ORDER S.U. Khan, J.
1. This is landlady's writ petition arising out of eviction/release proceedings initiated by her against tenant respondent No. 2 Nand Lal Narula on the ground of bona fide need under Section 21 of U. P. Act No. 13 of 1972 (U. P. Rent Regulation Act).
2. Property in dispute is a house adjoining portion of which is in possession of the landlady. Landlady's husband was employed in Municipal Board, Jhansi and was going to retire on 31.8.1981. Landlady filed release application in April, 1981, stating therein that by virtue of his employment husband of the landlady was provided a house by the Municipal Board and after retirement he would have to vacate the said house hence accommodation in dispute should be released. It was further stated that the adjoining portion of the accommodation in dispute already in possession of the landlady was too small to satisfy her need. It was stated by the landlady and categorically admitted by the tenant that the tenant had also acquired another house. Prescribed authority, Jhansi, before whom the release application was registered as P.A. Case No. 29 of 1981, allowed the release application on 12.2.1982. Against the said judgment and order tenant respondent No. 2 filed R. C. Appeal No. 12 of 1982. District Judge, Jhansi on 8.11.1982, allowed the appeal hence this writ petition by landlady.
3. The application was filed under Section 21 (1)(a) as well as Section 21 (1A) of the Act. Under the latter provision, it is provided that if landlord of a building is in service and has been provided residential house by his employer then at the time of his retirement tenanted house may be released. In respect of the said provision, the learned District Judge held that as a small portion adjacent to the accommodation in dispute was already in possession of the landlady hence no relief under the said provision could be granted.
4. In respect of the ground of bona fide need under Section 21 (1)(a), the appellate court held that even though during pendency of release application landlord had retired but subsequent events could be considered only when they helped the tenant and not when they helped the landlord. The Court can only express its astonishment and shock at this approach. Such type of approach is not only fatal to scheme of the Act but borders on cruelty to landlord. The appellate court did not disagree with the prescribed authority, that the accommodation adjacent to the house in dispute was insufficient for need of the landlady. However, appellate court took the view that need will have to be determined on the date of filing of the release application and as on that date landlady's husband was in service and occupying the house provided by the employer hence on the date of filing of the release application there was no bona fide need. The appellate court did not give any weight to the fact that after about four months of the filing of the release application landlady's husband was to retire and in fact retired. Even if need is considered on the date of filing of the release application there was no occasion to deny the release on the ground of availability of the house provided by the employer. If employee is occupying a house provided by the employer then his position is only that of tenant and possession of the house as tenant is not to be considered as an alternative accommodation available to the landlord as held by the Supreme Court in G.K. Devi v. Ghanshyam Das, . It is only such occupation of the landlord, which is as of right, which can be taken into consideration as an alternative accommodation available to the landlord. If a landlord is occupying an accommodation either as licensee or as a tenant or as an employee, the same is irrelevant and cannot be taken into consideration while considering his bona fide need for release of the accommodation in the occupation of the tenant.
5. The judgment and order passed by the lower appellate court is utterly erroneous in law, based upon wholly irrelevant consideration and arrived at by ignoring relevant material and circumstances.
6. Writ petition is accordingly allowed.
7. Judgment and order passed by the lower appellate court is set aside and that of prescribed authority is restored.