Raj Narain vs 7th Addl. District Judge and Others

Anjani Kumar, J.—The Petitioner, who is a tenant in the shop, hereinafter referred to as ''building in question'', aggrieved by the order passed by the prescribed authority on an application moved by the contesting Respondent-landlord u/s 21(1) (a) and (b) of the U.P. Act No. 13 of 1972, hereinafter referred to as the ''Act'', for release of the building in question under the tenancy of the tenant-Petitioner. The prescribed authority after inviting objections and after going through the evidence on record has allowed the application moved by the landlord vide its order dated 21.2.1994, a copy of which is annexed as Annexure-5 to the writ petition. The prescribed authority admittedly did not enter into the question of comparative hardship as is required under 4th proviso to Section 21(1) of the Act, which is reproduced below : "Provided also that the prescribed authority shall, except in cases provided for in the Explanation, 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 and for that purpose shall have regard to such factors as may be prescribed.

Aggrieved by the order passed by the prescribed authority, the Petitioner moved an appeal as provided u/s 22 of the Act before the appellate authority. The appellate authority vide its order dated 8.4.1996, affirmed the order passed by the prescribed authority and ordered for release of the building in question in favour of the landlord, which has now been challenged by the Petitioner-tenant by means of present writ petition.

The only argument advanced on behalf of the tenant-Petitioner is that in view of the 4th proviso to Section 21(1) of the Act, neither the prescribed authority, nor the appellate authority has gone into the comparison of hardship, which might be caused to the tenant by allowing the application or the comparative hardship, which might be caused to the landlord by refusing the application and refused to enter into the comparison, as is required in the aforesaid provision of Section 21(1) of the Act. The factual position has not been disputed as is also evident from the perusal of both the impugned orders. Sri Ajit Kumar, learned Counsel for the contesting Respondent relied upon a decision of this Court in Jalil Ahmad Vs. Ist Addl. District Judge and Others, , wherein the learned single Judge of this Court has interpreted the proviso 4 of Section 21(1) of the Act in the following terms : "Prior to the last proviso, there are 3 more provisos and all the three provisos are in respect of an application moved under Clause (a). The use of word ''also'' in the last proviso indicates that this proviso also refers to an application under Clause (a) and not to an application made under Clause (b). In the circumstances, the two authorities below were not required to make an assessment of comparative hardship to the parties.

The another judgment relied upon by learned Counsel for the contesting Respondent is in Binda Prasad v. 3rd Addl. District Judge, Faizabad and Ors. 1984 (2) ARC 306, wherein this Court has held that "We are clearly of the view that there is only one view possible, namely, that the Fourth proviso cannot apply to applications under Clause (b). Accordingly, the decision in Jagannath Prasad (supra) to the extent it suggests that the said proviso would apply even to applications under Clause (b), cannot be considered to be good law and it is, accordingly, overruled.

I need not refer the decision of Jagannath Prasad''s case. The Petitioner has annexed the application filed by the landlord before the prescribed authority as Annexure-1 to the writ petition. The heading of the application itself demonstrates "Petition u/s 21(1) (a) and (b) of U.P. Act No. 13 of 1972. In my opinion, in this view of the matter, the argument advanced by Sri Ajit Kumar, learned Counsel for the contesting Respondent-landlord that the decisions of aforesaid Division Bench and single Judge will apply to the facts of this case, is not correct, as the application was filed with regard to both the provisions, i.e., Clauses (a) and (b) ; and the pleadings were also made with regard to both the clauses as well as the evidence has been adduced with regard to both the clauses and the prescribed authority as well as the appellate authority has erred in referring to only Clause (b) alone of Section 21(1) of the Act and held that no comparison is required. In this view of the matter, the ratio of the decision relied upon by the learned Counsel for the landlord, in my opinion, does not apply to the facts of the present case. Since admittedly, no comparison has been made, both the orders deserve to be quashed and are hereby quashed.

In view of what has been stated above, this writ petition succeeds and is allowed. The orders dated 21.2.1994 and 8.4.1996, passed by the prescribed authority and the appellate authority, Annexures-5 and 8 to the writ petition, are quashed. The matter is remanded back to the prescribed authority to decide the application in accordance with law and in the light of the observations made above. Since the matter is fairly old, the prescribed authority is directed to decide the same within a period of three months from the date of production of a certified copy of this order. However, there will be no order as to costs.