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1. The petitioner Prabha Shanker Sinha, since deceased, represented by legal representatives and heirs, filed the writ petition for a declaration that Section 5 of Ordinance No. 8 of 1984 which substituted new Explanation III to Section 21 of U.P. Urban Building (Regulation of Letting, Rent and Eviction) Act, 1972 is ultra vires of the Constitution and also challenged the judgment and orders dated 5-3- 1979, and 15-9-1984 passed by the Prescribed Authority (Munsif), Ballia and the District Judge, Ballia, respectively.

2. Premisess No. D/113 Mohalla Midhi, Ballia is owned by the respondent No. 4 as owner and landlord and the petitioner was a tenant. An application was filed on 27-3-1978 by the respondent No. 4 that he is a Warrant Officer in Air Force posted at Delhi and his son is studying at Ballia. He required the premises in dispute for residence of his son and wife. The respondent had said that the accommodation in question fell in his share in the family partition. He needed the house in question for residence of his family members, wife and son who lived at Ballia. The respondent stated that he being a Warrant Officer, cannot keep his family along with him at all places. He has no other place for residence of his son and wife. The respondent pleaded that the tenant-petitioner are resident of Suremanpur where he has a house and his sons lived there, engaged in agricultural and cultivation. The petitioner was said to have retired from service and there was no necessity for him to stay in the City of Ballia. The landlord's application for release was contested by the petitioner. He had denied that there was any partition between the landlord and his brother. He also said that the accommodation in tenance of the petitioner had not come in the share of the respondent's landlord. As such, he was not the landlord, in the eye of law. The house in question was a property of opposite party No. 4's father Sri Brij Nath Sahai, who used to realise the rent from the petitioner. The petitioner also stated that the landlord's wife does not stay with her son at Ballia but she lives with the respondent No. 4 at Delhi. It was also said that the respondent's son lives as a member of the joint family with his father. The need for release of the house was incorrect. The landlord has no genuine need for the accommodation in question. The petitioner also said that his ancestral house at Suremanpur fell down in the floods of 1955 and he has no other place to live. The Prescribed Authority after examining the oral evidence and affidavit of Sri Brij Nath Sahai, father of the respondent No. 4 recorded a finding to the effect that he is the landlord of the said accommodation qua petitioner. The Prescribed Authority relied on Section 21(1) of Explanation III of the U.P. Act No. 13 of 1972 and held that the respondent No. 4's son was studying at Ballia, and respondent No. 4's wife also lived at Ballia. He found that the need of the landlord was bona fide and genuine. The respondent No. 4 in his affidavit at para 9 stated that the tenant has built a house at Adarsh Nagar Mauja Gangapur. The details of the boundry of the said house was also stated in the affidavit. The petitioner had not denied the said fact. In para 11 of his affidavit, Sri Kripa Shanker Sinha petitioner had only said that he was not living at Suremanpur. He has not denied that he has not built a house at Gangapur. Admittedly, the tenant-petitioner has retired from the service. There was no necessity of his living in the City at Ballia.

11. The appellate court also held that if the tenant is evicted he will not suffer greater hardship in comparison to the need of the landlord. The court also observed that the sons of the tenant are engaged in their occupations. He can be accommodated with his sons, who are employed in other districts. The appeal of the tenant-petitioner was rejected by the appellate court impugned in the present writ petition.

12. The petitioner placed paragraph 9(b) of the writ petition. He stated in the said paragraph that the respondent-landlord's family consists of his wife and his one son. It was also stated that the landlord's son is not studying at Ballia, he had shifted to Delhi in 1979 and is studing there in Atma Ram Sanatam Dharam Degree College Delhi. His wife and son are no longer residing at Ballia. Alleged need of the landlord's family has finished. The respondent has no need for the premises in dispute. In the counter affidavit at para No. 26, the landlord denied the allegations of the petitioner and stated that at Baliia, there was no facility of the higher education and hence the son of the landlord had gone temporarily for higher studies but the wife of the respondent was always and is still living in Ballia.

19. The learned counsel for the petitioner submitted that the need of the landlord since now vanished, as the son of the landlord-respondent left Ballia and by now after lapse of ten years, must have come in some service of vocation, he is not likely to come and stay at Ballia. This submission is wholly misconceived. The landlord in the counter affidavit reiterated that the landlord's wife is still living at Ballia and understands to live at Ballia. Thus, the submission of the learned counsel for the petitioner that the need of the landlord vanished, cannot be accepted. It was the petitioner, who filed the writ petition in 1984 September and the matter remained pending for ten years. Now in suit, the landlord only on the ground that the petitioner remained in the occupation in possession and the landlord was deprived to use and occupy the own house is sufficient to dislodge him would be doing great injustice to the landlord. The landlord admittedly has retired from his service and his wife live at Ballia. The landlord wants to settle at Ballia. He cannot be asked and compelled to go elsewhere so that the tenant may continue occupying the accommodation as tenant. The fact that the tenant-petitioner has seven sons, some of his sons had built houses at Lucknow and some are employed in other districts, living in the rental accommodation. The tenant has number of rooms at Suremanpur where also he can live. Thus, the submission of the learned counsel for the petitioner that the need of the landlord vanished, is wholly misconceived and cannot be accepted.