JUDGMENT S.D. Agarwala 1. This is a petition under Article 226 of the Constitution of India arising out of the proceedings under section 21 of the U P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U. P. Act No. 13 of 1972), hereinafter referred to as the 'Act'. 2. The premises in dispute is a portion of the first floor of house No. 5-A, Beli Road, Allahabad. Petitioner, L. M. Trivedi, is tenant of the said premises. Original landlady was Smt. Firdaus Fatima Naseer who died on 6th August, 1978. In her place now names of respondents 2 to 5 have been substituted. Parvez Nasser, Masood Naseer, and Shahid Naseer respondents 2, 3 and 4 are her sons and Smt. Shahwaz Khan respondent No. 5 is her daughter. On 11-2-1978 late Smt. Firdaus Fatima Naseer filed an application for release under section 21 of the Act. At that time, when the application was filed, landlady was Reader in the University of Allahabad. In the application for release need set up was to the effect that she required accommodation for her library. The accommodation was also required for Masood Naseer for opening an office as at the time of filing of the release application Massod Nasser was practicing was an Advocate. The further need set up was that Shahid Nasser and Masood Naseer are of marriageable age and consequently for want of accommodation their marriages were being postponed. 3. This release application was contested by the petitioner. The need set up in the release application was emphatically denied and one further aspect was pleaded by the tenant viz. that originally the entire upper story of the house No. 5-A, Beli Road Allahabad was allotted to the petitioner, thereafter partition is alleged to have taken place between the landlady and her sister Dr. Smt. Shabbir Fatima. After partition, Dr. Smt. Shabbir Fatima moved an application under section 21 of the Act. In those proceedings a compromise was arrived at and the portion which came to the share of Smt. Shabbir Fatima was released in her favour and Smt. Shabbir Fatima took possession from the petitioner in June, 1974. The result was that the petitioner was left with very little accommodation on the first floor. Half of the accommodation was released in her favour and he gave up to the landlady Dr. Smt. Shabbir Fatima. The result was that the petitioner was left with very little accommodation on the first floor. Half of the accommodation was released in her favour and he gave up to the landlady Dr. Smt. Shabbir Fatima. His case is now that after he had given up a portion of his accommodation by way of compromise, filing of the present release application is a wholly malafide act on the part of the landlady and that the application has been filed only to harass the petitioner. 4. After a new months of the filing of the release application landlady died on 6-8-1978. On 5-9-1979 an application was filed for substitution by respondents Nos. 2 to 5 in place of the landlady. This application was not supported by any affidavit and only substitution of the names was sought. In this application no need was set up on behalf of the heirs, respondents Nos. 2 to 5. The release application came up for hearing before the Prescribed Authority. The Prescribed Authority by an order dated 21st October, 1981 rejected the release application. The Prescribed Authority found that the accommodation in possession of the respondents was sufficient and consequently opposite parties did not have need of the accommodation. In effect, the finding was that the respondents failed to establish bonafide need and the application was consequently rejected. Against the order dated 21st October, 1981 respondents 2, 3 and 4 filed an appeal under section 22 of the Act. The appeal was allowed by the appellate authority on 16th July, 1983. The appellate authority set aside the finding in regard to the bonafide need. Aggrieved by this decision dated 16th July, 1983 the present petition has been filed by the tenant. 5. I have heard learned counsel for the parties. 6. Learned counsel for the petitioner raised three submissions before us. His first submission is that the finding in regard to bonafide need reoorded by the appellate authority is vitiated in law as the appellate authority has not considered the material facts on record, in the proper perspective. The petitioner's submission is that the findings is pervese and liable to be set aside. The second submission of the learned counsel is that during the pendency of this petition Parvez Naseer has constructed a double storied building at 11 Muir Road, Allahabad. The petitioner's submission is that the findings is pervese and liable to be set aside. The second submission of the learned counsel is that during the pendency of this petition Parvez Naseer has constructed a double storied building at 11 Muir Road, Allahabad. His need, if at all, ceased to exist and the finding in regard to his bonafide need now cannot stand and the application for release is liable to be dismissed. The third submission is that since the heirs of the landlady did not set up their own need in the substitution application, and the need of the landlady who died during the pendency of the release application having exhausted itself, the present release application is not maintainable now and is liable to be dismissed. In order to examine all the three submissions made on behalf of the petitioner it is necessary to first enumerate the actual accommodation available with the petitioner and that available with the heirs of the landlady. The accommodation available now with the petitioner is only one big room and one small, room which is being used both as dressing room as well as kitchen in which petitioner is living with his wife, mother and son. The respondents have got four big rooms, a big court yard, two big verandah, kitchen room and bath room and it is also not disputed that the respondents landlords have got several other houses in the city of Allahabad. In the original release application the need which was set up was primarily need of Massod Naseer and Shahid Naseer. In regard to Parvez Naseer it was only stated in the release application that due to insufficient accommodation Parvez Naseer and Mrs. Parvez Naseer left the house and took a house on rent in Tagor Town for their office and residential purposes, as both are Architect Engineers, but the release application was not sought on the ground that Parvez Naseer and Mrs. Parvez Naseer required accommodation. In fact, it is not disputed that Parvez Naseer has married with a Hindu lady and therefore, he and Smt. Ritu gave a joint affidavit before the Prescribed Authority denying the fact that they had shifted due to quarrel with mother and mother-in-law but it was further stated that they are now living in 53 Stanley Road, Allahabad where they had shifted. The appellate authority has mainly considered the need of Parvez Naseer. The appellate authority has mainly considered the need of Parvez Naseer. 7. Masud Naseer admittedly is now no longer carrying on his profession as an Advocate but he is appointed as Assistant Employment Officer. In view of this admitted fact so far as the need of MASUD Naseer for setting up an office also now did not exist which has been set up in the release application. The appellate authority, as already observed above considered mainly the need of Parvez Naseer which need was specifically not set up in the release application. The need of Masood Naseer for his office also had vanished as he ceased to carry on profession of advocate. The appellate authority has also not considered the extent of the accommodation available with the respondents 2, 3, and 4. The appellate authority has also not considered the fact that Parvez Naseer is living independently alongwith his wife in another house. These were all material facts which had to be considered by the appellate authority. In the circumstances, in my opinion the finding in regard to bona fide need recorded by the appellate authority is clearly vitiated in law and is liable to be set aside. 8. In regard to the second submission made by the learned counsel for the petitioner, petitioner filed a supplementary affidavit dated 24th July, 1990 in which it was clearly stated that Parvez Naseer had constructed a double storey building at 11 Muir Road, Allahabad in the compound of Miss C. Philips, He has further stated that the house is almost complete and the petitioner has made enquiries that Parvez Naseer is likely to shift in the house very shortly. He has, therefore, stated that the need of Sri Parvez Naseer now in any case no longer exists. He has also stated that from very beginning Sri Parvez Naseer was not living with his family in the disputed premises. Initially he was living in Tagore Town and thereafter he has sifted to 53 Stanley Road, Allahabad. A supplementary counter affidavit has been filed to this supplementary affidavit dated 28th July, 1990. It is significant to note that Parvez Naseer did not file any counter affidavit. On the other hand Shahid Naseer has filed a supplementary counter affidavit. Shahid Naseer in paragraph 7 of the supplementary counter affidavit has admitted that Parvez Naseer purchased a plot of land from Miss C. Philips. It is significant to note that Parvez Naseer did not file any counter affidavit. On the other hand Shahid Naseer has filed a supplementary counter affidavit. Shahid Naseer in paragraph 7 of the supplementary counter affidavit has admitted that Parvez Naseer purchased a plot of land from Miss C. Philips. He further stated that the State Government has issued notifications under sections 4 (i) and 6 of the Land Acquisition Act for acquiring the above mentioned plot. The said notifications have been challenged in the High Court, It is not disputed by him that Parvez Naseer had made constructions. It has only been stated that it is not fit for inhabitantion at present. From these facts it is clear that Parvez Naseer has purchased a land, he has also constructed a building on the said land but the defence set up is that is it not fit for inhabitation at present and a notification has been issued for acquisition of the plot in question, It is consequently, admitted on record that Parvez Naseer, no doubt, has purchased a land and has also started constructions. Mr. and Mrs, Parvez Naseer are architects and consequently I am of the opinion that they are not likely to live in old house jointly with other brothers particularly when Mrs. Parvez Naseer is a Hindu lady and they would prefer to live in newly constructed house. This is a very material subsequent event which has a very strong bearing on the question of the release. Before the property is actually released, it is necessary in the interest of justice that these subsequent development needs to be considered by the authorities concerned. The finding in regard to bonafide need for this reason would also become vitiated in law. In the supplementary counter affidavit many new facts have been started on the part of the respondents, landlords which had not come before the Prescribed Authority earlier. The appellate authority has also not considered one of the material fact pleaded by the appellant viz. that he gave up half of his accommodation by way of compromise and he should now be permitted to retain other half of the accommodation and the release application filed by the respondents is malafide application. The appellate authority has also not considered one of the material fact pleaded by the appellant viz. that he gave up half of his accommodation by way of compromise and he should now be permitted to retain other half of the accommodation and the release application filed by the respondents is malafide application. In regard to the third submission made by the learned counsel section 21 (7) of the Act is relevant which reads as follows :- "Where during the pendency of an application under clase (a) of subsection (1), the landlord dies, his legal representatives shall be entitled to prosecute such application further on the basis of their own need in substitution of the need of the deceased." 9. The above clause clearly lays down that in case landlord dies during the pendency of the release application his legal representatives are entitled to prosecute the same release application further on the basis of their own need in substitution of the need of the deceased. The Legislature consequently contemplated that after the landlord dies and in case legal representatives want to prosecute the same release application they have to set up their own need in place of the need of the landlord so that the defendants gets an opportunity of contesting the need of the heirs before the authorities concerned. 10. In the instant case as already stated above, a substitution application was filed on 5-9-1979. This application was not even supported by an affidavit. No fresh need was set up so far as the heirs was concerned A question therefore, which arises for determination is whether in such a circumstances release application is liable to be dismissed. In Mohan Singh Bedi v. Phool Chand, 1982 (2) ARC 421 , section 21 (7) of the Act came up for consideration before Hon'ble S. C. Mathur, J. He observed as follows :- "Now a landlord may bonafide require a building for the purposes mentioned therein but his heirs or transferees may not have any such requirement. It is for this reason that it has been specifically provided under sub-section (7) of Section 21 that on the death of the landlord his legal reoresentatives can prosecute further the application under section 21 (1) (a) on the basis of his own need in substitution of the need of the deceased. It is for this reason that it has been specifically provided under sub-section (7) of Section 21 that on the death of the landlord his legal reoresentatives can prosecute further the application under section 21 (1) (a) on the basis of his own need in substitution of the need of the deceased. The legal representative cannot, therefore, claim further prosecution of the application on the basis of the need set up by his predecessor. These provisions made it abundantly clear that an application for release whether made under section 16 or under section 21 has to be decided on the basis of the need of applicant himself. The right of release is, therefore, a personal right. Consequently, there cannot be a general right of substitution on the death of the applicant or on transfer of property by the applicant. Only the limited right of substitution provided under section 34 (4) and section 21 (7) is available." 11. In this case it has been held that in case heirs of the deceased want to prosecute the release applicatipn then it is mandatory for them to set up their own need. They cannot claim further prosecution of the application on the basis of the need set up by their predecessor as a right of release is a personal right. 12. Section 21 (7) of the Act also came up for consideration in the case of Munshi Lal v. VI Additional Civil Judge, 1982 ( 1) ARC 278 before Hon'ble N. D. Ojha, J. (as he then was). This case was a converse case. In this case it was urged that the heir of the landlady was not entitled to set up their own case in the substitution and consequently the need of the heir could not be considered by the authorities, Hon'ble N. D. Ojha, J. repelled this contention in view of section 21 (7) of the Act. In Virendra Nath v. Vlth Additional District Judge Moradabad, 1981 ARC 191 a question arose before me as to what is the effect of a release application where the heir substituted in the landlady place who had died did not set up their own need. In Virendra Nath v. Vlth Additional District Judge Moradabad, 1981 ARC 191 a question arose before me as to what is the effect of a release application where the heir substituted in the landlady place who had died did not set up their own need. Relying upon the case of Phool Rani v. Naubat Rai, AIR 1973 SC 2110 I took the view that with the death of landlord the cause of action perished and since no need was set up by the heirs the application under section 21 of the Act became incompetent. The principle laid down in this case would fully apply to the present case. Heirs having not set up any need as required by section 21 (7) of the Act, the application for release filed by the landlord perished and Gould not have been continued in law and consequently it is liable to be dismissed. 13. Since the release application after the death of the landlady became incompetent, the release application is liable to be dismissed. Learned counsel for the respondents, however, has urged that since 12 years have already expired since the filing of the release application additional facts may be considered by this Court and the release application be not remanded for fresh decision nor it may be dismissed as incompetent. It is no doubt true that the release application is pending for the last 12 years but the fact remains that the heirs of the landlady did not set up their own need at all in the substitution application dated 5th September, 1979. This Court as far back as in 1981 and 1982 had clearly held in the decisions referred to above that the heirs have to set up their needs under section 21 (7) of the Act but nothing was done in this regard. 14. In this Court in the supplementary counter affidavit of Shahid Naseer in paragraphs 9, 10, 11 and 12 additional facts have been stated which were not before the authorities. The facts relate to total number of the members of the family of the landlords, their increase in the need of the accommodation. Separate facts have been stated in regard to Masood Naseer and Shahid Naseer stating therein additional grounds as to why accommodation is required by them. The facts relate to total number of the members of the family of the landlords, their increase in the need of the accommodation. Separate facts have been stated in regard to Masood Naseer and Shahid Naseer stating therein additional grounds as to why accommodation is required by them. As already observed earlier Parvez Naseer, eldest son of the landlady, has not even come to this Court to deny the allegations made in the supplementary affidavit wherein it was clearly stated that he has purchased land and built a house thereon. Thef acts being seriously disputed it is not possible for this Court to go into the facts raised by the parties in this Court. I have given anxious thought to the facts and circumstances of the case and I am of the opinion that in view of the fresh facts stated both on behalf of the petitioner as well of the respondents denovo trial would be required so that the authorities concerned may come to a proper conclusion as to whether the case set up by the tenant is correct or that set up by the heirs of the landlady is correct. In the interest of justice, consequently, I think it proper that in order to avoid conclusion it would be appropriate that the heirs, if they really require accommodation they may file a proper fresh application containing all the grounds so that tenant also gets an opportunity of producing evidence on the allegations made therein. It will otherwise seriously prejudice the rights of the parties in case opportunity is not given to both the parties to place their case before the authorities. In the interests of justice the argument raised on behalf of the respondents is not acceptable. The release application is liable to be dismissed as incompetent. It will be open to the respondents to file a fresh release application in accordance with law if they really require the accommodation in dispute for their personal need. 15. In the result the petition is allowed. The order dated 16th July, 1983 is hereby quashed. The application for release is dismissed as incompetent. The parties are directed to bear their own costs. Petition allowed.