Heard Sri B. P Nautiyal & Sri Hari Mohan Bhatia, Advocate for the peti tioner, Sri Sharad Sharma, Advocate for the respondent no. 3 and Standing Counsel for the respondents no. 1 and 2.

FACTUAL MATRIX OF THE CASe

2. By the present writ petition the pe titioner has prayed for a writ of certiorari quashing the order passed by the respond ent no. 1 District Judge Nainital in Rent Control Appeal No. 3 of 2004.

3. Briefly stated, an application was filed under Section 21 (1 ) (a) of the (U. R) Act No. 13 of 1972 for the release of the accommodation in the tenancy of the pe titioner situate at the place known as Tula Cottage, Tallital, Nainital consisting of 2 rooms latrine and bathroom of the north ern side of Tulla Cottage Tallital, Nainital. The prescribed authority has rejected the application for release. On appeal, the District Judge has allowed the appeal.

BONAFIDE NEED OF THE LAND LORD/respondent

4. In paragraph 9 of the application under Section 21 (1) (a) of the U. P. Act No. 13 of 1972, the respondents have spe cifically pleaded that they are having a joint family and are in possession of only two rooms. The applicants no. 2 and 3 are married. The Family of Rajendra Lal Shah/applicant no. 2 consists of himself, his wife and two children and the family of Vijay Lal Shah consists of himself, his wife and two children and mother is also residing alongwith them.

5. The landlords/respondents have stated in their application that the elder son of Rajendra Lal Shah is studying in : Class VIII. The application for release was filed in the year, 1997 and nine years have already passed.

6. Similarly, children of Vijay Lal Shah are also studying in Nursery School at the relevant time and now they have grown up. All the landlords are having a good status as Rajendra Lal Shah is having a kirana shop in Nainital and has to reside permanently at Nainital and Vijay Lal Sah is also working as Clerk in the Government Inter College, Patwa Danger and his family is permanently re siding at Nainital. In the suit, two rooms pre available with the landlord and as such they require a separate and com fortable living.

7. The petitioner is working in Balika Vidya Mandir, Nainital and is getting a handsome salary and house rent and can easily afford some other accommodation in the town, but no effort has been taken.

8. A written statement has been filed, where it has been stated that the landlord/ respondents have available with him, the house at Ganesh Kuti, Tallital, Nainital, where they are residing comfortably and they are also in possession of 3rd storey and loft over it of Tula Cottage, which is above the premises in question.

9. During the proceedings of the case, the affidavit was filed by Smt. Parwati Devi, the mother of the respondents, who has stated that the respondent no. 2 and 3 are living together as a joint family and due to lack of accommodation, they are compelled to live in two rooms although they are married and their sons and daughters have now grown up and they require separate rooms for their study and living also.

10. In paragraph 14, it has been stated that Ganesh Kuti is the two storied building and respondents are only the owner of the first floor and the ground floor is under the ownership of one Sri Rakesh Shah. Further it has been stated that so far as the Tula Cottage is con cerned, there is three storied and a loft which is an old and three storied structure of wood and by lapse of time, the same has become unhabitable and they are not in a position to make construction over the second storey of the Tula Cottage.

11. The petitioner has also filed her own affidavit where she has stated in para graph 8 that in Ganesh Kuti, which is two storeyed house, there are four rooms, which are sufficient for the respondents and no additional accommodation is re quired.

12. During the proceedings of the Rent Control and Eviction Officer, the in spection had taken place and it has been found that so far as Ganesh Kuti is con cerned o

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