JUDGMENT Hon’ble Mrs. Poonam Srivastav, J.—Heard Sri P.K. Sinha, counsel for tenant-petitioners and Ms. Sunita Agrawal, counsel for landlord-respondent. 2. Counter and rejoinder affidavits have been exchanged as such the instant writ petition is being decided finally at the stage of admission itself. 3. A release application was preferred under Section 21 (1)(a)(b) of U.P. Act No. XIII of 1972 (hereinafter referred to as the Act) by power of attorney of landlord, who happens to be father of landlord. House No. 92 (Old), New No. 142/4, Lukerganj, Allahabad, consists of two portions. One is in occupation of tenants, which consists of a hall, one room, varandah, kitchen, store room, bathroom and latrine and remaining portion is used by father of landlord. Tenantpetitioners came in possession subsequent to an allotment order in the name of their father in the year 1952. 4. Case set up by landlord is that there was a mutual partition between members of joint family. The disputed portion which is in occupation of tenants, fell in share of the landlord and he required it for his own use. Claim of petitioners is that area in occupation of landlord is huge almost 600 square yards, therefore, his need for the tenanted accommodation is not genuine and the release application preferred under Section 21 of Act, is liable to be rejected. First objection raised by Sri P.K. Sinha, is that there was no specification in the release application whether it is for personal need or release is sought because of the reason that the accommodation is in dilapidated condition. There is no detail regarding fact whether the release application was moved under sub-section (a) or (b) of Section 21 the Act. 5. Ground for release set up by landlord is that he along with his family members are residing at San-Diego, California, U.S.A. since quite some time. Husband, Dr. Ajai Khanna and wife, Smt. Purnima Khanna are employed in medical services as they are doctors and the situation at the relevant time when the release application was preferred, there was a lot of turmoil in U.S.A. The World Trade Centre was bombarded, thereafter a number of terrorist activities started in U.S.A. Besides, employment condition for Indian residents in U.S.A. have considerably deteriorated, therefore, landlord, Dr. Ajai Khanna with his wife Smt. Purnima Khanna wants to come back to his native place and settle permanently with his family. 6. Ajai Khanna with his wife Smt. Purnima Khanna wants to come back to his native place and settle permanently with his family. 6. Assertions in release application was emphatically denied. Tenant-petitioners stated in their written statement that it was only a ploy to get the tenanted accommodation released. It was further contended that landlord has permanently settled with their children abroad and they are green card holders. They have their own house in United States, therefore, disputed accommodation is not required by them. The need set up is not genuine and bona fide. 7. After exchange of pleadings and evidence in form of affidavits, the Prescribed Authority rejected release application vide judgment and order dated 22.5.2008. Landlord preferred an appeal before District Judge, Allahabad, which was numbered as Rent Control Appeal No. 69 of 2008 Dr. Ajai Khanna Vs. S.P. Chaterjee and another, and the same was transferred in the Court of XIIIth Additional District Judge, Allahabad. 8. An application along with affidavit numbered as paper No. 7-Ga was moved in appeal. Request was that the same may be read as evidence. Though this application was not acceptable initally but the appellate Court subsequently on 22.1.2009, accepted the affidavit in evidence and permitted landlord to contest release application either under Section 21 (1)(a) or (b) of the Act. 9. At the very outset, Sri P.K. Sinha, was critical regarding the acceptance of additional evidence/affidavit by the appellate Court for the reason that previously affidavit was refused on 18.11.2008 but same was accepted subsequently on 22.1.2009. However, it is admitted by Sri Sinha, that order passed in Rent Control Appeal on 22.1.2009 taking affidavit on record was never challenged by tenants in a superior Court, thus it is evident that order dated 22.1.2009 is a final order without any challenge and it cannot be reopened at this stage. 10. Sri Sinha, while advancing arguments on behalf of tenantpetitioners, apprised this Court that landlord had made an offer of Rs. 50,000/- to tenants for vacating accommodation during pendency of the proceedings. This was total amount, which tenants had paid towards rent to landlord till that date. 11. Sri Sinha, has candidly accepted that rate of rent was very low and tenants are ready to pay rent at an enhanced rate if they are allowed to continue in possession. Application for offering amount of Rs. This was total amount, which tenants had paid towards rent to landlord till that date. 11. Sri Sinha, has candidly accepted that rate of rent was very low and tenants are ready to pay rent at an enhanced rate if they are allowed to continue in possession. Application for offering amount of Rs. 50,000/- was moved in the Court on 29.1.2009 after serving a copy to counsel appearing for tenants. Appellate Court allowed appeal of landlord quashing judgment and order of Prescribed Authority with a direction to tenants to vacate premises within a period of one year and handover vacant possession, which is impugned in the instant writ petition. 12. Contention of Sri Sinha is that landlord filed release application only on pretext of terrorism whereas ‘terrorism’ and ‘law and order ‘ situation in India is worse than America hence the release sought on this ground is totally misconceived and only a device to get the property released. 13. It is further submitted that Prescribed Authority after considering the various aspects of the matter recorded specific finding that need of landlord is neither bonafide nor genuine and hard pressing and only desirous in nature. Prescribed Authority also recorded a very specific and categorical finding that landlord has concealed the extent of accommodation under his occupation and even did not even whisper or disclosed the accommodation in his occupation which materially and substantially affects the merit of the release application. In the absence of the relevant fact comparison of need cannot be adequately adjudicated upon. It is further contended that the extent of accommodation could have only been ascertained by getting a commission issued and since the landlord is claiming that he is not having sufficient accommodation for his personal use hence the burden is upon landlord to prove the fact of availability and extent of accommodation in his occupation and failure to do so should necessarily lead to an adverse inference against landlord. Concealment of extent of accommodation is a relevant factor for consideration of release application as held by this Court in the case of Narendra Pal Singh v. Ilam Chandra Sharma Advocate, 2008 (2) JCLR 663 (All). Concealment of extent of accommodation is a relevant factor for consideration of release application as held by this Court in the case of Narendra Pal Singh v. Ilam Chandra Sharma Advocate, 2008 (2) JCLR 663 (All). Prescribed Authority also recorded elaborate specific finding about law and order situation and terrorism in America as well as in India and a number of other countries and after noting down the break up of crime graph chart of America vis-a-vis India and particularly the part of America i.e. San diego as well as various other countries rejected the release application by an elaborate judgment. 14. It is further argued that Prescribed Authority considered second aspect under Section 21 (1)(b) of the Act and recorded specific finding that no evidence has been produced showing dilapidated condition of the disputed accommodation and also recorded a finding that non-compliance of mandatory provisions of Rule 17 of the Act is also one of the reason for not granting any relief under provisions of Section 21 (1) (b) of the Act. 15. Sri P.K. Sinha while criticizing the judgment of Additional District Judge submitted that he has wrongly allowed appeal by an order dated 2.5.2009 without setting aside the aforementioned specific finding recorded by Prescribed Authority. The appellate Court has erred while taking into consideration the commissioner report in suit No. 605 of 2005, Dr. Ajai Khanna v. S.P. Chatterjee and another) wherein commissioner has mentioned and given a detail description about the condition of the building of the petitioners’ portion whereas specific case of the petitioners was that commission is necessary for ascertainment of extent of accommodation under occupation of the landlord hence appellate Court totally deviated from the point in issue and committed an error of law in deciding the issue of commission. 16. During appeal, an affidavit was filed by landlord with photographs showing the condition of building in dispute which could have been clarified in a better manner by issuing a commission but appellate Court wrongly relied upon photographs which totally renders the order impugned vitiated. 17. Ms. Sunita Agrawal, counsel for respondent has refuted each and every arguments of Sri Sinha. She submits that it is not unusual that a person living abroad since a long time, wants to come back to settle in his own country especially when children are at an impressionable age. 17. Ms. Sunita Agrawal, counsel for respondent has refuted each and every arguments of Sri Sinha. She submits that it is not unusual that a person living abroad since a long time, wants to come back to settle in his own country especially when children are at an impressionable age. She has critically pointed out error in the judgment of Prescribed Authority that it has taken care and has made a conscience effort to somehow negate requirement of landlord by discussing terrorism scenario of a dozen countries before recording findings that there is more terrorism in India than America. She has also stressed that Prescribed Authority has given all cautions to the wind by strenuously making an effort to record findings in favour of tenants without considering principles of law laid down in various decisions. 18. While placing reliance on a decision of the Apex Court in the case of Mst. Bega Begum v. Abdul Ahmad Khan, AIR 1979 SC 272 , she submits that requirement should not be artificially extended nor its language so unduly stretched or strained as to make it impossible or extremely difficult for landlord to get an order of release. Object of the Act is not to deprive landlord from his own property for all times to come. It has also been held that rent control law must be construed reasonably. Interpretation should be such as to achieve the object. Section 21 of the Act, which is an enactment enabling landlord to evict tenant in his hour of need especially where statute grants such a right. Facts and circumstances should not be weighed in a lopsided manner. 19. Ms. Sunita Agrawal has also placed reliance on a decision of this Court, Nanak Chand (since deceased) and others v. Jai Bhagwan, 2009 (1) ARC 829. 20. It is submitted that while weighing the condition of a building, which was directed to be reconstructed after demolition and arriving at a conclusion that it has outlived its utility, the test to be applied is an objective one. The Court took into consideration in the present case, a certified copy of report of commissioner in an injunction matter between the same parties. A commission was appointed in another litigation between the landlord and tenants to report condition of the building. Therefore, objection of Sri Sinha regarding nonissuance of commission is of no consequence. The Court took into consideration in the present case, a certified copy of report of commissioner in an injunction matter between the same parties. A commission was appointed in another litigation between the landlord and tenants to report condition of the building. Therefore, objection of Sri Sinha regarding nonissuance of commission is of no consequence. The certified copy was brought on record. The subject matter of dispute was one and its present condition. Repetition of a report is not called for. 21. It is also argued that crucial date for considering ground raised in the release application is date of filing of release application and need set up therein is required to be examined on the relevant date. 22. It is further submitted that landlord is the best judge of his requirement and Court cannot dictate terms and how and where and the manner he should live. If landlord lives in his ancestral house with his old and ailing parents, merely saying of tenants that he neglected them for such a long period and today this requirement is set up only to get the building vacated is not worth consideration. Smt. Sunita Agarwal while replying the arguments of Sri Sinha submitted that the landlord cannot be required or directed to wash his hands from his own property and write it off merely because the tenants are living since a long time and the landlord can and should choose an option to remain in an alien country all his life. 23. Petitioners’ counsel has also placed reliance on a number of decisions of this Court; Heera Lal Agarwal and another v. IInd Additional District Judge, Farrukhabad and others, 2000 (2) ARC 703, Ram Murti Saran v. District Judge Moradabad and others, 1999 (2) ARC 758. 24. Reliance has also been placed by respondent’s counsel on a number of decisions of the Apex Court and this Court as well as Uttaranchal High Court. The Apex Court in the case of Ragavendra Kumar v. Firm Prem Machinery & Co., (2000) 1 SCC 679 , held that it is a settled position of law that the landlord is the best judge of his requirement for residential or business purpose and he has got complete freedom in the matter. 25. The Apex Court in the case of Ragavendra Kumar v. Firm Prem Machinery & Co., (2000) 1 SCC 679 , held that it is a settled position of law that the landlord is the best judge of his requirement for residential or business purpose and he has got complete freedom in the matter. 25. The Apex Court in the case of Rishi Kumar Govil v. Maqsoodan and others (2007) 4 SCC 465 , held that as observed earlier it is clear that the length of the period of tenancy as provided under clause (a) of sub-rule (2) of Rule 16 of the Rules, 1972 is only one of the factors to be taken into account in context with other facts and circumstances of the case. It cannot be a sole criterion or deciding factor to order or not the eviction of the tenant. Considering the facts in the light of Rule 16 pressed into service on behalf of the respondent, we find that according to the guidelines provided therein balance tilts in favour of the unemployed son of the landlady whose need is certainly bona fide and has also been so accepted by the respondent before us. More than 20 years have elapsed and the son has become more than 40 years of age and she has not been able to establish him as she has still to get the possession of the shop and the litigation of the dispute is still subsisting. 26. The Apex Court in the case of M/s Sait Nagjee Pursushotham & Co. Ltd. v. Vimalabai Prabhulal and others, AIR 2006 SC 770 held that it is not the tenant who can dictate terms to landlord and advise him what he should do and what he should not. It is always the prerogative of landlord to choose the nature of business and place of business. 27. The Apex Court in the case of Gaya Prasad v. Pradeep Srivastava, 2001 (1) ARC (SC) 352, held that the present scenario of the tormenting plight of an average litigant who approaches the Court with all expectations of getting relief for his urgent need. But the snail paced litigation creeping through all tiers of the judicial hierarchical forums would have frustrated all his expectations. 28. But the snail paced litigation creeping through all tiers of the judicial hierarchical forums would have frustrated all his expectations. 28. This Court in the case of Nanak Chand (since deceased) and others v. Jai Bhagwan, 2009 (1) ARC 829, held that Court cannot dictate how and where he should live also how he should manage his affairs-No interference is required-It is evident that petitioners/tenants/could have taken an alternative accommodation if they so desired. 29. Respondent’s counsel has also placed reliance on the following decisions, Badrinarayan Chunilal Bhutada v. Govindram Ramgopal Mundada, 2005 (2) ARC (SC) 899, Azmuddin v. Malika Bano (Smt.), 2008 (3) ARC 570. 30. The Uttaranchal High Court in the case of Ramesh Chandra (Sri) and another v. Ist Additional District Judge, Dehradun and others, 2005 (1) ARC 812, was of the view that the law laid down in this case is applicable to the facts to the present case under Article 226 of the Constitution as well. This Court in the case of Ram Rakesh Pal and others v. Ist Additional District Judge and others, 1976 UPRCC 376, has held that “the question of bona fide requirement of the premises as well as that of comparative need are questions of fact and, therefore, High Court has no power to correct the question of fact even if erroneously decided.” A reference may also be made to the decision of this Court in the case of Jagan Prasad v. District Judge and others, 1976 UPRCC 342; Laxmi Narain v. IInd Additional District Judge and others, reported in 1977 UPRCC 230; and Smt. Nirmala Tandon v. Xth Additional District Judge, Kanpur Nagar, 1996 (2) ARC 409, the matter has recently been considered by the Apex Court in the case of Kamleshwar Prasad v. Pradumanjuu Agarwal, 1997 (1) ARC 627, wherein it was held that “under the Act, the order of the Appellate Authority is final and the said order is a decree of the Civil Court and a decree of a competent Court having become final cannot be interfered with by the High Court in exercise of its power superintendence under Articles 226 and 227 of the Constitution of India by taking into account any subsequent event which might have happened. That apart, it was further observed that the fact that the landlord needed the premises in question for starting a business which fact has been found by the Appellate Authority, in the eye of law, must be that on the day of application for eviction, which is the crucial day, the tenant incurred the liability of being evicted from the premises. 31. I have heard counsels for respective parties, gone through judgment impugned, various decisions cited by counsels for respective parties and scrutinized in detail. Criticism of Ms. Agrawal, so far it relates to the judgment and order of Prescribed Authority has substance. No doubt, It is a lengthy judgment but number of pages is not to be counted. It appears that Prescribed Authority has gone far away in trying to dictate term to the landlord and also censoriously holding that since landlord is settled in America, he has no need to come back. This is something which he has carved out himself and is sufficiently disparaging. There is no reason for such a doubt especially when landlord has unequivocally stated that political situation as well as prevalent condition of Indians settled in U.S.A. They are facing a lot of problem in employment, if landlord wants to come back in his native country, it is not very surprising. It is thus evident that the judgment of the appellate Court is well considered, reasoned and after a valid evaluation of facts, circumstances and evidence. Besides, the findings are factual, objections on behalf of the tenant/petitioners are not worth consideration. No good ground for interference under Article 226 of the Constitution of India, is made out. The writ petition lacks merit and is, accordingly, dismissed. 32. In the end, petitioners counsel made a request for some time to vacate the accommodation in question. 33. Petitioners are allowed six months time to vacate accommodation in question subject to filing an undertaking within three weeks from today before the trial Court stating unequivocally that vacant possession of accommodation in question shall be handed over to landlord/respondent on or before 9.4.2010. The date of handing over possession shall be given in the undertaking in form of an affidavit as 9.4.2010. The tenants shall deposit entire decreetal amount along with interest and they shall also continue to pay damages at the prevalent rate i.e. on which they are depositing since the date of interim order. 34. The date of handing over possession shall be given in the undertaking in form of an affidavit as 9.4.2010. The tenants shall deposit entire decreetal amount along with interest and they shall also continue to pay damages at the prevalent rate i.e. on which they are depositing since the date of interim order. 34. If tenant/petitioners fail to file an undertaking within a period of three weeks from today before the trial Court and pay the damages at the prevalent rate from month to month by 10th of each month, this liberty shall automatically come to an end. Landlord will be at liberty to get accommodation vacated forthwith. ————