Lalta Prasad vs District Judge and Others

R.H. Zaidl, J.—Instant writ petition arises out of proceedings u/s 21(1)(a) of U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (for short the Act) and is directed against the orders passed by the Prescribed Authority and the appellate authority dated 22.2.1995 and 31.5.95 respectively. The Prescribed Authority allowed the release application filed by the landlords-Respondent Nos. 3 to 5 and the appellate authority dismissed the appeal filed by the tenant-Petitioner against the order passed by the Prescribed Authority.

Since the contesting Respondent filed caveat through Sri. A.K. Gupta, Advocate who has also filed counter-affldavit, in reply of which rejoinder affidavit has also been filed. With the consent of the parties, I have heard this matter finally at this stage.

Basic facts of the case giving rise to the present petition Under Article 226 of the Constitution of India are that the Respondent Nos. 3 to 5 (landlords) filed the application for the release of the shop in dispute in their favour, which is situated in town Kasganj, district Etah. It was pleaded that the shop in dispute was needed for the use and occupation by Sri. Rajendra Kumar, the Respondent No. 5 who was Jobless and wanted to establish his cloth business in it and except the shop in dispute, he had no other shop for establishing the said business. On the other hand, the opposite party-Petitioner had several alternative accommodations available to him, in which he could shift and establish his Khandsari business. It was alleged that the Petitioner was a well-to-do person and owned several building at Kasganj which were specified in the application. Petitioner also owned a brick-kiln and two trucks. Actually the shop in dispute used to remain closed; therefore, if the same was released in favour of the landlords, the Petitioner would not suffer any hardship.

Release application filed by the Respondent Nos. 3 to 5 was opposed by the Petitioner who denied the pleas taken by the said Respondent and their claim for the release of the shop in dispute. In their favour. It was pleaded that Rajendra Kumar was not jobless and he could establish his proposed cloth business In the other alternative accommodations which were stated to be available to him, plea of hardship was also taken. The parties in support of their claims produced evidence, documentary and oral.

The Prescribed Authority, after hearing the parties and perusing the evidence, recorded clear and categorical findings on the questions of need and hardship in favour of Respondent Nos. 3 to 5. It was held that Sri. Rajendra Kumar, the Respondent No. 5 was Jobless, his need for the shop in dispute was bona fide and genuine, that no other shop was available to him while the Petitioner had several alternative shops and accommodations at his disposal where he could easily shift his business. The finding on the question of comparative hardship was also recorded In favour of landlords. Having recorded the aforesaid findings, the Prescribed Authority was pleased to allow the release application by its order dated 22.2.1995.

Aggrieved by the order passed by the Prescribed Authority, the Petitioner-tenant tiled an appeal before the appellate authority u/s 22 of the Act. The appellate authority also affirmed the findings recorded by the Prescribed Authority and dismissed the appeal by its judgment and order dated 31.5.1996. The Petitioner has filed the present petition, as stated above challenging the validity of the orders passed by the Prescribed Authority and the appellate authority.

The learned Counsel for the Petitioner did not seriously challenge the findings recorded by the authorities below on the question of need and hardship. He has, however, vehemently urged that the provisions of Clause (d) of Sub-rule (1) of Rule 16 framed under the Act, were also applicable in the cases of commercial buildings, the authorities below, therefore, ought to have considered the question as to whether the landlord''s need would have been served by releasing a part of the shop in dispute, while leaving with the tenant-Petitioner other part of the same. He submitted that the authorities below have acted wholly illegally in completely ignoring of this aspect of the matter.

On the other hand, the learned Counsel for the contesting Respondent strenuously urged that the Petitioner did not plead before the authorities below that the need of the landlords could be served by releasing only a portion of the shop in dispute in their favour or that he will be satisfied if other portion is left to him and Judging from the point of view of its situation and size, it was not feasible or possible to partition the shop in dispute. It was also urged that the provisions of Clause (d) referred to above were applicable only in the cases of residential buildings and the Petitioner had no right to raise the said point at this stage, Under Article 226 of the Constitution of India, for the first time as the same involved the factual controversy which cannot be resolved by High Court in exercise of its power Under Article 226 of the Constitution of India.

I have seriously considered the rival submissions made by the learned Counsel for the parties and have also carefully perused the record.

The findings recorded by the authorities below on the question of need and hardship are findings of fact which are based on relevant evidence on the record. They have also not been challenged by the Petitioner, therefore, they are to be accepted as correct.

So far as the question of releasing of a portion of the shop in dispute in favour of the landlords is concerned, it is necessary to refer to the Clause (d) of Sub-rule (1) of Rule 16 which reads as under:

Application for release on the ground of personal requirement (Sections 21(1)(a) and 34(8).-(1) In considering the requirements of personal occupation for the purposes of residence by the landlord or any member of his family, the Prescribed Authority, shall also have regard to such factors as the following:

(a)...

(b) Where the tenant''s need would be adequately met by leaving with him. a part of the building under tenancy and the landlord''s need would be served by releasing the other part, the Prescribed Authority shall release only the later part of the building.

The learned Counsel for the Petitioner in support of his submission that the provisions of Clause (d) of Rule 16 (1) were applicable to the commercial buildings also referred to and relied on several decisions. It is not necessary to refer to all those decisions, it will suffice to refer to the decision in Rama Shanker Rastogi v. Smt. Reoti Devi and Ors. 1994 (1) ARC 225, inasmuch as in the said decision other cases-referred to by the learned Counsel for the Petitioner have been taken into consideration and dealt with by the learned single Judge.

In Bhagwan Das v. Smt. Ziley Kaur and Ors. 1991 11) ARC 377 their Lordships of Hon''ble Supreme Court while dealing with Sub-rule (1) of Rule 16 were pleased to hold in Paragraph No. 6 as under:

While dealing with the question of comparative hardship, learned Counsel for the Appellants placed reliance on certain decisions dealing with Rule 16 (1) of the Rules, we do not, however, find it necessary to consider them inasmuch as the said Sub-rule does not deal with an accommodation let out for purposes of business but deals with an accommodation let out for residential purposes, which in the instant case is not relevant.

Relying upon the decision in the case of Bhagwan Das (supra), thelearned single Judge in Mangana Nand Bhatt v. Additional District Judge,Dehradun and Ors. 1992 III) ARC 27was pleased to hold as under:

In my opinion, the learned Counsel for the Respondent is correct in his submission that the provisions of Rule 16 (1) (d) of the rules framed under the Act could not be applicable when the release is sought for business purposes. Refer Bhagwan Das v. Smt. Jiley Kaur and Ors. 1991 11) ARC 377 (SC).

In the case of Rama Shanker Rastogi (supra), the dispute was with respect to a shop. The question arose as to whether Clause (d) of Sub-rule (1) of Rule 16 of the rules framed under the Act could be pressed into service of the authorities while considering the application u/s 21 (1) (a) of the Act. The learned single Judge after taking into consideration several decisions of this Court and also the decision in the case of Rama Shanker Rastogi (supra) was pleased to observe and hold in Paragraph 17 of the judgment as under:

In Smt. Jai Dehi and Ors. v.IVth Additional District Judge. Etawah and Ors. 1993 11) ARC 510, an application was filed by the landlord for release of the shop in dispute. The application was allowed by the Prescribed Authority and the order was affirmed in appeal. In the writ petition filed by the tenant, an argument was raised that the Prescribed Authority was bound to consider whether a portion of the shop in dispute should have been released. This Court expressed the view that even though Rule 16(1) (d) of the rules was not applicable, (he Prescribed Authority could have considered whether a portion of the shop in dispute could be released provided (he tenant had raised such a plea before the Prescribed Authority or the appellate authority and the tenant had adduced the evidence in support of his version. These cases laid down the principle that even though Rule 16 (1) Id) is not applicable to a non-residential building, but while considering the need of the landlord, the Prescribed Authority may release only part of building If such a plea Is raised by the tenant or after considering the material evidence on record, he comes to the conclusion that a part of the non-residential building would satisfy the need of the landlord. There is no provision that unless Rule 16 (1) (d) of the rules is made applicable, he cannot release a part of the building. Rule 16 has been framed as a guideline to be taken into account by the Prescribed Authority while considering the need of the landlord and comparative hardship of the tenant, but the rule does not limit the power of the Prescribed Authority which is contained in the substantive provisions of the Act to release the whole or a part of the building under the tenancy of a tenant.

Although, there seems to be a conflict of opinion between the Hon''ble single Judges on the applicability of Sub-rule (1) of Rule 16 to the commercial buildings but, after the decision of Supreme Court in the case of Bhagwan Das (supra), there was no scope of conflict, therefore, I do not consider it necessary to make a recommendation to the Hon''ble Chief Justice to refer the matter to a larger Bench in the present case, and rely upon the said decision and further even in the case of Rama Shanker Rastogi. It was held that the Prescribed Authority could release only a part of the building, if such a plea is raised by the tenant and the tenant had adduced evidence In support of this case before authorities below.

In the present case, the learned Counsel for the Petitioner searched for the said plea being taken before the authorities below but in vain. He ultimately had to concede that in the written statement, no such plea was taken. He simply asserted that at appellate stage, a written argument was filed in which the argument for consideration of the plea of partial release was raised. He has also filed in support of his submission a supplementary affidavit annexing therewith the copy of the written argument. On the other hand, learned Counsel for the Respondent emphatically refuted the said fact and submitted that no written argument was ever filed before the Appellate Authority and further submitted that even assuming without admitting that any written argument was placed on the record, the same was never pressed. Consequently, the appellate authority did not take note of it. Under the said facts and circumstances, there is no difficulty in holding that the plea regarding applicability of Clause (d) of Sub-rule (1) of Rule 16 was not taken in the written statement/objection filed in reply to the release application or In the memo of appeal filed before appellate authority nor the same was pressed before appellate authority. Therefore, there arose no occasion for the authorities to take note the said plea in their orders.

I am, therefore, at this stage not inclined to permit the learned Counsel for the Petitioner to take up the controversy of partial release of the shop in dispute.

Further the authorities below have recorded concurrent findings of fact to the effect that several alternative suitable accommodations and buildings are available to the Petitioner wherein he can carry on his business of Khandsari and Sugar. The plea of partial release in such circumstances is not available to the Petitioner. In this view, I am fortified by the decisions in Anil Kumar Nayar v. Suresh Chand Jain and Ors. 1988 ARC 431. wherein it was ruled that where the need of landlord''s son to start business was found to be bona fide and pressing, comparative hardship was also found in his favour and further the tenant was found to have several other shops of his own at his disposal, the plea of partial relief by the tenant was not Justified.

In view of the aforesaid discussion, this petition has got no merit and the same is dismissed in limine.