Shashi Kant Gupta, J.—

This writ petition is directed against the order dated 11.3.2011 passed by the Additional District Judge, Special Judge (E.G. Act), Jhansi in RCA No. 3 of 2010 (Mamta Agnihotri Vs. Indrapal Shukla) setting aside the judgment and order dated 13.1.2010 passed by the Prescribed Authority/J.S.C.C., Jhansi in P. A. Case No. 13 of 2007, (Mamta Agnihotri Vs. Indrapal Shukla).

2. Brief facts of the case as set out in the writ petition are as follows;

3. An application under Section 21 (1) (a) of the UP Act No. 13 of 1972 (in short "Act") was filed for the release of the disputed premises from the possession of petitioner-tenant. It was stated therein that the respondent is a widow having two minor sons; petitioner is a tenant in her House No. 486 (new number 486/1) situated at Nanak Ganj, Sipri Bazar, Jhansi on a monthly rent of Rs. 300/- Since the respon#31;dent is not having any source of income, she wants to open a school for small children and give tuitions to the students, for which the tenanted accommodation is required. It was further pleaded in the release application that the petitioner-tenant has constructed his own house Nd. 190 at Nanak Ganj, Sipri Bazar, Jhansi. The tenant filed his written statement disputing and denying the allegations made in the release application and stated that the need of the petitioner-tenant was neither genuine nor bonafide.

3. After hearing to the learned counsel for the parties, the Prescribed Authority by judgment and order dated 13.1.2010 came to the conclusion that the alleged need of the respondent-landlady was not bonafide and the comparative hardship also tilts in favour of the petitioner-tenant and the application for release of the disputed pre#31;mises was not maintainable in view of third proviso to Section 21 (1) of the Act.

4. Being aggrieved and dissatisfied with the said judgment and order, the respon#31;dent-landlady filed an appeal. The said appeal was allowed by the judgment and order dated 11.3.2011. Hence, the present writ petition.

5. Learned counsel for the petitioner has submitted that the findings recorded by the appellate court on the question of bonafide need and comparative hardship is based on a complete misreading of the case and misconception of the legal position relevant to the matter, and has not considered the evidence available on record in right perspective. It was further submitted that in view of the third proviso to Section 21 (1) of the Act a residential building cannot be used for commercial purposes. It was further submitted that the petitioner has got enough accommodation in her pos#31;session to run and open a school for small children and give a tuitions to the students. He further submitted that although the sale deed of the two plots were ex#31;ecuted in favour of the petitioner but the house was constructed by the sons of the petitioner from their own funds, as such, Explanation 1 to Section 21 (1) of the Act is not applicable.

6. Per .contra, learned counsel for the Respondent-landlady supported the im#31;pugned order passed by the appellate court and stated that the order has been passed in accordance with law and the appellate court below was fully justified in holding the need of the landlady to be bonafide and genuine and the comparative hardship in her favour.

7. Heard the learned counsel for the parties and perused the record.

8. Landlord and tenant relationship is not disputed by the parties.The application under Section 21 (1) (a) of the Act was filed by the Respondent-landlady, Smt. Mamta Agnihotri stating therein that the respondent-landlady is a widow lady having two minor sons; she possesses master degree in economics; she is not having any source of income; she wants to open a school for small children and give tuitions to the students for which the tenanted accommodation was required. The appellate court recorded a finding of fact holding the need of the respondent-landlady to be bonafide and genuine and found the comp

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