S.K. Gupta, J.Sri Hari Om Verma has approached this Court questioning the validity of the order dated 19.10.2005 passed by prescribed authority/First Addl. Civil Judge (Senior Division), Lucknow directing the release of the premises in question in favour of the landlady exercising its jurisdiction under Section 21 of U.P. Act No. 13 of 1972 and order of its affirmation dated 19.10.2005 passed by Addl. District and Sessions Judge Court No. 12th, Lucknow in Rent Control Appeal No.24 of 2002.

The background facts in a nutshell essentially are as follows:

2. The respondentlandlady filed an application under Section 21 of U.P. Act 13 of 1972 (in short Act) for ejectment and release of the shop in dispute on the ground of bonafide and genuine need alleging therein that she is ownerlandlady of House No.401/100, Abdul Aziz Road, Lucknow, situate on a land measuring 600 sq.ft. and on the ground floor of the building there are 5 shops and on the first floor of the said building there are two rooms, one kitchen, one kothari, toilet, small open terrace and on the second floor there is a room measuring 8"x8" and open roof. The applicant along with his family consists of 20 members. Out of the 5 shops mentioned, one is in the occupation of the application in which Rizwan Ali is running a PCO and other four are in the tenancy of other tenants. Out of the said 4 shops one is in the tenancy of the petitioner tenant at a monthly rent of Rs.12.50 wherein the petitionertenant is running a business of text books & stationary in the name of Shamsi Book Depot.

3. It is further stated in the application under Section 21 of the Act, that out of 5 sons of the applicant landlord, 4 are unemployed and the applicant requires the shop in tenancy of the opposite parties for the residential purposes of her family.

4. It is further stated that out of the 4 sons of the tenant only Hari Ram Verma is sitting in the shop in dispute and other sons of the tenant are already employed and earning livelihood and more over all the daughters of the tenant are also in service. The accommodation in possession of the landladyapplicant is not sufficient considering the size of her family. The landladyapplicant has no other alternative suitable accommodation for her family.

5. It appears that during the pendency of the application under Section 21 of theSri Kanhaiya Lal, tenant of the premises in dispute expired on 4.5.1988 and was substituted by his legal heirs. The bonafide need of the landlady was contested by the tenant and inter alia stated that the need of the landlady is neither genuine nor bonafide and stated that sufficient accommodation is already available with the landladyapplicant for her and her family members and the shop under the tenancy of the opposite party tenant can not be converted into residential. It was further stated that the landladyapplicant always tried to harass the answering tenant and several attempts were made forcibly to evict the answering opposite parties from the shop in question and as such was compelled to file the suit for permanent injunction and the said suit was decreed on 27.1.1998.

6. After the exchange of pleadings and affidavits the prescribed authority allowed the application filed under Section 21 of theby order dated 18.3.2002. Aggrieved by and dissatisfied with the order dated 18.3.2002, an appeal was filed by the tenants which was registered as Appeal No.24 of 2002 in the Court of Addl. District and Sessions Judge Room No.12, Lucknow. However, the appeal was dismissed vide judgment and order dated 19.10.2005 affirming the judgment and order of the prescribed authority dated 18.3.2002. Hence this writ petition.

7. It is notable that this writ petition challenging the impugned order passed by the Court below has been filed only by Hri Om Verma one of the legal heirs of the erstwhile tenant late Sri Kanhaiya Lal.

8. It is submitted by the learned Counsel for the petitioner that the landladyapplicant has sought release of the disputed shop under the tenancy of the petitioner for residential purposes which is being used for commercial purposes by the tenant and the said shop can not be released for the residential purposes. It is further submitted that the landlady has already got another accommodation in her possession in Village Hamirpur, Pargana Mohan Lalganj, District Lucknow as such the need of the landlady is not bonafide and also submitted that the comparative hardship also tilts in favour of the tenant.

9. On the other hand learned Counsel for the respondent No.3 has supported the judgments passed by the Courts below and have submitted that the need of the landlady is bonafide and genuine and the comparative hardship also tilts in favour of landlady. It is further submitted that the family of the landlady consists of 23 members and have got only three rooms in her possession and 4 sons of the landlady are unemployed. On the other hand all the children of the original tenant Kanhaiya Lal are well settled and earning their livelihood, if they are evicted they would not suffer any hardship.

10. Heard the learned Counsel for the parties and perused the record.

11. The size of the family and the accommodation in the possession of the landlady is not seriously challenged by the petitioner. According to the landlady 23 members in the family have got only three rooms, one kitchen and small terrace in her possession and 4 of her sons are already unemployed and considering the size of the family members of the landlady the accommodation is too small. The contention of the learned Counsel for the petitioner that the commercial accommodation can not be sought for the residential purpose has no force. At this stage it will be useful to refer to the 3rd proviso to Section 21 of the:

"21. Proceedings for release of building under occupation of tenant

(1) The Prescribed Authority may, on an application of the landlord in that behalf, order the eviction of a tenant from the building under tenancy or any specified part thereof if it is satisfied that any of the following grounds exists namely

(a) that the......................

(b) that the.......................

Provided that.....................

Provided further................

Provided also that no application under clause (a) shall be entertained

(i) for the...............

(ii) in the case of any residential building, for occupation for business purposes."

12. The bare reading of the aforesaid proviso clearly indicates that there is no bar in releasing the commercial accommodation for the purpose of residential building, although no application under Section 21 is maintainable in case of any residential building for occupation or business purposes.

13. Learned Counsel for the landlord has relied upon the judgment of this Court in Govind Narayan v. VIIIth Addl. District Judge, Allahabad, 2008 (1) ARC 526. This aspect of the matter has been dealt by this Court in Paragraph 7 of the above noted judgment, where in it has observed as follows:

"The Courts below wrongly held that the commercial accommodation could not be release for residential purposes. Firstly landlord was seeking release for establishing his chamber. Secondly under the the restriction is otherwise, i.e. residential building can not be released for commercial purpose, however, there is no bar against releasing the commercial building for residential purposes."

14. The Courts below have also held that the entire family of the landlady is residing in the disputed building i.e. 401/100 Abdul Aziz Road and placed reliance on the documents filed by the landlady i.e. Nagar Nigam Nirwachan Namawali 2000, Identity Card issued by the Election Commission and other documents relating to school of the children wherein the address of the aforesaid house has been mentioned. Moreover it is also held by the lower appellate Court that even if it is presumed that landlady has agricultural land and accommodation in Gram Hamirpur, Tehsil Malihabad, District Lucknow, even then, the said accommodation can not be taken in consideration since it is out side the municipal limit of Lucknow Nagar Nigam. Both the Courts below have recorded the findings of fact in favour of landlady and the said findings are passed on evidence as such this Court cannot substitute its own opinion.

15. The Honble Supreme Court in Shiv Sarup Gupta v. Dr. Mahesh Chand Gupta, (1999) 6 SCC 222 [LQ/SC/1999/664] : 1999 SCFBRC 330, has held:

"The term bonafide or genuinely refers to a state or mind. Requirement is not mere desire. The degree of intensity contemplated by "requires" is much higher than in mere desire. The phrase "required bona fide" is suggestive of legislative intent that a mere desire which is the outcome of whim or fancy is not taken note of by the rent control legislation. A requirement in the absence of felt need which is an outcome of sincere, honest desire, in contradistinction with a mere pretence or pretext to evict a tenant, on the part of the landlord claiming to occupy the premises for himself or for any member of the family would entitle him to seek ejectment of the tenant. Looked at from this angle, any setting of the facts and circumstances protruding the need of the landlord and its bona fides would be capable of successfully withstanding the test of objective determination by the Court. The judge of facts should place himself in the armchair of the landlord and then ask the question to himselfwhether in the given facts substantiated by the landlord 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 failure on the part of the landlord to substantiate the pleaded need, or, in a given case, positive material brought on record by the tenant enabling the Court drawing an inference that the reality was to the contrary and the landlord was merely attempting at finding out a pretence or pretext for getting rid of the tenant, would be enough to persuade the Court certainly to deny its judicial assistance to the landlord."

16. In Gulab Bai v. Nalin Narsimonia, (1993) 3 SCC 483, the Honble Supreme Court has held:

"the words reasonable requirement undoubtedly postulate that there must be an element of need as appeared to more desire or wish. The distinction between desire and need should doubtless be kept in mind but not so as to make even the genuine need as nothing but a desire."

17. This Court further in Smt. Tara Devi v. District Judge & others, 1979 ARC 382, has held on the basis of the Honble Supreme Court decision rendered in Muttu Lal v. Radhey Lal, AIR 1974 SC 1596 [LQ/SC/1974/162] as under:

"It is for the Court to determine the truth of the assertion and also whether it is bona fide. The test which has to be applied is an objective test and not a subjective one and merely because the landlord asserts that he wants the accommodation for his personal use would not be enough to establish that he requires it for his personal use."

18. In Pramod Kumar v. VI Additional District Judge, Bijnor and others, 2000 (1) ARC 185 [LQ/AllHC/1999/1950] , this Court has defined bona fide need on the basis of decisions of the Honble Supreme Court rendered in Muttu Lal v. Radhey Lal, AIR 1974 SC 1596 [LQ/SC/1974/162] and Bega Begum v. Abdul Ahad Khan, AIR 1979 SC272:1986 SCFBRC 346, as under:

"The word bona fide means genuinely and sincerely i.e. in good faith in contradiction to mala fide. The requirement of an accommodation is not bona fide if it is sought for ulterior purposes but once it is established that the landlord requires the accommodation for the purpose which he alleges there is of ulterior motive to evict the tenant that requirement should be bona fide."

19. Both the Courts below have on meticulous evaluation of evidence found that requirement of the landlord is proved and comparative hardship also tilts in favour of landlord. Two Courts below after considering the entire evidence available on record have given concurrent finding on the bonafide need of the landlord and comparative hardship.

20. No other point is pressed by the petitioner.

21. I do not find any infirmity or illegality in the impugned orders. For the reasons stated above, the writ petition is dismissed. No order as to costs.

22. Petitioner is granted three months time to vacate the disputed premises provided that within one month from today tenant files an undertaking before the prescribed authority to the effect that on or before the expiry, of the aforesaid period of three months he will willingly vacate and hand over the possession of the property in dispute to the landlordrespondent No.3. In case of default in compliance of the aforesaid condition, petitionertenant shall be evicted through process of Court after one month.