under Article 226 of the Constitution to reappraise the evidence and come to its own conclusion which may be different from that reached by the District Judge or the Prescribed Authority.
26. This view has been reaffirmed by the Supreme Court in Surya Dev Rai v. Ran Chander Rai and Ors. 2003 (2) ARC 385 and Ranjeet Singh v. Ravi Prakash 2004 (1) ARC 613.
27. There is, therefore, no merit in this petition. It is, accordingly, dismissed.
28. After the judgment was delivered, learned Counsel for the petitioners made a prayer that some time may be given to the petitioners to vacate the premises in dispute and during this period the petitioners are ready to pay damages at the rate of Rs. 1800/- per month. In the facts and circumstances of the case two months' time is granted to the petitioners to vacate the premises in dispute provided they submit the following undertaking before the Prescribed Authority within three weeks from today:
1. That the petitioners shall pay damages at the rate of Rs. 1800/- per month beginning from the month of April, 2008 up to the date they handover the possession of the premises to the landlord.
2. That the petitioners shall not induct any other person in the premises.
3. That the petitioners shall handover peaceful possession of the premises to the landlord on or before the expiry of two months.
29. It is made clear that in the event the petitioners fail to give the undertaking within the aforesaid period or fail to comply with any of the terms of the undertaking, then in that case, it will be open to the landlord to get the decree executed.