JUDGMENT Rakesh Tiwari, J.
1. This writ petition has been filed challenging the validity and correctness of orders dated 3.3.2005 and 2.8.2005, passed by Additional District Judge, Court No. 5 and the Prescribed Authority respectively.
2. The brief facts of the case are that the landlord-respondent filed release application under Section 21 (1) (a) of the U. P. Urban Buildings (Regulation of Letting, Eviction and Rent) Act, 1972, praying for release of the tenanted accommodation of house No. 106/30, Gandhi Nagar, Kanpur. The petitioner is tenant of the aforesaid house of monthly rent of Rs. 150. The tenancy of the petitioner was terminated vide notice but he did not vacate the accommodation. According to the landlord, the accommodation in his possession consisted of three rooms, two store rooms, verandah-cum-kitchen, latrine, bath-room and a box room, which was insufficient for his large family whereas the petitioner-tenant has four rooms, latrine, bathroom, store, angan and one tin shed which has been placed without the permission of the landlord.
3. The petitioner, in his written statement admitted that he is tenant in the premises, in dispute on a rent of Rs. 150 per month. It was also stated by him that though he denied the title of the respondent as landlord but whenever rent was remitted to the respondent it was not accepted. The notice served by the landlord was also replied. In his written statement, the petitioner stated that the landlord has got 8 rooms on the ground floor, covered varandah, kitchen, latrine, bath-room and two rooms on the second floor which is more than sufficient for his family. Regarding denial of title he stated that ^^og ;kph ls fu;fer iz'uxr Hkou ds ^loRo dk izek.ki= ekWax jgk gS A**
4. Per contra, the landlord stated that his wife was suffering from serious ailment, therefore, one room was required for her. He needed baithak for his son Sri Pradeep Kumar, who was an advocate of Income Tax and Sales Tax and there were two school going children. He stated that he needed at least one bed room and one living room as his two other sons posted outside often pay visit to the landlord and his married daughter often come with children to live with them and he needed at least one room as drawing room and one rest room, one room for school going children, one room for dining purpose and his son Sri Pradeep Kumar also needed the accommodation for carrying on his profession.
5. The Prescribed Authority granted the release application vide order dated 2.8.2004, holding that the need of the landlord was genuine and comparative hardship of the landlord was greater than the tenant.
6. Aggrieved by the aforesaid order, the petitioner filed appeal before the District Judge, which was transferred to Additional District Judge, Court No. 5, Kanpur Nagar. Appeal of the petitioner was dismissed by the impugned order dated 3.3.2005.
7. Before the appellate court, the petitioner urged that besides the house in possession of the landlord, he has also got a house in Govind Nagar, Kanpur which is available to him but the landlord, in reply, came out with plea that two tenants are in occupation of the house at Govind Nagar, Kanpur though small part of it is vacant, which cannot be used to live there separately from the family with his ailing wife who is serious heart patient and that his need would be more conveniently met if the accommodation in dispute is released.
8. Contention of counsel for the petitioner is that both the courts below have stretched the need of the landlord for the purpose of release. He submits that the courts below have commuted material illegality in considering the need of the sons of the landlord who are posted outside and the married daughter who is residing in Gorakhpur.
9. He further submits that the landlord has a guest room, a drawing room and a dining room besides bed rooms in the house in his possession and even otherwise, the release for above purposes do not constitute bona fide need merely because Sri Pradeep Kumar is an advocate. It is stated that Sri Pradeep Kumar only needs accommodation for professional purposes and one room for himself and the other for children. Thus, the need of the landlord has been exaggerated.
10. Much emphasis has been laid by the counsel for the petitioner regarding alternate accommodation available to landlord in the house No. 124-E/77, Govind Nagar, Kanpur, for use by him for his residential purposes. He stated that the Commissioner's report is a procured document as otherwise, there are 8 rooms in occupation of the landlord. It is stated that the Commissioner has wrongly stated in his report that 3 rooms are not fit for use as residential accommodation and that 2 rooms on the second floor are not actual rooms but are in the shape of barsati. It is vehemently urged that the courts below have accepted every ipse dixit of the landlord and that one room is being used as puja ghar, one for store and one is box room, one room for kabaar. After all, these rooms can be used for residential purposes.
11. It appears from record that plot/house No. 117/11-2/184 Kakadeo was given by the petitioner to Dr. Madhu Kumar, where a nursing home in the name and style of Ramkali Nursing Home is being run by her and where his son Sri Ashok Kumar has shifted his family and is also running a P.C.O. His another son Sri Ashok Kumar has an office at Pandu Nagar in the name and style of Siddhartha Sales. His third son Sri Arvind Kumar is running medical store in the name and style of Kumar Medical Store at Pandu Nagar. The courts below have treated the aforesaid accommodations of sons of the petitioner as alternative accommodation.
12. The contention of counsel for the petitioner that the courts below have wrongly treated the aforesaid houses as alternative accommodations. It is stated that the case of the petitioner is that the house of his son at Pandu Nagar cannot be treated as alternative accommodation since it is not being used as residence by the petitioner and in so far as accommodation given to Dr. Madhu Kumar is concerned, it has been given to her by execution of a Will by Smt. Ramkali Nigam wife of the petitioner as Dr. Madhu had served her during her ailment as she was suffering from breast cancer and she ultimately died.
13. It is admitted position as per paragraph 23 of the writ petition that the plot/house was purchased by Smt. Ramkali Nigam, wife of the petitioner. She is said to have executed a Will in favour of her daughter Dr. Madhu. The objection that she had no funds to purchase the said plot No. 371, Block H, Scheme No. 1, Kakadeo, Kanpur Nagar has been answered by saying that parents of Smt. Ramkali were very sound and she had herself sufficient funds to purchase the plot but it is nowhere explained and proved by documentary and oral evidence whether her parents actually gave any financial assistance to her for purchase of the plot and from where she got sufficient funds herself. These assertions are unproved and cannot be relied upon for any benami transaction. It appears that the plot was purchased by the petitioner in the name of his wife as there is nothing on record to the contrary.
14. Counsel for the petitioner candidly admitted that the copy of the aforesaid Will was not filed. He, however, submitted that it had been given to the counsel by the petitioner but was not filed by him, which has now been filed in the writ petition.
15. Admittedly also, the Will was not filed before the courts below. It is also admitted fact that the house constructed on the plot purchased by the wife of the petitioner was given to her daughter Dr. Madhu. The courts below have rightly held, in the circumstances, that the Will was not genuine and was not proved. The courts below have held that the petitioner has an alternative accommodation at Kalka Deo where Sri Arun Kumar, second son of the petitioner has got accommodation in the name and style of Siddhartha Sales and the other son Sri Arvind Kumar Nigam has purchased house No. ML/113/1 Jarauli in the name of his wife which has now been sold away.
16. In fact, the petitioner has given various reasons for not placing reliance on the findings of the courts below and he has even gone to the extent of denying the report of the Commissioner in favour of the landlord that 3 rooms in his portion are in such dilapidated condition that they are not fit for use much less for residential use and that 2 rooms on the second floor are not actual rooms but in fact are barsati.
17. In view of the admitted position that the petitioner himself had purchased plot and constructed a house which was later on given to Dr. Madhu through the alleged Will for nursing home; that his sons are doing flourishing business and had acquired office and residential accommodation, the need of the tenant-petitioner cannot be said to be genuine or bona fide. The courts below after considering entire pleas of the tenant-petitioner, have rightly held that the need of the landlord is genuine, bona fide and he has shortage of accommodation.
18. The petitioner's wife conveniently gifted the plot to Dr. Madhu Kumar, her daughter on basis of Will which was not proved. His other son acquired a house and sold it away. His other sons are doing their business in different accommodations. The petitioner, who is all alone, can live with any of his sons even with Sri Ashok Kumar, who is living with his family in Ramkali Nursing Home.
19. For the reasons stated above and for the reasons that the petitioner had denied the title of the landlord in his written statement and by his subsequent conduct, no case for interference in the writ jurisdiction is made out.
20. The writ petition is accordingly dismissed. Interim order dated 21.3.2005, extended from time to time, is vacated. The petitioner will vacate the disputed accommodation within three months from today. If he fails to vacate the accommodation within the stipulated period, the respondent-landlord will be at liberty to evict the petitioner with police aid. No order as to costs.