JUDGMENT A.K. Yog, J.
1. The dispute relates to residential accommodation-House No. 254-255. Ghoshi Mohalla. Lal Kurti, Meerut Cant., Meerut. The accommodation, on the ground floor, consists of two rooms. The said house consists of ground floor and first floor. On the ground floor, landlady has in her possession the following accommodation--Two rooms--17' x 8' approx. 14' x 9-1/2' approx., one kitchen 3-1/2' x 3-1/2' approx. On first floor one room with asbestos cement roof cover 9' x 10' approx. with open roof 9' x 17' approx. The petitioner tenant has in his possession following accommodation--one rpom 14' x 8-1 /2' approx. Kitchen 3.9' x 4-1/2' approx. The following amenities are common-Gallery, Latrine and Bath.
2. The family of the landlady undisputedly consists of the following :
1. Smt. Vimla Agarwal Landlady
2. Avinash Agarwal Husband of landlady
3. Atul Son of landlady
4. Wife of Atul Daughter in law of landlady
5. One child
6. Km. Abha and Km. Asha Both unmarried daughters of landlady
7. Smt. Alka Married daughter of the landlady
3. According to the Landlady, the tenant (petitioner) had acquired another residential House No. 1/264 L.I.G. Shradhapuri, Kanker Khera, Meerut on the basis of agreement of sale executed by its owner Prem Kumar Yadav. It has also come on record that said house had a shop at Kanker Khera, Meerut, which is in the possession of the tenant-petitioner. It has come on the record that the said agreement of sale has been executed by said Prem Kumar Yadav in favour of wife of the petitioner tenant who also obtained possession in pursuance to the said agreement of sale. It has also come on record that the son of the tenant-petitioner Gurmeet Singh with his family is living in the said house and has also a shop therein for selling of articles of day to day use.
4. The perusal of the judgment and order dated 9.12.1997 passed by Prescribed Authority (Annexure-2 to the petition) also shows that Deepak Singh another son of the tenant petitioner is an attesting witness to the said agreement of sale and that he is resident of another House, namely, 117, Arya Nagar, Kanker Khera, Meerut.
5. The landlady Smt. Vimla Agarwal, respondent No. 3. filed an application under Section 21 (1) (a), U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. U. P. Act No. XIII of 1972 (for short called 'the Act'), for seeking release of aforesaid house 254-255 situate at Lal Kurti, Meerut, for obtaining accommodation in the tenancy of the petitioner on the ground that she required the same for self and her family and her need was bona fide and genuine and she was to suffer more hardship as compared to the petitioner in case of rejection of release application. Parties led evidence and Prescribed Authority on the basis of record allowed the said release application vide judgment and order dated 9.12.1997 (Annexure-2 to the writ petition) on the ground that tenant petitioner had acquired another vacant state residential building in the same city on the basis of the agreement and it is admitted fact that son of tenant-petitioner had been living in the said residential building (1/264 Shradhapuri, Kanker Khera, Meerut). The objection against release at the instance of tenant petitioner is not maintainable in view of Section 21 (1) Explanation (1) which reads :
"Where the tenant or any member of his family twho has been normally residing with or is wholly dependent on him) has built or has otherwise acquired in a vacant state or has got vacated after acquisition a residential building in the same city, municipality, notified area or town area, no objection by the tenant against an application under this sub-section shall be entertained..............."
6. The Prescribed Authority came to the conclusion that need of the landlady was genuine and bona fide and that she was to suffer more hardship as compared to the tenant-petitioner if release was refused. The Prescribed Authority, consequently, allowed the release application in favour of the landlady.
7. Feeling aggrieved, the petitioner-tenant filed Rent Appeal No. 18 of 1998, Sardar Harbir Singh v. Smt. Vimla Agarwal. During the pendency of the appeal, two reports of Court Amin's were brought on record. Copies of Amin's report dated 25.11.1998 and 24.7.1999 have been filed as Annexures-3 and 4 to the writ petition.
8. From the perusal of the Amin's report dated 25.11.1998 (Annexure-3 to the writ petition), two things clearly transpire :
(i) That the number of rooms available with the landlady are only three, both on ground floor and first floor.
(ii) The tenant had acquired residential building in the same city where his son was found living with his family.
9. Amln's report (Paper No. 27-Ga) noted that the room on the first floor measure 9' x 10' approx. and used as Store room. It was in deplorable condition (i.e., not worth habitation). The Appellate Authority on the basis of evidence on record affirmed finding of the Prescribed Authority on this issue of the need of genuine and bonafide of the landlady as well as the finding on the issue comparative hardship in favour of the landlady.
10. Not being satisfied, tenant has preferred the present writ petition seeking to challenge Judgment and order dated 9.12.1997 (Annexure-2 to the petition) passed by Prescribed Authority under Section 21 (1) (a) of the Act and the judgment and order dated 22.1.2002 passed by Appellate Authority/ Additional District Judge. Court No. 14, Meerut. respondent No. 1 dismissing the Rent Appeal No. 18 of 1998 under Section 22 of the Act (Annexure-9 to the writ petition).
11. The only argument made on behalf of the petitioner is that the Commissioner's report could not be relied upon without referring to the objections filed by the petitioner against them. The copies of the said objection have been filed in the shape of affidavits of the petitioner dated 27.8.1999 and 13.9.1999 (Annexures-5 and 7 to the writ petition).
12. The argument of the learned counsel for the petitioner, though attractive superficially only, one will on deeper scrutiny, find no force in it. The Commissioner's report was relevant only for finding/proving the factual condition of the one room on the first floor.
13. This Court has independently considered the respective cases of the parties and found that there is no dispute regarding the accommodation vis-a-vis family members of the landlord and the tenant.
14. It is clear that there are at least three units in the family of the landlady. At least, one room for landlady and her husband, one room for her son Atul and his wife with one child, and third room for two grown up daughters is required to be used as their Bed-Rooms. The room, said to be available at the first floor (with Asbestos Cement roof-measuring 9' x 10' approx.) cannot be said to be worth-habitation. A family, like that of the landlady, will certainly require one more room for being used as store and miscellaneous purpose. Landlady cannot be directed to live in one room alone without any other room like Drawing, Dining, etc.
15. Besides the above, in the Explanation of Section 21 (1) (a) of the Act, is attracted and tenant cannot object to the release application filed by the landlord as he has 'acquired' a residential building - wherein his son Is admittedly living.
16. The contention of the learned counsel for the petitioner that said Explanation in the Act applies only when the tenant acquires a residential building by maturing title is misconceived and against the express intent borne out from the said provision. This Explanation uses the expression 'ACQUIRES' which means 'de facto' possession-irrespective of title or status-and may be as an allottee or licensee.
17. In view of the above, I find no manifest error apparent on the face of record in the impugned orders nor find it a fit case for interference by this Court in exercise of Its jurisdiction under Article 226, Constitution of India.
18. At the end learned counsel for the petitioner has, however, filed an affidavit giving unequivocal condition with a free will that he shall vacate the accommodation in question provided six months time is granted to him from the date of this judgment to deliver peaceful and vacant possession to the landlady.
19. In view of the above undertaking given by the petitioner through his son Deepak Singh, who is deponent of the said affidavit on record, I direct that the petitioner shall handover peaceful possession of the accommodation in question on or before 31.8.2002 subject, however, the following conditions are promptly complied by the parties to which the learned counsel for the parties have assured on instructions of their clients being taken to comply with the same :
(1) The tenant petitioner shall file before the concerned Prescribed Authority, on or before 8.3.2002 an application along with his affidavit giving an unconditional undertaking to comply with all the conditions mentioned hereinafter.
(2) Petitioner-tenant shall not be evicted from the accommodation in his tenancy upto 31.8.2002.
Tenant-petitioner, his representative/assignee, etc., claiming through him or otherwise. If any, shall vacate without objection and peacefully deliver vacant possession of the accommodation in question on or before 31.8.2002 to the landlord or landlord's nominee/representative (if any. appointed and intimated by the landlord) by giving prior advance notice and notifying to the landlord by Registered A.D. post (on his last known address or as may be disclosed in advance by the landlord in writing before the concerned Prescribed Authority) time and date on which landlord is to take possession from the tenant.
(3) Petitioner shall on or before 8.3.2002 deposit entire amount due towards rent etc. up to date i.e., entire arrears of the past, if any, as well as the rent for the period ending on the 31.8.2002.
(4) Petitioner and everyone claiming under him undertake not to 'change' or 'damage' or transfer/alienate/assign in any manner, the accommodation in question.
(5) in case tenant-petitioner fails to comply with any of the conditions or directions contained in this order, landlord shall be entitled to evict the tenant-petitioner forthwith from the accommodation in question by seeking police force through concerned prescribed authority, (6) If there is violation of the undertaking of any one or more of the conditions contained in this order, the defaulting party shall pay Rs. 25,000 (Rupees twenty five thousand only) as damages to the other party, besides rendering himself liable to be prosecuted for committing grossest contempt of the Court.
20. The writ petition is dismissed subject to the above conditions and observations.