S.U. Khan, J.Heard Shri B.N. Rai, learned Counsel for the petitioner and Shri T.S. Dabas, learned Counsel who has appeared for legal representatives of respondent No. 1 who were substituted at the place of respondent No. 1 through order dated 8.7.2008 passed on substitution application.

2. This is landladys writ petition arising out of eviction/release proceedings initiated by her against original tenantrespondent No. 1 on the ground of bonafide need under section 21 Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 in the form of Rent Case No. 3 of 1984. Prescribed Authority/IIIrd Additional Civil Judge, Kanpur Nagar dismissed the release application through judgment and order dated 20.8.1985. Against the said judgment and order landladypetitioner filed Rent Appeal No. 199 of 1985. Vth Additional District Judge, Kanpur Nagar dismissed the appeal through judgment and order dated 18.3.1989 hence this writ petition.

3. The Courts below held that landlady could construct a house in open plot available to her hence her need for the additional accommodation was not bonafide.

4. Property in dispute is a house rent of which is Rs. 7.50 per month and is situate in Kanpur which is most expensive city of Uttar Pradesh. Landlady had purchased the house in dispute bearing No. 108/86, Gandhi Nagar, Kanpur through registered sale deed dated 20.12.1980. She further stated that she was residing in a house in Rambagh, Kanpur and paying rent of Rs. 561/ per month which contained one room and one store and her family consisted of five persons.

5. During pendency of proceedings before the Courts below landlady started residing on the first floor of the accommodation in dispute after making some constructions. She further stated that in her new house all the family members were sleeping in one room. Tenant asserted that some more rooms were available to the landlady on the first floor of the accommodation in dispute. However, Lower Appellate Court on the basis of Commissioners report found that the said version of the tenant was not correct. Tenant had further pleaded that another tenant of the landlady i.e. Shiv Prasad had vacated a portion. Appellate Court held that the said portion was in the form of land.

6. Appellate Court clearly held that financial condition of the landlady was such that she could construct drawing room etc. over the land vacated by Shiv Prasad. Appellate Court further held that a garage of 6 feet x 3 feet and a galary of 10 feet x 1 feet on the ground floor was available to the landlady and she could use the same for her residential purpose.

7. However, a technical fault pointed out by the Trial Court in the notice was found by the Appellate Court to have been removed.

8. In respect of comparative hardship Appellate Court found that tenant had not made any effort to search alternative accommodation. However, Appellate Court held that tenant was residing for the last 40 years (when release application was filed) and his financial condition was not such that he could arrange another accommodation.

9. In my opinion findings recorded by the Courts below on both the issues are patently erroneous in law. No landlord can be compelled to make construction in order to satisfy his need but leave the tenant untouched. Garage and gallery are not meant for residence. When release application was filed landlady was residing in a tenanted house. Tenanted house available with the landlord cannot be taken into consideration while considering her bonafide need for her own house vide G.K. Devi v. Ghanshyam Das, AIR 2000 SC 656 [LQ/SC/2000/74] . Fact that landlady had to make some constructions over first floor of the accommodation in dispute and start residing there completely proved her bonafide need.

10. Rent of the accommodation in dispute is negligible. By paying virtually no rent tenant must have saved a lot of money. Money saved is money earned. Not making any effort to search alternative accommodation is sufficient to decide the question of comparative hardship against tenant vide "Badrinarayan Chunilal Bhutada v. Govindram Ramgopal Mundada, AIR 2003 SC 2713 [LQ/SC/2003/44] ." Making a bald assertion that he is poor does not absolve the tenant to make effort for searching alternative accommodation.

11. Accordingly, landlady fully proved bonafide need and balance of hardship also lay in her favour. The view taken by both the Courts below is utterly erroneous in law.

12. When release application has been rejected by both the Courts below and High Court in writ jurisdiction finds the judgments to be erroneous in law, it is not always necessary to remand the matter. Ultimate relief can be granted to the landlady in the writ petition itself vide G.C Kapoor v. N.K. Bhasin, 2001 (45) ALR 808 (SC) and Ram Kumar Barnwal v. Ram Lakhan, 2007 (68) ALR 136 (SC) = 2007 (54) AIC 52. In the first authority release application rejected by the prescribed authority, Appellate Court and the High Court was finally allowed by the Supreme Court. In the second authority a judgment of the High Court was reversed through which writ petition of the landlord directed against concurrent judgments against him was dismissed by observing that fresh release application could be filed by the landlord. Supreme Court held that High Court should have finally decided the matter and remanded the case to the High Court for the said purpose.

13. Accordingly, writ petition is allowed. Both the impugned judgments and orders are set aside. Release application of the landlady is allowed.

Tenantsrespondents are granted six months time to vacate provided that :

1. Within one month from today tenants file an undertaking before the prescribed authority to the effect that on or before the expiry of aforesaid period of six months they will willingly vacate and handover possession of the property in dispute to the landladypetitioner.

2. For this period of six months, which has been granted to the tenants to vacate, they are required to pay Rs. 3,000/ (at the rate of Rs. 500/ per month) as rent/damages for use and occupation. This amount shall also be deposited within one month before the prescribed authority and shall immediately be paid to the landlady.

14. In case of default in compliance of any of these conditions tenantsrespondents shall be evicted through process of Court after one month. It is further directed that in case undertaking is not filed or Rs. 3,000/ are not deposited within one month then tenantsrespondents shall be liable to pay damages at the rate of Rs. 1000/ per month since after one month till the date of actual vacation.

15. Similarly, if after filing the aforesaid undertaking and depositing Rs. 3,000/ the house in dispute is not vacated on the expiry of six months then damages for use and occupation shall be payable at the rate of Rs. l.000/ per month since after six months till actual vacation. It is needless to add that this direction is in addition to the right of the landlady to file contempt petition for violation of undertaking and initiate execution proceedings under section 23 of the.