A landlord's application for release of accommodation under Section 21 (1) (a) of the U. P. Act No. XIII of 1972 is maintainable even though there may have occurred a deemed vacancy under Section 12 of the Act.

( 1 ) SINCE counter and rejoinder-affidavits have been exchanged, this writ petition is disposed of finally.

( 2 ) THIS is tenants writ petition against the order dated 23. 4. 1982 passed by respondent No. 2 and the order dated 6. 9. 1982 passed by respondent No. 1.

( 3 ) THE dispute relates to part of accommodation of House No. 51, Khushal Parvat, Allahabad, which is in the tenancy of the petitioner. The landlord, the respondent No. 3, moved an application under Section 21 (1) (a) of the U. P. Act No. XIII of 1972 for the release of the said accommodation on the ground that the house which is in occupation of the landlord is not sufficient to cater the need of his family members inasmuch as three rooms of the said house have fallen down and the landlord resides in a portion of the said house in its upper portion which comprises of only two small rooms, one small kitchen and a small store room while the tenanted accommodation consist of one room measuring 16 x 9 facing the lane in the ground floor. It was further alleged that two sons of the landlord are of marriageable age and for additional accommodation was required them. The tenant was in no need of the disputed accommodation inasmuch as he resides at 60, Akhara Man Khan, Allahabad, where he has a shop also. In the said accommodation, the tenant has at his disposal one room about 22 x 11 as also a Dalan of the same size.

( 4 ) THE petitioner-tenant contested the said application and there was no dispute with regard to number of family members of the landlord. However, it was alleged that the entire first floor and second floor along with two rooms, a tiled room having Khaprall and courtyard on the ground floor is in use of the landlord. In short, the tenant case was that the landlord was having sufficient accommodation With him to cater the need of his family members. In respect of the accommodation at 60, Akhara Man Khan, the case of the tenant was that the said accommodation was being used by him for business purpose only and he was not residing therein.

( 5 ) ON appraisal of evidence, both the Courts below have recorded concurrent findings of fact that the landlords need is bona fide and genuine. On the question of comparative hardship also, both the Courts have concurred that the landlord was likely to suffer a greater hardship than that of the tenant. It is well-settled law that in exercise of powers under Article 226 of the Constitution of India, this Court does not ordinarily interfere with the concurrent findings of fact unless it could be shown that the said findings are perverse or suffer from any manifest error of law. In the present case, it could not be shown that the concurrent findings of fact recorded by the respondent Nos. 1 and 2 suffer from any such infirmity or illegality.

( 6 ) THE main argument of the learned counsel for the petitioner is that once the landlord himself came with the case that the petitioner-tenant was not residing in the tenanted accommodation and was actually residing at 60 Akhara Man Khan accommodation, there occurred a deemed vacancy as per his own admission and, therefore, the only course open for him was to move an application under Section 16 of the Act and application under Section 21 (1) (a) of the Act was not legally maintainable. This argument of the learned counsel for the petitioner must be rejected outrightly as not tenable. It may be relevant to mention here that in his application under Section 21 (1) (a) of the Act, the landlord made an averment that the tenant-petitioner was not in need of the disputed accommodation as he has started residing at 60, Akhara Man Khan, Allahabad. From this averment, it cannot be inferred either on fact or in law that the petitioner no longer remained the tenant of the landlord. So long as tenancy subsists, it is always open for the landlord to move an application under Section 21 (1) (a) of the Act. It was also open for the landlord to have approached the Rent Control and