Explanation (iii) to Section 21 (1) (a) of the U. P. Act No. XIII of 1972 creates an exception to the general rule, lifting the requirement for the landlord to prove bona fide need if they are a serving or retired Indian Soldier.

( 1 ) HEARD petitioners counsel Sri R. B. Slnghal. Sri A. K. Srivastava is present for the caveator-landlord.

( 2 ) RESPONDENT Nos. 3 and 4 moved an application under Section 21 (1) (a) of the U. P. Act No. XIII of 1972 for the release of the house in question which is admittedly in the tenancy of the petitioner. This application was contested by the petitioner. The application for release has been allowed mainly on the ground that the respondent No. 4 is a Major in Indian Army and, therefore, the case is covered by Explanation (iii) of Section 21 (1) (a) of the Act. The said explanation is in the nature of an exception which has the effect of lifting the rigour of proving the bona fide need by the landlord, who is a serving or retired Indian Soldier as defined under the indian Soldiers (Litigation) Act, 1925. The need of the landlord on the existence of the conditions envisaged under such Explanation is to be deemed sufficient by a legal fiction. In the present case, it is not disputed that respondent No. 4 is an Indian Soldier as defined under the Act referred to in the aforesaid Explanation. The finding of fact recorded by both the Courts below further is that the respondent No. 4 is serving outside Muzaffarnagar where the tenanted accommodation is sititated. It has been also found as a fact that the said respondent requires the house in question for keeping his wife and children therein in order to educate his children as he is on a transferable post and gets posted from one station to another. To his case, therefore. Explanation aforesaid is fully attracted and need shall be presumed to be bona fide. With these findings, the release application has been allowed.

( 3 ) LIKE the Explanation (iii) to Section 21 (1), a similar provision exists in Section 13a1 of the bombay Rents Hotel and Lodging House Rents Control Act, 1947. The Supreme Court while dealing with a case falling under the provisions of Section 13a1 in the case of Shivram Anand shiroor v. Mrs. Radhabai Shantaram Kowshik, 1984 (1) SCC 588, held as under :

"notwithstanding the expressed legislative bias in farm of the tenant, the Legislature itself made a serious departure from the general rule so as to lean in favour of landlords who are or were members of the armed services, and who because of exigencies of their service were not able to occupy their own premises during the course of their service Section 13a1 was enacted, relaxing the rigour of Section 13 in favour of a landlord who is or was a member of the armed forces. "

( 4 ) IT is very much clear from the scheme of the Act that to a case where Explanation aforesaid is attracted, question of comparative hardship is of no relevance. IVth Proviso to Section 21 (1) (a)states that where a case is covered by the Explanation, the prescribed authority is not bound to take into account the likely hardship to the tenant from the grant of the application as against the likely hardship to the landlord from the refusal of the application. In short, it may be concluded that where the Explanation aforesaid is attracted, no comparison of likely hardship of the parties is required to be made.

( 5 ) IT is also noteworthy that for the applicability of the Explanation (iii), it is not necessary that the letting must have been done by the Indian Soldier himself. It is sufficient to prove that an indian Soldier is the present landlord of the building sought to be released. In the present case, the respondent No. 4 claimed himself to be the landlord on the basis of a will dated 3. 2. 74 executed by his late father Harpal Singh.

( 6 ) LEARNED counsel for the petitioner, however, vehemently argued that admittedly respondent no. 3 who is the widow of the deceased landlord was realising rent from the petitioner and the will alleged to have been executed by the deceased-landlord in favour of respondent No. 4 was a forged and fictitious document. It may be stated that the deceased-landlord had executed another will in t