1. This writ petition is directed against the judgment of the V Addl. District Judge, Allahabad dated 13-8-1982 passed under Section 22 of the U.P Act No. 13 of 1972. The learned A.D.J reversed the judgment of the prescribed authority by which the petitioner landlady's release application in respect of house No. 129 Khushal Parvat, Allahabad was allowed. Smt. Rajkumari Padma Singh had applied for release of the said house in her favour on the ground that she herself was residing in block No. 9/4 Sheonagar Colony, Allapur, Allahabad on payment of Rs. 300/- per month. She was living with her son aged about 14 years and daughter aged about 18 years. Both were students in the Boys High School and Allahabad University respectively in Class X and B.A Part II.’ A niece of the petitioner was also permanently living with her besides the servant. The petitioner's husband was a cancer patient and was operated at Swaruprani Hospital at Allahabad in 1979, who expired in May,’ 1980. Thereafter the petitioner, since had become widow, had to call elderly members from her relations to slay with her in order to look after the growing children. The petitioner was a widow and it was not safe for her to go back and stay in the village. The petitioner wanted to permanently live in her own house 129 Khushal Parvat, Allahabad. The O.P was occupying the house in question and an unrecognised, and unauthorised institution named Swamiji Bal Vidya Mandir was said to be running in the said house of which Sri Prem Narain Sarswat claimed to be the manager. In fact the house in question was let out to Sri Prem Narain Sarswat for residential purposes but later he had started to run an unrecognised school therein and he himself shifted to some other house. The petitioner although owned the house in question was in pressing and bona fide need of the same as she was compelled to live in a rented accommodation in Allapur, Allahabad by paying Rs. 300/- per month. In spite of requests the opposite party failed to vacate the house in question which necessitated the filing of the application under Section 20(1) of the U.P Act No. 13 of 1972. The petitioner belongs to a royal family (erstwhile Zarnindars) and the accommodation available to her on rent was wholly insufficient and she needed more accommodation for her living.
2. The opposite party contested the claim of the petitioner and pleaded that the house in question was allotted in favour of Swamiji Bal Vidya Mandir and opposite party No. 1 is its Manager. It was pleaded that the institution was recognised as educational institution and also registered under the Societies Registration Act where more than 350 students were studying.” Several teachers and other employees were working in the institution. The opposite party denied the genuineness and bona fide need of the landlady petitioner.
3. The learned prescribed authority stated in his judgment that admittedly the applicant belongs to a well-to do and respectable family. She needs more accommodation than generally required by a family of the size of her family. It is also admitted that the petitioner was living in a tenanted accommodation. Before that she was living at Allahabad with her relation as she had no place to live. This fact was found from the judgment of the prescribed authority in P.A Case No. 357/74 Smt. Padma Singh v. Prem Narain. The trial court considered the question of comparative hardship of the parties and also the provisions of Section 2(b) which provides protection from the application of Section 21 of the U.P Act No. 13 of 1972. The fact that no doubt the institution in question, namely Swamiji Bal Vidya Mandir was a registered society under the Societies Registration Act. The mere fact whether the institution was registered under the Societies Registration Act was sufficient to attract the provisions of the protection in respect of educational institution. After appreciating the record the prescribed authority found that the opposite party was not entitled to the benefit of Section 2(b) of the U.P Act No. 13 of 1972.
4. The objection of the opposite party that in 1975 when the application for release was moved by the petitioner the same was rejected, thus the second application moved in 1980 for release was barred by the principle of res judicata. The learned prescribed authority repelled the contention of the opposite party. Before the prescribed authority it was submitted by the opposite party that the petitioner being a well to do person is living in a rented house and may either live in a rented house or she may send her children to hostel. The need of the petitioner was found to be more genuine than that of the opposite party, the release application was allowed on 8-2-1982.
5. The opposite party filed an appeal under Section 22 of the Act before the District Judge, Allahabad which was finally decided by the V Addl. District Judge, Allahabad. Before the appellate Court also it was found as a fact that opposite party Prem Narain Sarswat is occupying the house in question on a monthly rent of Rs. 135/- per month. The appellate court also found as a fact that at the time of hearing of the appeal the petitioner was living at 9/4 Sheonagar, Allapur, Allahabad at Rs. 300/- per month.
6. Before the appellate court also the opposite party had submitted that the petitioner's case of keeping a servant and niece along with her son and daughter in the rented accommodation was far from truth. The son and daughter could suitably be accommodated in some hostel. This fact was also denied that the petitioner was living in a rented house in Sheonagar colony, Allapur, Allahabad. It was stated that the petitioner was living in a well furnished Kothi with her family. The opposite party reiterated that Swamiji Bal Vidya Mandirwas a Junior High School duly recognised and the interest of the students would suffer if the building was released in favour of the landlady.
7. The Addl. District Judge recorded a finding in appeal that the earlier judgment in release proceedings of 1975 was not a bar or res judicata in maintainability of the proceedings initiated in 1980 by the petitioner. The only bar was of period of one year limitation from the date of rejection of the earlier application under Section 21(1)(1) of the Act. Thus the objection of the opposite party about maintainability and res judicata raised was rightly negatived according to Rule 18(2) of the rules framed under the Act.”
8. So far as the question of the need of the landlady and her bona fides and balance of convenience and comparative hardship is concerned, the appellate court referred to the allegation of the opposite party that till the filing of the application for release the petitioner was living with her father Dr. Sajjan Singh at Rewan and she wanted to settle at Allahabad in connection with the education of her children and she had no other house at Allahabad except the house in dispute. Since the petitioner owned and possessed considerable landed property in the district of Allahabad, it was not possible for her to look after and manage the property at Allahabad from Rewan. The learned appellate court observed in his judgment that the need of the landlady has to be judged objectively. It was said that ‘bona fide’ means genuinely and seriously i.e good faith in contradiction to ‘mala fide’. The word-required’ signifies that mere desire on the part of the landlord is not enough and there should be an imminent need and the landlord must show, the burden being upon him, that he genuinely required the accommodation. The bona fide need is not to be examined with the eye of a surgeon who operates after scrutinising every minute detail. The question, according to the appellate court, was to be considered in a broader perspective.
9. The learned Addl. District Judge accepted the arguments and case of the petitioner that the landlady-petitioner comes of a respectable family of an ex-Zamindar and she in normal course will require a larger accommodation to live. The need of the petitioner for more space and living accommodation to accommodate the niece, who was dependent upon the petitioner, was also taken to be a ground to be considered in deciding the need and bona fides for accommodating the family members though strictly speaking the niece, servant, mother-in-law may not be included in her family members relying on 1981 All Rent Cas 627, Keshav Narain Sharma v. I Addl. District Judge, Lucknow, 1979 All Rent Cas 479 : (1980 All LJ 99), Smt. Rani Chaturvedi v. Shiv Narain. The appellate court was also of the view that though during the pendency of the case the daughter of the petitioner, although was married, was not proved to have left Allahabad as she was studying in Allahabad University. It was also said by the appellate Judge that “it may be that the members of the family of the landlord may be very few yet according to their status it may be necessary for them to have a larger accommodation to live comfortably but by itself will not deny them a right to move an application for release.” The appellate court affirmed the finding of the prescribed authority that the need of the landlady-petitioner for residential accommodation is bona fide and the tenanted accommodation in her occupation is hardly sufficient for her requirement.
10. The crucial point about the balance of convenience and hardship was found to be not in favour of the landlady-petitioner by the appellate court. The appellate court was of the view thai since the opposite party was running a school by the name of Swamiji Bal Mandir, he was entitled to the benefit of Section 21(8) of the U.P Act, No. 13 of 1972. The said Junior High School was temporarily recognised for running primary Section in 1969 on year to year basis and the said temporary recognition was not extended for the year 1981-82. Thus at the time of judg ment of the prescribed authority. Swamiji Bal Vidya Mandir. 0. P. No. I. was not a recognised institution and no benefit of section 21(8) of the Act could be claimed by the appellant and in the circumstances the need, comparative hardship and balance of convenience was to be examined between the tenant — 0. P. and the petitioner. The maintainability of the release application on the ground of prohibition of Section 21(8) of the Act was not available to the opposite party but the appellate court proceeded to consider the hardship and balance of convenience even in the absence of the recognition of the Swamiji Bal Vidya Mandir. The appellate court was of the view that even in the absence of recognition since the institution was running in the house in question, it cannot be said that the balance of convenience was in favour of the petitioner. He thus allowed the appeal of the opposite party by the impugned judgment.
11. This petition was filed on 21-11-1982 and thereafter admitted. Before the admission of the writ petition a supplementary affidavit was filed by the petitioner and it was stated that the Assistant Inspector of Girls Schools, Allahabad made a surprise inspection and found that out of elevan teachers nine are untrained. There was lack of science apparatus in the institution, books in the library were insufficient and the registration of the society of the institution was not renewed since 29-8-1966. There was no building for junior classes. There was no students in Class VIII Only six students were in Class VII and Class VI each. The Swamiji Bal Vidya Mandir was never granted any permanent recognition. It was also stated that as per the conditions required for recognition of Junior High School the institution could never be recognised and the appellate court was wrong in observing that the recognition could not be given due to the fact that the litigation was pending.
12. Counter affidavit was filed on behalf of the opposite party. The opposite part in the counter affidavit denying the facts pleaded in the writ petition as was done in the court of the prescribed authority and the appellate court, raised one point in para 34 that the petitioner purchased plot No. 346 Circular Road, Allahabad and she is residing in the aforesaid plot, as such she is not in need of the accommodation in dispute, ln view of the said fact the writ petition and the application for release were liable to be rejected. A copy of the Nagar Mahapalika extract CA 3 was filed to show that the assessment of the H.I.G plot No. 3/46, Circular Road, Allahabad was raised by the said document.
13. In the rejoinder affidavit the petitioner reiterates the facts sfated in the writ petition and in respect of para 34 of the counter affidavit it was stated that she was to vacate the tenanted accommodation because the landlord of the said house was pressing to vacate the same since 1980. There was no option for the petitioner but to purchase a house or to take a house on rent as she was to reside permanently at Allahabad. She also stated to be employed herself in Kendriya Vidyalaya. She applied for allotment of a plot in 1986 after depositing Rs. 25,000/- with the Allahabad Development Authority’: In 1989 she got a flat of two rooms and one drawing room under the self-finance scheme. The petitioner under the compelling circumstances vacated the tenanted accommodation and entered in the small accommodation of the A.D.A flat which is wholly insufficient for her living seeing the status of the family. She pleaded that at present also her family consists of one married daughter living permanently with her because her husband is residing out of India in connection with his employment, two daughters and one son, namely, Anoop Singh, his wife Smt. Vijai Lakshmi and son's daughter Km. Ananya Singh. Besides the “family members four servants namely, Rajendra Singh, Badri Prasad, Amrit Lal and Smt. Jaiwati alias Sethaeen are also living with the petitioner. The accommodation so obtained from the A.D.A is too scanty and insufficient to accommodate herself alone. The petitioner in her affidavit offered the respondent to shift his school at the circular Road after paying the rent at the market rate and the accommodation in question be released in her favour. The petitioner also offered her Kotwa house as alternative accommodation so that the O.P may serve the rural children for proper education purposes. The petitioner reiterated the need of the house in questi on to be more genuine and bon afide seeing the family status. The premises in question deserves to be released in her favour.
14. The perusal of the judgment of the learned A.D.J impugned shows that after recording the finding to the effect that “in the instant case it is not disputed that the landlady comes of a respectable family of an Ex-Zamindar and she in normal course will require a larger accommodation to live”, he also observed in his judgment that in view of the decision in Kamla Ahuja's case referred to above, it may be that the members of the family of the landlord may very few yet according to their status it may be necessary for them to have a larger accommodation to live comfortably but by itself will not deny them a right to move an application for retease.”
15. Thus from the findings of both the courts below it is established that the petitioner was on the date of application for release living in the city of Allahabad in a rented accommodation consisting of two rooms as alleged on payment of Rs. 300/- per month. The appellate court reversed the finding about the comparative’ hardship between the parties which was recorded by the trial court in favour of the petitioner. The sole ground for reversing the said finding of the trial court was the provisions of Section 21(8) of the U.P Act No. 13 of 1972. The appellate court was of the view that even in the absence of the recognition the opposite party had succeeded in proving that the balance of convenience lay in their favour and the finding of the prescribed authority on this count was held to be not sustainable. The fact that the so called institution Swamiji Bal Vidya Mandir was not recognised by the Basic Shiksha Parishad or the District Basic Shiksha Adhikari is not denied. It is also not denied that on the date of application and prior to it the said institution was never recognised permanently and year to year recognition for running the primary school was given by the Basic Education Department. In the rejoinder affidavit the petitioner pointedly stated that the said school could not be recognised as they do not fulfil the requisite conditions prescribed by the Basic Shiksha Adhikari. In the supplementary affidavit filed by the petitioner before admission of the present writ petition it is categorically stated that the registration of the society allegedly running the Swamiji Bal Vidya Mandir was not renewed since 29-8-1966, which fact has not been controverted by the opposite party in the counter affidavit. The further allegation in the supplementary affidavit filed at the time of admission of the writ petition vide para 3 thereof was that out of 11 teachers nine were untrained, no science apparatus was available in the school, there was lack of books in the library and the registration of the society was not renewed after 29-8-1966. The said allegations were not controverted by the opposite party. Thus the very basis for allowing the appeal of the opposite party was only on the ground that about 350 students were studying in the school and that was a good ground for treating comparative hardship and genuine need in favour of the opposite party. It is to be noted that the exemption is provided under Section 21(8) of the U.P Act No. 13 of 1972. The provisions of Section 21(8) of the Act are quoted as under;
“Nothing in clause (a) of sub-section (1) shall apply to a building let out to the State Government or to a local authority or to a public sector corporation or to a’ recognised educational institution unless the. Prescribed Authority is satisfied that the landlord is a person to whom clause (ii) or clause (iv) of the Explanation to sub-section (1) is applicable.”
16. It is not disputed that according to the definition of ‘recognised institution’ under Section 2(g) of the U.P Recognised Basic Schools (Junior High Schools) (Recruitment and conditions of service of Teachers) Rules of 1978, it (recognised school) means any Junior. High School being an institution belonging to or wholly maintained by the Board or local authority or any local body recognised by the Board as such. The provisions of Section 2(e) of the Act defines ‘local body. According to the said definition ‘local body’ means the Zila Parishad, Antarim Zila Parishad, Nagar Mahapalika, Municipal Board, Town Area Committee or Notified. Committee, as the case may be. It is not: controverted by the opposite party that the said school of the opposite party was not recognised and its registration was not renewed after 1966. Thus the status of the so called school cannot be treated as a Basic School or an educational institution. Merely a person after getting an accommodation on rent starts teaching work with the help of number of other persons either qualified, trained or unqualified or untrained persons, itself would not be a relevant consideration or circumstance which may be taken into account while considering and comparing the hardship of the tenant and landlord while deciding a release application. In the decision reported in (1985) 2 All Rent Cas 369, Amar Nath v. IV Addl. District Judge, Meerut it was held by this Court that even though there is a concurrent conclusion by the prescribed authority and the appellate authority that the need of the landlord was genuine and bona fide the order of release can, however, not be denied only on the ground of erroneous consideration of the issue about comparative hardship by the appellate Court. In the present writ petition the question that survives for consideration is that when the Additional District Judge affirmed the finding of bona fide and genuine need of the petitioner for the accommodation in question. The reversal of the judgment of the prescribed authority on the ground that there were about 350 staudents reading in the school and a number of teachers were employed therein was a fact and circumstance which led him to hold that the hardship of the tenant-O.P would be more If the release application was allowed. This finding is patently erroneous and not sustainable in view of the settled law. It is not disputed that the institution may be exempted from operation of the provisions of the U.P Act No. 13 of 1972 only in the cases spelled out in Section 21(8) of the Act. A similar matter was considered in 1982 All Rent Cas 624 : (1982 All LJ NOC 82), Atar Singh v. Ill Addl. District Judge, Altgarh. It is not disputed in the present case that the registration of the society alleged to be running the institution was not renewed and the school was not recognised by the Basic Education Authorities. In the decision aforementioned relying on another decision of the Supreme Court reported in AIR 1962 SC 458, Board of Trustees Ayurvedic and Unani Tibia College, Delhi v. State of Delhi, it is observed that under the Societies Registration Act even though a society cannot be treated as a corporate body in the manner in which a company incorporated under the Companies Act can be treated to be a corporate body still, there are provisions in the said Act which enable the society to sue or be sued in the name of its office bearers under Section 6 of the Societies Registration Act. A society can own a property vide Section 5 of the Act. Very often educational institutions are run by the societies registered under the Socities Registration Act, 1860. In the present case the opposite party cannot claim any benefit either of a registered society or a recognised educational institution.
17. Thus I have no hesitation in holding that the lower appellate Court committed a manifest error of law in reversing the judg ment of the prescribed authority after holding that the need of the petitioner-landlady was bona fide and genuine, on the ground of comparative hardship of the parties the judgment of the prescribed authority was reversed. The reason for reversing the judgment of the prescribed authority given by the appellate Court is patently wrong and unwarranted, which is liable to be quashed.
18. This petition was filed in 1982 and now when the petition is heard it is 1994. About more than 12 years have elapsed in between. The record of this case shows that the petitioner has been seeking release since 1974 and the present proceedings arose out of the petition filed in 1982. If the initial period is counted for the litigation for release the period would be 19 or 20 years by now. In the counter affidavit it has been stated in para 34 that the petitioner purchased plot No. ¾ Circular Road, Allahabad and she is residing in the aforesaid plot. As such she is not in need for the accommodation in dispute. In view of the said fact the application of the petitioner is liable to be rejected. This is a new fact whichl happened during the pendency of the writ petition. In reply to para 34 of the counter affidavit the petitioner stated in paras 36 and 37 of the rejoinder affidavit that the petitioner was occupying the tenanted two room accommodation, 9/4 Sheonagar Colonagar Colony, Allapur, Allahabad and the landlord of the said house was pressing the petitioner to vacate and she was compelled to vacate the house of Allapur. There were only two options available for the petitioner either to take another house on rent or to purchase another house for the time being. It is also stated that the petitioner is employed in Kendriya Vidyalaya, Allahabad. These facts have not been controverted or denied by the opposite party although after receipt of the copy of the rejoinder affidavit on 9-11-1993 the supplementary counter affidavit was filed by the opposite party. None of the facts stated in that rejoinder affidavit has been denied or controverted by the opposite party. There fore, it cannot be said that new facts were stated in the rejoinder affidavit and the opposite party was not given opportunity to rebut or controvert the same. The mere allegation of the opposite-party that the petitioner purchased a plot at Circular Road, Allahabad is not sufficient to say that the application for release became liable to be rejected.
19. The learned counsel for the opposite party placed reliance on (1987) 2 All Rent Cas 176, Smt. Malti Sharma v. The VI Addl. District Judge, Lucknow, where in it was observed that it is now well settled that intervening facts can also be taken into account while determining the question of bona fide need. Another decision (1988) 1 All Rent Cas 536 : (1988 All LJ 837), Tribhuvan Nath Mehrotra v. District Judge, Allahabad is cited for the same proposition that if subsequent events which have taken place and have been controverted by the respondent, it would be appropriate that the matter will be considered by the appellate court when the same is remanded to it. It appears that the learned counsel for the opposite party considered it necessary to lay emphasis on the point that if the writ petition is allowed the issue of determining the comparative hardship between the parties deserves to be decided afresh by the appellate Court. 1 shall deal with this aspect of the matter at a later stage.
20. The learned counsel for the opposite party placed reliance on (1981) 3 SCC 103 : AIR 1981 SC 1711. Hasmat Rai v. Raghunath Prasad. The learned counsel placed reliance on para 14 of the said judgment. The learned counsel pointed out the observations of the Supreme Court.
“Once an appeal against decree or order of eviction is preferred, the appeal being a continuation of suit, the landlord's need must be shown to continue to exist at appellate stage. If the tenant is in a position to show that the need or requirement no more exists because to subsequent event, it would be open to him to point out such events land adjudicate the same. Otherwise the landlord would derive unfair advantage.”
21. Lastly the learned counsel for the opposite party placed reliance on (1985) 1 SCC 251 : AIR 1985 SC 207, Variety Emporium v. V.R.M Mohd. Ibrahim Naina., wherein it was ob served by the Supreme Court in para 16
“No authority is needed for the proposition that, in appropriate case, the court must have regard to events as they present themselves at the time when it is hearing the proceeding before it and would the relief in the light of those events.”
22. The learned counsel for the petitioner submitted that subsequent events after the final judgment of the appellate court, in proceedings for release of the house cannot be taken into consideration in writ petition. He submitted ‘that there is a finality attached under Section 22 of the Act. The case reported in (1992) 2 All Rent Cas 592, Pharma Traders v. VII Addt. District Judge. Kanpur has been placed by the petitioner's counsel. It is argued that the appellate court affirmed the findings of the prescribed authority that the need of the petitioner-landlord is genuine and bona fide, which is a final finding recorded in her favour. He further submitted that tenant-respondent in the present writ petition has legal right to support the judgment of the appellate authority on factual and legal aspect as it existed on the date of decision in appeal by the appellate court. It is submitted that the concurrent findings about the genuine and bona fide need for the house in favour of the petitioner-landlord is finding of fact and it cannot be re-examined and appreciated in the present writ petition. The submission of the learned counsel for the petitioner is that this court has to examine the error of law and illegal exercise of jurisdiction by the appellate court in reversing the judgment of the prescribed authority about the comparative hardship of the tenant in case the release application is allowed. Since the question of comparative hardship was illegally decided by the appellate court in favour of the tenant on the ground that in case the release application of the landlord is allowed the interest of 350 students and 11 teachers would suffer. The landlady is possessed of means and she can acquire another accommodation in the city of Allahabad suiting her requirements though she may be required to pay higher rent. The appellate court further held that even in the absence of recognition of the school the tenant succeeded in proving balance of convenience in his favour. The learned counsel for the tenant-respondent have not been able to justify the reasonings and legality of the observations of the appellate authority that since the landlord is possessed of means and she may acquire another accommodation according to her requirements at higher rent in the city of Allahabad. The settled law is that the landlady if proves the genuine and bona fide need for the house cannot be asked to go for another accommodation, simply on the ground that she possessed means and may acquire another house even by paying higher rent. The rent control legislation was not enacted to permanently deprive the landlord of the right to use and occupy the property even if he succeeds in provsng the pressing and bona fide needs simply for the reason that the release of the house would cause hardship to the tenant. This Court while deciding the writ petition under Art. 226 of the Constitution has to examine the legality and correctness of the judgment impugned.
23. The question is whether subsequent events occurring during the pendency of the writ petition be taken note or not. The learned counsel for the petitioner submitted that subsequent events are not to be taken note by the High Court in view of the judgment of the Supreme Court reported in (1981) 3 SCC 103 : AIR 1981 SC 1711, Hasmat Rai v. Raghunath Prasad, which is a Constitution Bench Judgment. He submitted that the judgment of (1985) 1 SCC 251 : AIR 1985 SC 207, Variety Emporium v. V.R.M Mohd. Ibrahim Naina. is a Division Bench decision. The judgment of (1981) 3 SCC 103 : AIR 1981 SC 1711, Hasmat Rai v. Raghunath Prasad is binding and is to be followed under Art. 141 of the Constitution. The learned counsel for the petitioner submitted that the binding nature of the aforesaid two decisions has been considered by this Court in (1992) 2 All Rent Cas 592, which have been affirmed by Hon'ble Supreme Court while dismissing the S.L.P No. 14136 of 1992 on 27-11-1992.
24. Thus I am of the view that the subsequent event of acquisition of a two room flat at Circular Road, Allahabad in 1986 from A.D.A is not to be taken a ground for consideration in this writ petition.
25. Although I have held in the above portion of this judgment that subsequent events during pendency of writ petition is not to be considered in deciding the writ petition in view of the Supreme Court's Constitution. Bench Judgment, still if the new facts and events which took place during the pendency of the writ petition when taken into account, the position would remain the same. The judgments placed and relied by the O.P show that if the facts of subsequent events are controverted and denied then it becomes necessary for the High Court to remand the matter for a fresh adjudication on the question of fact. The cases cited by the learned counsel for the O.P show that in all those cases the subsequent events and facts were controverted and denied. But in the present the facts, as have been already slated by the opposite party in the counter-affidavit and replied by the petitioner in the rejoinder affidavit, leave no room to doubt that the petitioner while occupying the rented accommodation at Sheonagar. Allapur, Allahabad consisting of two room accommodation and she was compelled to vacate it as the landlord of the said house was insisting her to vacate the same, she had no option but to go for another rented house or purchase a house. The fact’ that she took a plot “of two room accommodation and drawing room in self-finance scheme of A.D.A at Circular Road, Allahabad is admitted to the petitioner as well as the opposite party. The fact that the status of the petitioner being a member of royal family of Ex-Zamindar, who requires more accommodation in comparison to other people, ‘has been found by the prescribed authority as well as the lower appellate court. The question whether the plot acquired at Circular Road, Allahabad consisting of two rooms and one drawing room was sufficient need not detain the Court on this point. The rented accommodation of the petitioner was also of a two room flat in Sheonagar, Allapur, Allahabad. The position remains the same. The petitioner-landlady in 1980 being widow was living with her son and daughter, who were being educated at that time. Later the daughter was married but she stayed with the mother as her husband was abroad in connection with his employment and the son married and got issues living with the petitioner in the same house with servants. These facts stated in the rejoinder affidavit, although a supplementary counter affidavit was filed after filing of he rejoinder affidavit, have not been controvered. Thus there is no option but to accept the uncontrovered averments of the petitioner. The petitioner in the rejoinder affidavit reiterated that she is willing to give the accommodation at Circular Road on rent to the opposite party at the market rate but she needs her house in question, which is admittedly a spacious house and fulfils the need of the petitioner according to the number of family members and her family status. This fact has also not been controverted by the opposite party.
26. I have to consider seriously whether the case is to be remanded to the appellate court for giving finding on the issue of subseqeunt events happened in this petition. If the facts have been denied and disputed that the petitioner is employed in Kendriya Vidyalaya, her daughter with her children son and daughter-in-law with grand children are living with the petitioner in the scanty accommodation at Circular Road, in the supplementary counter affidavit by the opposite party, the case wouid have been remanded for decision on the said issue. In the facts of the present case when it is not denied that the institution was not recognised, its registration was not renewed after 1966 the averments in the supplementary affidavit that nine out of eleven teachers are untrained and the institution could not be called as recognised institution the inference drawn by the lower appellate court was wholly perverse and unwarranted. The petitioner had to suffer for more than 12 years on account of the erroneous judgment of the lower appellate court reversing the findings of the prescribed authority. The position remained the same for the petitioner to have a shelter in a two room and drawing room accommodation at Circular Road Allahabad. Since the original proceedings for release started in 1974 and the present one giving rise to the present writ-petition in 1980, which remained pending and is now going to be decided, I do not consider it necessary or appropriate to remand the case for recording findings on the question of facts, which are not disputed by the opposite party in the present writ petition.’ I thus come to the conclusion that the need’ of the petitioner stood finally adjudicated by the courts below to be bona fide and genuine and the appellate Court was wrong in reversing the judgment of the prescribed authority on the ground of comparative hardship between the parties. I have also recorded reasons, which have been elaborated above in this judgment. On account of the uncontroverted facts it is not necessary at all to remand the matter for deciding the factual allegations about the new events. The petitioner has already suffered for a period of more than 12 years at least and in fact she needed the house in question even before the said period since the filing of her release application in 1974. The opposite party cannot be permitted to take advantage of unauthorised, unrecognised and unregistered educational institution, which the opposite party claimed to be running with unqualified and untrained teachers allegedly imparting education to the students. The opposite party cannot be said to be doing good to the children and future citizens by imparting such education through unqualified and untrained teachers for his personal business adventure. For the aformentioned consideration of the facts the writ petition is allowed, the judgment of the lower appellate Court dated 13-8-1982 is set aside. The costs of the writ petition shall be paid by the contesting opposite party to the petitioner, which I assess at Rs. 5000/-.
27. Petition allowed.
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