Heard Sri Shafiq Mirza, learned counsel for petitioners, Sri Mohd. Arif Khan, Senior Advocate, assisted by Mohd. Adil Khan, counsel for respondents.
By means of present writ petition, petitioners have challenged order dated 03.09.2009 passed by District Judge, Harodi in Rent Appeal No. 2 of 2008, Mohd. Waris Khan Vs. Mohd. Zafar thereby allowing appeal of the landlord in respect to release of a shop.
Factual matrix of the present case are that Mod. Waris Khan/landlord moved an application for release under Section 21(1)(a) of U.P. Act 13 of 1972 inter alia stating therein that he is owner/landlord of shop situated at Mohalla Vehra Saudagar West, Bara Chauraha, Pargana Bangar, Tehsil and District Hardoi, purchased from its previous owner Rahul Asthana and Kapil Asthana by registered sale deed 05.07.1997, petitioner are tenant in the said shop on a monthly rent of Rs. 120/-.
In the release application, landlord/respondent pleaded that his family is consisting of himself and two children. He failed to get any employment, so the shop in question purchased by him thereafter, gave notice to tenant/petitioner through his counsel Sri Shiv Sahai Misra on 14.03.2000 served upon them but they did not vacate the shop.
It is further pleaded in release application that landlord also apprised tenants the shops are available at Shankar Market near Arya Kanya Pathshala, Hardoi but no heed has been paid by tenants in this regard finally they refused to vacate the shop in question which is bona fidely required by him in order to run his business to earn livelihood of his family, so release application filed.
Petitioner/tenant contested release application by filing written statement denying the need of the landlord, however admitted that he is owner of the shop in question. In the written statement, it has been pleaded on behalf of petitioner that they filed suit for permanent injunction (suit No. 276 of 1997, Shoib Khan Vs. Kapil Asthana and others) in which temporary injunction granted by court concerned on 21.05.1997 served on the landlord/respondent on 24.05.1997. In spite of knowing the said fact landlord purchased the shop in question with ulterior motive to evict them, further if the landlord has genuine need of shop he should not purchase the shop in question which is under dispute subject to litigation rather purchase a vacant shop which is itself goes to show that the need of the landlord is neither genuine nor bona fide.
In written statement, it has been further pleaded that the said injunction suit (Suit No. 276 of 1997) decreed in their favour thereafter release application filed, and the landlord is carrying out his business of repair Torch, Pressure Cooker, Stove etc. in a shop which is nearby situated to disputed shop under the tenancy of his father Sri Saukat Ali Zamal. Further during the pendency of release application Sri Saukat Ali Zamal died, as such by way of amendment it was brought on record by the petitioner, now landlord/respondent become tenant of the shop initially under the tenancy of his father, as his other brothers are doing separate business. So, there is no bona fide need exist on the part of landlord to get shop in dispute release in his favour.
In addition to abovesaid facts, it was also brought on record by tenants that they had searched for alternate accommodation/shop in Shanker Market where they are doing business of General Merchant from the shop in dispute in the name and style of Roshan Store which is only source of income of their family but they are unable to get the same.
After exchange of pleadings, evidences etc. the Prescribed Authority in order to decide P.A. Case No. 16 of 2001, framed three issued, namely"-
(1)Kya Prarthi ki prashangat dukan kis aawashyakta hai?
(2)Kya Prarthi ki ukt aawashyakta hai?
(3)Prashngat dukan ke babat tulnatmak kathinai kis paksh ko adhik gohi.
Prescribed Authority on the basis of material on record in respect to issue No. 1 held that applicant/landlord is need of shop in question. However, whether the need of the said shop is bona fide or not shall be decided while deciding the other issues.
So far as issue No. 2 is concerned, the Prescribed Authority had come to the conclusion that as per the pleadings of landlord he is an unemployed youth and if he is in need to get shop in question to establish his business, then that in circumstances he should have purchased a vacant shop and not a shop in dispute in respect to which Civil Court passed an decree in Suit No. 276 of 1997. Accordingly, Prescribed Authority held that need of the landlord/respondent is not bona fide and genuine.
So far as issue No. 3 is concerned, Prescribed Authority had come to the conclusion on the basis of material on record that if need of landlord is a bona fide and genuine in order to carry out livelihood then in that circumstances he should have purchase an undisputed vacant shop in Shanker Market not shop in dispute. Further Prescribed Authority also given a finding that tenants, during the pendency of the release matter made an effort to search out an alternate accommodation and in this regard they filed an affidavit (paper No. 63Ga) but unable to search any alternate accommodation. So the comparative need of the tenant is more genuine and bona fide in comparison to landlord and by order dated 29.04.2008 dismissed release application, moved by landlord/respondent.
Aggrieved by the same, Modh. Waris Khan/landlord filed rent appeal (Rent Appeal No. 2 of 2008) by order dated 03.09.2009, the District Judge/Appellate Authority allowed appeal. While allowing the same, findings given by appellate authority are summarized as under:-.
(a) "For the purpose of release of an accommodation under Section 21(1)(a) of the Act, the landlord has not only to prove that he has a need of the tenanted accommodation but he must also prove that his need is bonafide and genuine. A mere desire to have an accommodation which is under the occupation of a tenant, is not sufficient.
(b) It has been held that occupancy of landlord in the capacity of tenant is itself sufficient indicative of the fact that landlord needs additional accommodation to run his business because existing accommodation which does not fulfill the requirement of the landlord cannot be said to be alternative accommodation. The respondents have drawn the attention of this court towards the admission of the appellant in which he has admitted that his brothers have independent business and he looks after the business of his father. Even if this admission of the appellant is taken into consideration, his need for the disputed shop would not be held to be malafide in view of the law laid down by the Hon'ble High Court.
(c) The learned Prescribed Authority while deciding issue of comparative hardship, has held that the respondents shall suffer greater hardship as compared to the appellant in case the release application is allowed. This finding has been arrived at on the ground that the respondents shall suffer more hardship as they had been carrying on business since 1963, they had no alternative accommodation to shift their business and they could not get any other shop on rent in spite of efforts made by them. This finding is again contrary to the facts and law both. There is no evidence to prove that the respondents actually made any effort to search any other shop on rent. They have failed to show as to what efforts were made by them since they got the notice to vacate the shop. It is also important to mention here that the respondents suggested several shops for purchase by the appellant but did not themselves purchase any shop for their business. It is also noteworthy that whenever a tenant is asked to vacate the tenanted premises, he suffers some hardship but if the release application is decided keeping in view this hardship, no application for release of any landlord can ever be allowed.
(d) Proceedings of release are going on since the year 1997 and appeal from 2001 and after a gap of about seven years, from the date of filing of appeal no efforts made by tenant to search alternate accommodation. Only on allotment moved, that too without mentioning the details of the property.
(e) Having gone through the pleadings, evidence of the parties and various pronouncements on the subject, I am of the considered opinion that the appellant has been able to prove his bonafide need for the shop in dispute and the appellant shall suffer greater hardship as compared to the respondents if application for release is rejected."
Aggrieved by order dated 03.09.2009 passed by Appellate Authority/District Judge, Hardoi in Rent Appeal No. 2 of 2008 (Md. Waris Vs. Mohd. Zafar and others) petitioners filed the present writ petition before this Court.
Sri Shafiq Mirza, learned counsel for petitioner while assailing impugned order submits that the landlord/respondent has no need of the shop in question from which petitioners are doing their business in case if he has any genuine and bona fide need then he should not purchase the shop in question in respect to which orders passed in Regular Suit No 276 of 1997 but ought to have purchased a vacant shop in the same market where the shop in question is situated hence need of the tenants are is more genuine and bona fide in comparison to the landlord rightly held by the Prescribed Authority but on wrong assumption and presumption set aside by appellate authority.
It is also submitted by Sri Shafiq Mirza, counsel for petitioner that landlord respondent after death of his fatherdoing business of repairing of Torch, Pressure Cooker, Stove etc. from shop situated at a very short distance to disputed shop originally under tenancy of his father and after his death neither any brother of landlord come forward with a plea that they also need shop in dispute to do business nor any eviction proceeding initiated by owner of said shop, as such need of tenant to retain shop in question from which they are doing their business since the year 1963 is more genuine and bona fide if evicted they will suffer greater hardship in comparison to landlord/respondent.
Next submission made by learned counsel for petitioner is that appellate court while passing impugned judgment reversed finding recorded by trial court without discussing any material evidence etc. available on record with respect to bona fide and comparative hardship between parties thus the same is illegal arbitrary and against settled proposition of law "live and let live".
Lastly, it has been argued by Sri Shafiq Mirza, learned counsel for petitioner that neither Prescribed Authority nor appellate authority considered regarding "Part Release" of accommodation in question and if said factor is taken into consideration and part of the accommodation in possession of petitioner is released as per provisions as provided under Rule 16(1)(d) read with Rule 16(2) of the Rules framed under U.P. Act XIII of 1992, the same shall satisfy alleged need of landlord and in this regard he placed reliance on following judgments:-
1.Smt. Raj Rani Mehratra Vs. IInd Addl. District Judge and others, 1980 ARC 311.
2.Badrinath Chunnilal Mutata 2005 (23) LCD 989
3.Pratap Narain Tandon Vs. Abdul Mudkar, 2005 (2) ARC 243
4.Swarj Kumar (Sir) Vs. Arvind Kumar, 2006 (3) ARC 614
5.Nand Kishore Awasthi Vs. Addl. District Judge, Court No. 3, kanpur Nagar and others 2005 (3) LCD 1115
6.Nathu Ram Vs. VIIth Addl.District Judge, Varanasi and others.
7.Unreported judgment dated 6th May, 2010 passed by Apex Court in Civil Appeal No. 4244 of 2006 Dinesh Kumar Vs. Yusuf Ali.
On the basis of abovesaid fact, Sri Shafiq Mirza, counsel for petitioner submits that order passed by appellate court illegal, arbitrary, liable to be set aside.
Sri Modh. Arif Khan, Senior Advocate, appearing on behalf of landlord/respondent submits that in the instant case, landlord respondent admittedly doing a business from a shop initially under tenancy of his father now under his tenancy so his need is bona fide and genuine to get shop in question release in his favour.
Sri Mohd. Arif Khan, further submits that Prescribed Authority although come to the conclusion that there is a need of landlord to get shop in question but thereafter on misinterpretation of facts and document on record held that need of landlord/respondent is not genuine and bona fide because he purchased shop in dispute under litigation and not purchased vacant shop to carry out livelihood of his family, the said finding are wrong and incorrect cannot sustain.
Moreover, the finding given by Prescribed Authority that tenant made an effort to search an alternate accommodation but no shop is available to them is also not correct fact because no genuine and bona fide effort have been made by the tenant to search an alternate accommodation since the release application is moved and once there is no bona fide effort made by tenant to search an alternate accommodation after moving of release application their comparative hardship and need cannot be considered in comparison to need of the landlord/respondent. So the judgement passed by Prescribed Authority is contrary to law and rightly set aside by appellate court holding.
Sri Mohd. Arif Khan, Senior Advocate further submits that finding given by appellate court that once it is established that the landlord is doing his business from a tenanted shop and tenant has not made any effort to search for an alternate accommodation he cannot dictate terms to the landlord to carryout his business in a tenanted shop or to take any accommodation on rent and in the present case, appellate court has also given a finding that proceeding release are going on since the year 1997, no genuine effort is made by tenant to search alternate accommodation only an allotment application moved that too without mentioning the details of property, so the same is futile exercise on the part of tenants they cannot derive any benefit from the said act.
Accordingly, order passed by appellate court on the basis of said material on record that need of landlord in comparison to tenant is more genuine and bona fide is perfectly valid and need no interference by this Court while exercising power of judicial review under Article 226 of the Constitution of India.
Sri Mohd. Arif Khan, further submits that so far as argument advanced by Sri Shafiq Mirza, learned counsel for petitioner that while considering the application for release moved by a landlord under Section 21(1)(a) in respect to a commercial space authorities under Rent Control Act are bound to consider the matter in respect to partial release is wholly incorrect and wrong argument because the provisions of Rule 16 (1) (d) of Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the rules) applies only in respect to residential buildings and the Rule 16(1)(d) does not deal with an accommodation let out for commercial purpose but Rule 16(2) of the Rules deals in respect to commercial building there is no provisions in the said rule, for partial release of the premises.
In so far as the arguments advanced by the counsel for the petitioners that the opposite party No. 1, while allowing appeal has to considered whether the partial release of the shop will not meet the requirement of the landlord (respondent No. 2) is concerned, there is no pleadings or basis for the same and more over, the width of the shop facing road is 12 feet and depth is 21 feet and appellate authority taking into account the totality of the facts and circumstances of the case, after holding that the need of landlord for the shop in dispute bona fide, allowed the appeal the said action is in accordance to the law as laid down in the following judgments:-
1. Balwant Singh & others Vs. Anand Kumar Sharma and others, (2003) 3 SCC 433.
2. Vishwanath Mehta & Others Vs. District Judge, Varanasi and others, 1988 (2) ARC 385.
3. Smt. Chandra Devi and others Vs. IIIrd ADJ, Nainital & others , 1984 (2) ARC 651
4. Mangna Nand Bhat Vs. Additional District Judge, Dehradun and others 1992 (2) ARC 27.
5. Kirshana Murari Lal Vs. IIIrd ADJ, Badaun & others, 1999 (2) ARC 80.
6. Ramji Lal Vs. 1st Addl. District Judge, Muzaffarnagar and others, 1992 (1) ARC 473.
7. Lalta Prasad Vs. District Judge, Etah and others, 1997 (1) ARC 80 He further submits that arguments advanced by the counsel for the petitioners that by applying the principles of live and let live, is in correct in view of the law as held by the apex court in the case of Badri Narayan Chunni Lal Bhutada Vs. Govind Ram, Ram Gopal Mundada in AIR 2003 Supreme Court 2713 and by this Court in the case of Hira Lal Vs. Vith Additional District Judge, Bareilly & others reported in 2006 (I) ARC 142, wherein it was held that if the petitioner failed to show whether he has made any effort to look for an alternative accommodation during the pendency of the proceedings then he has no right to plead hardship, and the balance of comparative hardship goes in favour of the landlord.
Sri Mohd. Arif Khan, further submits that Rule 16(1) (d) applies to residential accommodation where the question of part release can be considered while comparing respective hardship of the parties but the said provision does not find mention in Rule 16(2) of the Rules. So as per basic rule for interpretation of the words and phrases as propounded by the Apex Court in the case of Union of India and another Vs. Hansoli Devi and another, 2002 (7) SCC 273, the cardinal principle of construction of statute is that when the language of statue is plain and unambiguous then the court must give effect to the words used in the statute and it would not be open to the court to adopt a hypothetical construction on the ground that such construction is more consistent with the alleged object and the policy of the Act, as per law laid down by the Apex Court in the case of Dr. Ganga Prasad Verma Vs. State of Bihar and others, 1995 Supp (1) SCC 192 and in the case of Promoters & Builders Assn. Of Pune Vs. Pune Municipal Corpn. and others, (2007) 6 SCC 143 that while interpreting a statute, efforts should be made to give effect to each and every word used by the legislature, courts always presume that the legislature - inserted every part of a statute for a purpose and the legislative intention is that every part of the statute should have effect if the language of the Act is clear and explicit, could have give effect to it, whatever may be the consequences for in that case the words of the statute speak the intention of the legislature.
It is further submitted on behalf of the landlord that by applying the doctrine of harmonious construction the entire statute must be first read as a whole then Section by Section, Clause by Clause, Phrase by Phrase and word by word. The relevant provision of the statute, must, thus, be read harmoniously.
It is also well settled that the role of the court is not to legislate but to interpret the provisions of the statue and to iron out the crease the departure from the literal rule should only be done in very rare cases. Recourse can not be had to principle of interpretation other than literal rule where words of statute are clear and unambiguous. In support of said argument, reliance placed on the judgment by the Apex Court in the case of Southern Petrochemical Industries Co. Ltd., Vs. Electricity Inspector & ETIO and others (2007) 5 SCC 447, that a court would so interpret a provision as would help sustaining the validity of law by applying the doctrine of reasonable construction rather than making it vulnerable and unconstitutional by adopting rule of litralegis.
Since there is no provision under the Act or the rule of passing an order of partial release in respect to non residential accommodation the provision of Rule 16(1)(d) could not be made applicable in respect to release of a non residential accommodation and the law as laid down in this regard by Apex Court as well as by this Court should be applied. In the case of non residential building the provisions of Rule 16(1)(d) of Rules for partial release not applicable, as per the law as laid down by Full Bench Judgment of this Court in the case of Ganga Saran Vs. Civil Judge, Hapur, Ghaziabad and others, 1991 (9) LCD 149 and Sumtibai & others Vs. Paras Finance Co. Mankanwar W/o Parasmal Chordia (D) & Ors. 2008 (1) ARC 504 Sri Shafiq Mirza, learned counsel for petitioner in rebuttal submits that in view of the authorities cited by him of the Hon'ble Apex Court as well of this Court no doubt when an application for release moved in respect to commercial/business space let out by a landlord/owner the rule which governs filed while adjudicating the said application is Rule 16(2) of Rules, however even if there is no of the said provisions in respect to partial release of commercial/business space let out, but as per the law which are referred by him it does not affect the power of authorities vested under Section 21 of the Act to order partial eviction of a tenant from the portion of non-residential premises in appropriate circumstances of the case and interest of justice will sub-serve by such an order. So this Court cannot take a different view and should consider that matter in regard to partial release of the shop in dispute in the instant case. In support of the said argument Sri Shafiq Mirza, counsel for petitioner placed reliance on the following judgment:-
Apex Court in the case of Union of India and another Vs. Raghubir Singh (Dead) by LRS. Etc. (1989) 2 SCC 754, in para No. 27 and 28 (relevant portion quoted) held as under:-
"It is in order to guard against the possibility of inconsistent decisions on points of law by different Division Benches that the rule has been evolved, in order to promote consistency and certainty in the development of the law and its contemporary status, that the statement of the law by a Division Bench is considered binding on a Division Bench of the same or lesser number of Judges. This principle has been followed in India by several generations of Judges.
We are of opinion that a pronouncement of law by a Division Bench of this Court is binding on a Division Bench of the same or a smaller number of Judges, and in order that such decision be binding, it is not necessary that it should be a decision rendered by the Full Court or a Constitution Bench of the Court."
In the case of State of Tripura Vs. Tripura Bar Association and others, (1998) 5 SCC 637, it is held that as under:-
"We are of the view that the Division Bench of the High Court which has delivered the impugned judgment being a coordinate Bench could not have taken a view different from that taken by the earlier Division Bench of the High Court in the case of Durgadas Purkayastha. If the latter Bench wanted to take a view different than that taken by the earlier Bench, the proper course for them would have been to refer the matter to a larger bench."
In the case of Brijendra Kumar Gupta and others Vs. State of U.P. and others, 2000 (18) LCD 886, in para Nos. 8.6 and 8.8 (relevant portion quoted) held as under:-
8.6. We remind ourselves of the following observations made by a 5 Judges Constitution Bench of the Supreme Court in Sub-Committee of Judicial Accountability v. Union of India and others : AIR 1992 SC 63 :
".....Indeed, no coordinate bench of this Court can even comment upon, let one sit in judgment over, the discretion exercised or judgment rendered in a cause or matter before another co-ordinate bench..... Judicial propriety and discipline as well as what flows from the circumstances that each Division Bench of this Court functions as the Court itself renders any interference by one bench with a Judicial matter before another lacking as much in propriety as in jurisdiction."
The principle enunciated aforementioned equally applies to a High Court as it exercises its judicial functions through its different Benches--Single or Division Bench or Full Bench or Special Bench and while doing so each Bench constitutes the High Court itself.
8.8 The principle laid down by the Apex Court was also held to be applicable to the High Courts as well as by the Apex Court itself in Sri Venkateswara Rice, Ginning and Groundnut Oil Mill Contractors Co. etc. v. State of Andhra Pradesh and others, : AIR 1972 SC 51. in following words :
"It is strange that a coordinate Bench of the same High Court should have tried to sit on judgment over a decision of another Bench of that Court. It is regrettable that the learned Judges who decided the latter case overlooked the fact that they were bound by the earlier decision. If they wanted that the earlier decision should be reconsidered, they should have referred to the question in issue to a larger Bench and not to ignore the earlier decision."
In the case of Rajasthan Public Service Commission and another Vs. Harish Kumar Purohit and others, (2003) 5 SCC 480, Hon'ble Supreme Court in para Nos. 12 and 13 (relevant portion quoted) held as under:-
Para No. 12 - Unfortunately, the Division Bench hearing the subsequent applications did not even refer to the conclusions arrived at by the earlier Division Bench. The earlier decision of the Division Bench is binding on a Bench of coordinate strength. If the Bench hearing matters subsequently entertains any doubt about the correctness of the earlier decision, the only course open to it is to refer the matter to a larger Bench.
Para No. 13 - If the latter Bench wanted to take a view different than that taken by the earlier Bench, the proper course for them would have been to refer the matter to a larger Bench. We have perused the reasons given by the learned Judges for not referring the matter to a larger Bench. We are not satisfied that the said reasons justified their deciding the matter and not referring it to the larger Bench.
In the case of Sant Lal Gupta and others Vs. Modrn Co-operative Group Housing Society Ltd. and others, 2010 (28) LCD 1688, in para No. 19, it is held as under:-
Para 19- The earlier decision of the coordinate bench is binding upon any latter coordinate bench deciding the same or similar issues. If the latter bench wants to take a different view than that taken by the earlier bench, the proper course is for it to refer the matter to a larger bench.
In the case of Safia Bee Vs. Mohd. Vajahath Hussain alias Fasi, (2011) 2 SCC 94, in para Nos. 27 and 29 (relevant portion quoted) held as under:-
Para No. 27 - The learned Judges were not right in over-ruling the statement of the law by a Co-ordinate Bench of equal strength. It is an accepted rule or principle that the statement of the law by a Bench is considered binding on a Bench of the same or lesser number of Judges. In case of doubt or disagreement about the decision of the earlier Bench, the well accepted and desirable practice is that the later Bench would refer the case to a larger Bench.
Para No. 29 - In Central Board of Dawoodi Bohra Community and Anr. v. State of Maharashtra and Anr.: (2005) 2 SCC 673, (para 12), a Constitution Bench of this Court summed up the legal position in the following terms:
(1) The law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or co-equal strength.
(2) A Bench of lesser quorum cannot disagree or dissent from the view of the law taken by a Bench of larger quorum. In case of doubt all that the Bench of lesser quorum can do is to invite the attention of the Chief Justice and request for the matter being placed for hearing before a Bench of larger quorum than the Bench whose decision has come up for consideration. It will be open only for a Bench of co-equal strength to express an opinion doubting the correctness of the view taken by the earlier Bench of co-equal strength, whereupon the matter may be placed for hearing before a Bench consisting of a quorum larger than the one which pronounced the decision laying down the law the correctness of which is doubted.
Sri Shafiq Mirza, learned counsel for petitioner further submits that in view of the authorities, as well as mention hereinbelow, this Court has no option but to take the view taken by a coordinate bench in the matter in question and is to be held that while deciding an application for release under Section 21(1)(a), the authorities under Rent Contro Act have power for partial release of the accommodation let out for non residential purposes and in case if this Court defers from the said authority then in that circumstances the only course open is to refer the matter to larger bench as held in the case of Rajesh Kumar Verma Vs. State of M.P. And others, (1995) 2 SCC 129, in para No. 5 (relevant portion) quoted as under:-
"Para No. 5 - In the group of Writ Petitions which came up for decision before the Division Bench of the High Court, the High Court placing special reliance on this Court's decision in Director General Telecommunication and Anr. v. T.N. Peethambaram: (1987)ILLJ438SC , came to the conclusion that it was not open to the State Government to reduce the minimum qualifying marks in General English and the seats made available to SC/ST candidates by virtue of the said relaxation would revert to the General category students. It may here be mentioned that in taking this view the Division Bench departed from the view taken by another Division Bench of the same High Court in M.P. No. 3164/92 (Amrit Bajpai and Anr. v. State of M.P. and Ors.) dated 15th December, 1992, which judgment is produced as Annexure HI at page 42 of the paper book. This decision was brushed aside on the plea that it had not taken into consideration the decision rendered by this Court in Peethambaram's case. Needless to say that in such a situation the proper course is to refer the matter to a larger bench, a course which the subsequent Division Bench did not follow.
In the case of State of A.P. Vs. V.C. Subbarayudu and others, (1998) 2 SCC 516, in para No. 10 (relevant portion) quoted as under:-
Para 10 - affirmed in appeal earlier by Division Bench, the second Division Bench could not have dismissed the writ petitions and set aside the judgment and order of the learned single judge. We are not going into the validity of the orders passed by the two Division Benches as SAS Accountants did not come up in appeal in this Court against the order of the Division Bench subsequently made dismissing the writ petitions. We would, however, only like to say the second Division Bench if it was of the opinion that it had to take a different view than that taken by the first Division Bench the matter should as a matter of propriety have been referred to a larger bench. It is certainly a question of self-discipline which court should observe.
In the case of Lilawati Agarwal (Dead) by LRS and others Vs. State of Jharkhand, (2008) 15 SCC 464, wherein it is held that if a coordinate bench disagree with a law already held by a coordinate bench then the only course is open is to refers to a large bench and the proposition.
In the case of Nihal Singh Vs. Board of Revenue, 1987 RD 308, where it a Division Bench of this Court held that if a court of concurrent strength takes a contrary view as laid down by earlier bench of same strength then the only course open is to refer the matter to a larger bench. Again reiterated by a Division Bench of this Court in the case of Deena Nath and others Vs. Deputy Director of Consolidation, Ballia and others, 2010 (110) RD 584, I have heard counsel for parties and gone through record.
Rent Control Legislations are heavily loaded in favour of the tenants treating them as weaker sections of the society requiring legislative protection against exploitation and unscrupulous devices of greedy landlords. The Legislative intent has to be respected by the Courts while interpreting the laws. But it is being uncharitable to Legislatures if they are attributed with an intention that they lean only in favour of the tenants and while being fair to the tenants go to the extent of being unfair to the landlords. The Legislature is fair to the tenants and to the landlords - both. The Courts have to adopt a reasonable and balanced approach while interpreting Rent Control Legislations starting with an assumption that an equal treatment has been meted out to both the sections of the society. In spite of the overall balance tilting in favour of the tenants, while interpreting such of the provisions as take care of the interest of landlord the Court should not hesitate in leaning in favour of the landlords. Such provisions are engrafted in rent control legislations to take care of those situations where the landlord too are week and feeble and feel humble, as held by Hon'ble Mr. Justice Sabyasachi Mukharji, J. in the case of Prabhakaran nair Vs. State of Tamil Nadu, 1987 (4) SCC 238, under:-
"tenants are in all cases not the weaker sections. There are those who are weak both among the landlords as well as the tenants".
In the case of Malpe Vishwanath Acharya and Ors. v. State of Maharashtra and Anr. - : AIR1998 SC 60, Hon'ble Supreme Court emphasized the need of social legislation like the Rent Control Act striking a balance between rival interests so as to be just to law. "The law ought not to be unjust to one and give a disproportionate benefit or protection to another section of the society". While the shortage of accommodation makes it necessary to protect the tenants to save them from exploitation but at the same time the need to protect tenants is coupled with an obligation to ensure that the tenants are not conferred with a benefit disproportionately larger than the one needed. Socially progressive legislation must have a holistic perception and not a shortsighted parochial approach. Power to legislate socially progressive legislations is coupled with a responsibility to avoid arbitrariness and unreasonability. A legislation impregnated with tendency to give undue preference to one section, at the cost of constraints by placing shackles on the other section, not only entails miscarriage of just (SIC) but may also result in constitutional invalidity.
Hon'ble Apex Court in the case of Arjun Khiamal Makhijani v. Jamnadas C. Tuli and Ors. - (1989)4SCC612, dealing with Rent Control Legislation observed that provisions contained in such legislations are capable of being categorized into two : those beneficial to the tenants and those beneficial to the landlord. As to a legislative provision beneficial to landlord, an assertion that even with regard to such provision an effort should be made to interpret it in favour of the tenant is a negation of the very principle of interpretation of a beneficial legislation.
Now reverting to the facts of present case, it is not disputed between parties that shop in question purchased by landlord from its erstwhile owner Sri Rahul Asthana and Kapil Asthana situated in a complex known as Shanker Market from which tenants/petitioners are doing General Merchant business in the name and stile of Roshan Store and also that the landlord/respondent is doing a business of repairing Torch, Pressure Cooker, Stove etc. from a shop which is very near to disputed shop initially under the tenancy of his father late Sri S. Z. Khan and after his death came under his tenancy along with other legal heirs of deceased, original tenant as per the provisions as provided under Section 3(A) (2) of U.P. Act 13 of 1972.
Now, first question which is to be decided in the present case is whether the need of the landlord respondent is bona fide or not.
In order to decide the abovesaid facts, core question is to be considered whether the need of landlord is bona fide as per the provision of Section 21(1)(a) of U.P. Act 13 of 1972 in which he moved an application for release the word "bonafide" has been interpreted by the Hon'ble Supreme Court in the case Shiv Sarup Gupta V. Dr. Mahesh Chand Gupta (1999) 6 SCC 222 : 1999 SCFBRC 330, as under:-
"The term bonafide or genuinely refers to a state or mind. Requirement is not mere desire. The degree of intensity contemplated by "required bona fide" is suggestive of legislative intent that a mere desire which is the outcome of whim or fancy is not taken note of by the rent control legislation. A requirement in the absence of felt need which is an outcome of sincere,honest desire, in contradistinction with a mere pretence or pretext to evict a tenant, on the part of the landlord claiming to occupy the premises for himself or for any member of the family would entitle him to seek ejectment of the tenant. Looked at from this angle, any setting of the facts and circumstances protruding the need of the landlord and its bona fides would be capable of successfully withstanding the test of objective determination by the Court. The judge of facts should place himself in the arm chair of the landlord and then ask the question to himself-whether in the given facts substantiated by the landlord the need to occupy the premises can be said to be natural, real, sincere, honest. If the answer be in the positive, the need is bonafide. The failure on the part of the landlord to substantiate the pleaded need, or, in a given case, positive material brought on record by the tenant enabling the court drawing an inference that the reality was to the contrary and the landlord was merely attempting at finding out a pretence or pretext for getting rid of the tenant, would be enough to persuade the Court certainly to deny its judicial assistance to the landlord."
This Court in the case of Pramod Kumar Vs. VI Additional District Judge, Bijnor and others, 2000(1) ARC 185, has defined 'bona fide need' on the basis of decisions of the Hon'ble Supreme Court rendered in Muttu Lal Vs. Radhey Lal, AIR 1974 SC 1596 and Bega Begum Vs. Abdul Ahad Khan, AIR 1979 SC 272 : 1986 SCFBRC 346, as under :-
"The word 'bona fide' means genuinely and sincerely i.e. in good faith in contradiction to mala fide. The requirement of an accommodation is not bona fide if it is sought for ulterior purpose but once it is established that the landlord requires the accommodation for the purpose which he alleges there is of ulterior motive to evict the tenant that requirement should be bona fide"
In the same manner the word "bonafide" has been interpreted in the case of Jagdish Chandra Vs. District Judge, Kanpur Nagar and others 2008 2 ARC 756 and 2009 (2) ARC 802 Hariom Vs. Additional District Judge and others.
The Apex Court in the case of Sarla Ahuja. Vs. United India Insurance Company Ltd.,(1996) 5 SCC 353, held as under :-
"The rent controller should not proceed on the assumption that the landlord's requirement is not bona fide. When the landlord shows a prima facie case a presumption that the requirement of the landlord is bonafide is liable to be drawn. It is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without giving possession of the tenanted premises. While deciding the question of bona fides of the requirement of the landlords, it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted himself."
In the case of B.Balaiah V. Lachaiah, AIR 1965 AP 435 it was held that the words "for his own use" must receive a wide, liberal and useful meaning rather than a strict or narrow construction . It has been further held that while casting its judicial verdict , the Court shall adopt a practical and meaningful approach guided by the realities of life."
Further, the word 'reasonable requirement' has interpreted by the Hon'ble Apex Court in the case of Mst. Bega Begum and others Vs. Abdul Ahad Khan and others , (1979) 1 SCC 275 that the words ' reasonable requirement' undoubtedly postulates that there must be an element of need as opposed to mere desire or wish. The distinction between 'desire' and 'need' should be kept in mind but not so as to make the genuine need as a mere desire.
Moreover, the Apex Court in the case of Mst. Bega Begum (Supra) has held that it is not doubt true that the tenant will have to be ousted from the house if a decree of eviction is passed but such an event would happen eventually whenever a decree for eviction is passed and merely because the tenant will be ousted from the premises where he was running his activity cannot be itself be considered to be a hardship and be availed ground for refusing the landlord a decree for eviction.
In the case of Atma S. Berar Vs. Mukhtiar Singh, 2003 (2) SCC 3, after placing reliance on the earlier judgment given by the Apex Court in the case of Pravita Devi Vs. T.V. Krishnan 1996 (5) SCC 353 held as under:-
"The landlord is the best judge of his residential requirement. He has a compete freedom in the matter. It is no concern of the courts to dictate for him a residential standard of their own."
The High Court need not be solicitous and venture in suggesting what would be more appropriate for the landlord to do.
That was the lookout of the appellant and not of the High Court. The gratuitous advice given by the High Court was uncalled for..... There is no law which deprives the landlord of the beneficial enjoyment of his property."
In the instant case, both the courts below had come to the conclusion that there is a need of landlord for shop in question but Prescribed Authority negate the need of landlord/respondent on the ground that if he has actual need if a shop then he could have purchase a vacant shop available in the Market instead of purchasing disputed shop, in respect to which judgment and decree passed in Regular Suit No. 276 of 1997, is wholly incorrect and wrong finding because nobody can be compel to purchase a shop in a particular manner rather it is the choice of a person purchasing the same in what manner he purchase, further in the instant case the tenants/petitioners did not make any effort to search for alternate accommodation, cannot dictate terms to landlord to carry on his business in a tenanted shop. It is not intention of the legislature that the tenant should enjoy the property and landlord be asked to carry on a business in a tenanted shop or compel to take another accommodation to satisfy his need. So, in view of the said facts and on the basis of documents and material on record, the need of the landlord/respondent to get the shop disputed is bona fide and genuine rightly held by appellate court.
Next and foremost question which is to be decided in the present case is whether while deciding an application under Section 21(1)(a) of U.P. Act 13 of 1972 in respect to release of a commercial/business purpose, let out by a landlord for his personal use, the theory of partial release as provided under Rule 16(1)(d) of Rules framed under U.P. Act 13 of 1972, the authorities/courts under the Rent Control Act can borrow the same or not?, In the interest of justice, when such provision does not exist under Rule 16(2) of the Rules which lays down the parameters/guidelines, to be taken into consideration while deciding a release application under Clause (a) of sub-section 1 of Section 21 of U.P. Act 13 of 1972 in respect to a building let out for a commercial/business purpose.
Further, as per the law as cited by learned counsel for parties in the the instant matter in respect to fact that if an application under Section 21(1)(a) of Act a release application has been moved by a landlord/owner for non residential building, two views are there as follow:-
(a) The courts has held no doubt a similar provision is not found in sub-rule (2) of Rule 16 but it does not affect the power of authority vested under Section 21 of the Act to order eviction of the tenant from a non-residential premises in appropriate cases if the authorities satisfied when on the facts and circumstances of the case, the interest of justice will sub-serve by passing such an order.
(b) On the other hand, the Court in other judgments taking into consideration the law laid down by the Apex Court in the case of Bhagwan Das (Supra) held that the provisions of Rule 16(1) (d) of the Rules framed under the Rules could not be applicable when the release is sought for accommodation let out for business purpose.
In view of the abovesaid facts, points in issue in nut shell can be summarized as under:-
Set (A) Where the courts has held that while deciding a release application in respect to a commercial building moved by landlord under Section 21(1)(a), the provisions as provided under Rule 16(1) (d) of the Rules can be borrowed in the interest of justice in respect to partial release of building as held n the case of Smt. Raj Rani Mehratra Vs. IInd Addl. District Judge and others, 1980 ARC 311, as under:-
"We have heard counsel for the parties. On going through the judgments of the lower authorities also of the High Court we are satisfied that the issue arising under Rule 16(1)(d) of the rules framed under the U.P. Urban Buildings (Regulations of Letting, Rent and Eviction), Rules 1972, as to whether the landlord's need could have been satisfied by releasing only a part of the premises have not been gone into or considered by any of them. When the plea under the said rule was passed on behalf of the tenant in the High Court."
Thereafter, this Court on the basis of aforesaid judgment in the case of (a) Pratap Narain Tandon Vs. Abdul Mudkar, 2005 (2) ARC 243, (b) Swaraj Kumar Vs. Arvind Kumar, 2006 (3) ARC 614 (c) Nand Kishore Awasthi Vs. Addl. District Judge, Court No. 3, Kanpur Nagar and others 2005 (3) LCD 1115 (d) Smt. Saroj Mishra and others Vs. Smt. Chandrakanti Sinha and others, 2009 (27) LCD 874, held that no doubt a similar provisions is not found in Sub-rule 2 in Rule 16 Rules but it does not affect the power of authority vested under Section 21 of the Act to order eviction of the tenant from a portion of non-residential premises in appropriate case if authority satisfy when on the facts and circumstances of the case the interest of justice will serve by passing such an order.
Thereafter, Apex Court vide judgement and order dated 26th of May, 2010 passed in Special Appeal No. 4244 of 2006 Dinesh Kumar Vs. Yusuf Ali held as under:-
" However, in the facts and circumstances of the case, the High Court did not consider the relevant factors i.e. as what would be the magnitude of his business, and whether partial eviction of the appellant could serve the purpose of both the parties."
Set (B)- The provisions of Rule 16(1)(d) of the Rules whether relates in respect to release of residential buildings, cannot be taken into aid while deciding an application for release of a commercial premises as there is no provisions under rule 16(2) for release of commercial/business as held by the Hon'ble the Supreme court in the case of Bhagwan Das Vs. Smt. Jiley Kuar and others , 1999 (1) ARC 377, in paragraph No. 6 as under:-
"While dealing with the question of comparative hardship learned Counsel for the appellant 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."
Further, in Bhagwan Das (Supra), Hon'ble Apex Court distinguishing the earlier decision in the case of Bishan Chand vs. Vth Addl. District Judge, Bulandshahr [(1982) 1 SCC 626] stated the law in the following terms:
"It was also pointed out in this case that the provisions of Rule 16(2) of the Act (sic for Rules) had not been considered at all. In our opinion, the said decision is clearly distinguishable. Firstly, the instant case was one where there was an outweighing circumstance in favour of the landlord namely that two of her sons after completing their education were unemployed and wanted to carry on business for self-employment. Secondly, as already seen above, it was not a case where the provisions of Rule 16(2) can be said to have been ignored by the District Judge. Thirdly, it was a case where there was even this additional circumstance that the appellant had brought no material on record to indicate that at any time during the pendency of this long drawn out litigation he made any attempt to seek an alternative accommodation and was unable to get it."
This Court in the case of Mangna Nand Bhat Vs. Additional District Judge, Dehradun and others 1992 (2) ARC 27, in paragraph No. 14 has held as under:-
"the learned Counsel for the petitioner lastly contended that the Courts below did not consider that the need of the respondents would be satisfied by part accommodation. In my opinion, the learned Counsel for the respondents is correct in his submission that the provisions of Rule 16(1)(d) of the Rules framed under the Act would not be applicable when the release is sought for business purpose. (Refer Bhagwan Das Vs. Smt. Jiley Kaur and others, 1991 (1) ARC 377 (SC). The petitioner never raised this plea before the Courts below to enable them to consider the feasibility of apportionment of the accommodation and to assess the requirement of the respondents which could be met by part release of the accommodation. There is no material on record at this stage to consider this plea and I am not inclined to consider this aspect of the matter for the first time in proceedings under Article 226 of the Constitution before this Court. A suggestion was made by me to the learned Counsel for the parties to adjust amongst themselves some solution in this regard but no agreed solution be arrived at and even though both the parties brought on record offers and counter offers for adjustment of the accommodation between the parties.
Again this Court in the case of Lalta Prasad Vs. District Judge, Etah and others , 1997 (1) ARC 80, in paragraph Nos. 13 and 16 has held as under:-
"Para 13 -In Bhagwan Das v. Smt. Ziley Kaur and Ors. their Lordships of Hon'ble Supreme Court while dealing with Sub-rule (1) of Rule 16 were pleased to hold 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."
Para - 16- 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 case of Ganga Devi Vs. District Judge, Nainital and others 2008 (2) ARC 584, Hon'ble the Supreme Court has held as under:-
"We are, however, not oblivious of the fact that with the said rejoinder a sketch map has been annexed to show that it measured 13 ft. x 20 ft. We are, however, of the opinion that such disputed questions of fact cannot be gone into by this Court for the first time." taken into the said fact Hon'ble Apex Court further held that comparative hardship, undisputably, is a relevant factor for determining the question as to whether the requirement of the landlord is bona fide or not within the meaning of the provisions of the said Act and the Rules. It is essentially a question of fact. Such a question of fact, however, is to be determined on the touchstone of the statutory provisions as contained in Section 21(1)(a) and Rules 16(2)(c) of the Rules.
Rule 16 provides for some factors which are required to be taken into consideration for the purpose of determining the comparative hardship. Respondent No. 3 in this case does not have any business. If he has no business, the question of application of the factors as envisaged in the first part of clause (c) of Sub-Rule (2) of Rule 16 will not arise. On the findings of the Appellate Authority, no accommodation is available with him. The question of thus any premises being let out in favour of 1st appellant also does not arise.
"Admittedly, the Courts below have not considered this aspect of the matter. This Court directed the parties to compromise the matter and explore the possibilities as to whether a portion of the premises in question could be released. The petitioners agreed to vacate a portion of the premises, was, however, not agreeable to by the landlord who submitted that he required the entire premises in order to set up the business for both his brothers and, therefore, releasing only a portion of the premises would not be sufficient for both the brothers. Consequently, the effort of a compromise failed and the matter was dealt on merit. I find, that there is some strength in the contention raised by the landlord. In the first place, the application for release is to settle the two brothers. The landlord has come out with a clear case that after demolition he would make a new construction on the ground floor as well as on the first floor in order to settle his two brothers. Therefore, the bonafide need of the landlord to settle his two brothers. Further Rule 16(1)(d) of the Rules contemplates consideration of a partial release of the premises in question where the premises is required for residential purposes. This provisions will not apply to a building which is being released for a commercial purposes. I am of the view that Rule 16(1) (D) is not applicable to the present premises and is only applicable to a building which is being released for residential purpose. Thus, I find no merit in the argument raised by the learned Counsel for the petitioners."
In the case of Krishna Murari Lal Vs. IIIrd Additional District Judge, Badaun and others, 1999 (2) ARC 80, in para Nos. 5, 6 & 7 (relevant portion) quoted as under:-
Para No. 5 - Rule 16 (1) (d) does not apply to commercial buildings. The prescribed authority is under a duty to consider under Rule 16 (1) (d) whether releasing a part of the disputed building will suffice the need of the landlord but similar provision has not been made under sub-rule (2) of Rule 16 which lays down the guidelines in respect of a building let out for the purposes of business. In Smt. Chanda Devi and another v. XIIth Additional District Judge, Kanpur and others. , Hon'ble R. M. Sahai, J. (as he then was) held that Rule 16 (1) (d) does not apply to non-residential buildings let out for the purposes of any business and repelled the contention raised on behalf of the petitioner that the guidelines laid down under Rule 16 (1) (d) should also be taken into account while considering the guidelines laid down in sub-rule (2) of Rule 16. The Hon'ble Supreme Court in Bhagwan Das v. Smt. Jiley Kaur and others, , held Rule 16 (1) of the rules cannot be placed reliance in respect of an accommodation let out for the purposes of business as sub-rule (1) of Rule 16 only deals with an accommodation let out for residential purposes and such rule is not relevant for non-residential accommodations. This view has been followed by this Court in Niranjan Prasad v. District Judge, Dehradun and others , wherein it was contended that the High Court must examine whether a part of the building can be released for business purposes placing reliance upon the decision of Smt. Raj Rant (supra) but it was held that in respect of non-residential building the sub-rule 16 (1) (d) being not applicable. If the plea that a part of the accommodation will suffice the need of landlord, is not raised, the Court is not required to record any finding itself. In Ramji Lal v. 1st Additional District Judge. Muzaffarnagar and others , the Court repelled the contention of the petitioner to consider the plea regarding release of a part of non-residential building. This Court did not permit to raise the plea for the first time in the High Court regarding release of a part of non-residential accommodation if the plea was not raised before the authorities below and no material evidence was placed vide Magnanand Bhatt v. Additional District Judge, Dehradun and others ; Oil and Oil Seeds . Exchange, Kanpur v. XIIth Additional District Judge, Kanpur Nagar and others ; M/s. Carona Ltd., Kanpur Nagar v. Ist Additional District Judge, Kanpur Nagar and others .
Para No. 6 - Learned counsel for the petitioner submitted that even if Rule 16 (1) (d) is not applicable in respect of non-residential building, still the Prescribed Authority is not bound to release the entire building under Section 21 (1) (a) of the Act. He placed reliance upon the decision Firm M/s. Shankar Lal Durga Prasad v. IVth Additional District Judge, Meerut and others , wherein the lower authorities had released only a part of the non-residential accommodation. The landlord contended that Rule 16 (1) (d) was not applicable in respect of non-residential building and, therefore, the entire accommodation should have been released. The Court repelled the contention holding that there is no prohibition under the Act that a part of the accommodation cannot be released in respect of requirement for business. In this case, the appellate authority had released only a part of the accommodation on the basis of material evidence on the record which was upheld by this Court.
Para No. 7 - Similarly in Jal Devi and others v. IVth Additional District Judge, Etawah and others. , the Court held that Rule 16 (1) (d) of the Rules is not applicable in respect of non-residential building but at the same time Section 21 (1) of the Act confers plenary power on the prescribed authority to release any building under the tenancy or any specified part but in that respect there must be pleading and evidence. The Court observed as under :
"Thus from the aforesaid legal provisions it is clear that while considering the release application with regard to residential accommodation, the prescribed authority is under the legal obligation to have regard to the provisions contained under Rule 16 (1) (d) of the rules. However, same cannot be said in respect of the non-residential building then it would be left for the parties to plead and set up a case that for specified need of the landlord, release of only part of the building is necessary and the whole building is not required by him. If such a plea is raised then only the prescribed authority and the appellate authority may be required to consider for release of the part of the commercial accommodation."
In the case of Ramji Lal Vs. 1st Addl. District Judge, Muzaffarnagar and others, 1992 (1) ARC 473, in paragraph Nos. 17 & 18 held as under:-
Para No. 17 - The next submission raised by the learned Counsel for the petitioner was that Rule 16(1)(d) hs not been considered. This submission is misconceived. This Rule applies only in a case of a residential accommodation and not for an accommodation for business purposes. He has relied upon a decision reported in Pushottam and other Vs. Additional District Judge, jaunpur and others, 1982 (1) ARC 279. In that case it was held that Rule 16(1) (D) was attracted for the premises which was occasionally used for the residential purposes. In that case a part of the disputed premises was used for residential purposes whereas in the instant case there is no such plea or finding.
Para No. 18 - In another case reproted in M/s. Ram Nath Export Private Ltd., Agra Vs. Additional District Judge, Agra and others, 1984 ALR 716, the accommodation let out was for business purposes but the landlord required the same for residential purposes. The Court held that Rule 16(1) (d) was applicable. In the instant case the accommodation was let out for business purposes and the release is also for that purpose. These cases have no relevance to the facts of the present case.
Now the question, in view of the abovesaid facts and judgments arises for consideration before this Court is to the effect that when two sets of different views exists then which view is to be followed or as argued by Sri Shafiq Mirza, learned counsel for the petitioner that "a co-ordinate bench could not have taken a different view that have take by co-ordinate bench of the High Court." So the matter be referred to a larger bench.
In order to decide the abovesaid controversy, I feel appropriate to have a glance to the relevant provisions as provided under Rule 16 of the Rules framed under U.P. Act 13 of 1972:-
"Rule 16 - Application for release on the g round of personal requirement [Sections 21(1)(a) and 35(8)] - In considering the requirements of personal occupation for 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) Where the landlord already has adequate and reasonably suitable accommodation having regard to the number of members of his family and their respective ages and his means and social status, his claim for additional requirements and be construed strictly;
(b) Where a residential building was let out at the time when the sons of the landlord were minors and subsequently one or more of them has married, the additional requirement of accommodation for the landlord's sons shall be given due consideration.
(c) Where the tenant has, apart from the building under tenancy, other adequate accommodation, whether owned by him or held as tenant of any public premises, having regard to the number of members of his family and their respective ages and his social status, the landlord's claim for additional requirements shall be construed liberally;
(d) Where the tenant's needs would be adequately met by leaving with him a part of the building under tenancy and the landlord's needs would be served by releasing the other part, the prescribed authority shall release only the other part of the building;
Rule 16(2) - While considering an application for release under Clause (a) of sub-section (1) of Section 21 in respect of building let out fro purposes of any business the prescribed authority shall also have regard to such facts as the following:-
(a) The greater the period since when the tenant opposite-party, or the original tenant whose heir the opposite party is, has been carrying on his business in that building, the less justification for allowing the application;
(b) Where the tenant has available with him, suitable accommodation to which he can shift his business without substantial loss there shall be greater justification for allowing the application."
Provisions as provided under Rule 16(1)(d) inter alia stated that the position is that Where the tenant's needs would be adequately met by leaving with him a part of the building under tenancy and the landlord's needs would be served by releasing the other part, the prescribed authority shall release only the other part of the building;"
Thus, from the perusal of said Rule, it is clear that while come into operation only if an application is being moved by a landlord in respect to release of a residential premises under Section 21(1)(a) of Act. But not in case where a release application is moved for a non residential premises, let out for business purpose and if an application for release is moved in respect to a building let out. for business purpose Rule which governs the filed is Rule 16(2) and in the said rule there is no provisions provided by the legislature in respect to part release of the premises, which is let out for commercial purpose, and that is the sole intention and object of the legislature while framing the Rule 16(2) while considering an application for release under Clause (a) of Sub-Section 1 of Section 21 of U.P. Act 13 of 1972 in respect to a building let out for the purpose of commercial /business purpose.
It is settled law that every word of statute should be given a meaning. While interpreting a statutory provision the entire section or whole of the statute, as the case may be, should be considered. According to Maxwell on the Interpretation of Statutes (12th edition page 36) any construction which may leave without affecting any part of the language of a statute should ordinarily be rejected.
Relevant portion from Maxwell on the Interpretation of Statutes (12th edition page 36) is reproduced as under:
"A construction which would leave without effect any part of the language of a statute will normally be rejected. Thus, where an Act plainly gave an appeal from one quarter sessions to another, it was observed that such a provision, though extraordinary and perhaps an oversight, could not be eliminated."
In view of above, the court should always avoid interpretation, which would leave any part of the provision to be interpreted without effect. While doing so every clause of a statute is to be construed with reference to the context and other clauses of the Act to make a consistent enactment of the whole statute-According to Maxwell (supra at page 47), statutory language should not be read in isolation but in its context.
While referring a decision of House of Lord reported in AG v. HRH Prince Ernest Augustus 1957 (1) All ER 49 (HL) in a famous treatise Principles of Statutory Interpretation by Justice G.P. Singh, the views of Lord Tucker has been discussed with approval as under (9th Edition page 34):
"In an appeal before the House of Lords, where the question was of the true import of a statute, the Attorney-General wanted to call in aid the preamble in support of the meaning which he contended should be given to the enacting part, but in doing so was met by the argument on behalf of the respondent that where the enacting part of a statute is clear and unambiguous, it cannot be controlled by the preamble which cannot be read. The House of Lords rejected the objection to the reading of the preamble,. Although, ultimately it came to the conclusion that the enacting part was clear and unambiguous. VISCOUNT SIMONDS (LORD TUCKER agreeing) in that connection said: "I conceive it to be my right and duty to examine every word of a statute in its context, and I use context in its widest sense as including not only other enacting provisions of the same statute, but its preamble, the existing state of the law, other statutes in pari materia, and the mischief which I can, by those and other legitimate means, discern that the statute was intended to remedy."
Learned author (supra) again proceeded to consider the judgement of Australian High Court and views of Lord Steyn in a case reported in . R v. National Asylum Support Service, 2002 (4) All ER 654 (page 35) is as under:
"As rightly pointed out by the High Court of Australia, "the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses context in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means-one may discern the statute was intended to remedy. LORD STEYN recently expressed the same view as follows: "The starting point is that language in all legal texts conveys meaning according to the circumstance is which it was used, it follows that context must always be identified and considered before the process of construction or during it. It is therefor wrong to say that the court may only resort to evidence of the contextual scene when an ambiguity has arisen."
Thus, the exposition 'ex visceribus actus' is a long recognised rule of construction. Words in a statute often take their meaning from the context of the statute as a whole. They are, therefore, not to be considered in isolation. Hon'ble Supreme Court in a case reported in, " : AIR1992SC1 , Mohan Kumar Singhania v. Union of India" has proceeded to hold as under:
"However, it is suffice to say that while interpreting a statute the consideration of inconvenience and hardships should be avoided and that when the language is clear and explicit and the words used are plain and unambiguous, were are bound to construe them in their ordinary sense with reference to other clauses of the Act or Rules as the case may be, so far as possible, to make a consistent enactment of the whole statute or series of statute/Rules/regulations relating to the subject matter. Added to this, in construing statute, the court has to ascertain the intention of the law making authority in the backdrop of the dominant purpose and underlying intendment of the said statute and that every statute is to be interpreted about any violence to its language and applied as far as its explicit language admits consistent with the established rules of interpretation."
The aforesaid settled rule on interpretation has been further affirmed by Apex Court holding that court cannot legislate. But to invoke judicial activism to set at naught legislative judgment is sub serve of the constitutional harmony and comity of instrum entalities in the following cases:-
(i) Union of India and another V. Deoki Nandan Agarwal, AIR SC 96
(ii) All India Radio V Santosh Kumar and another (1998) 3 SCC 237.
(iii) Sakshi V. Union of India and others,(2004) 5 SCC 518
(iv) Pandian Chemicals Ltd. V. CIT (2003) 5 SCC 590
(v) Bhavnagar University Vs. palitana Sugar Mills (P) and others, AIR 2003 SC 511.
(VI) J.P. Bansal V. State of Rajasthan, (2003) 5 SCC 134.
In the case of Ganga Prasad (Supra) the Apex Court in paragraph No. 5 has held as under:-
"Where the language of the Act is clear that explicit, the Court must give effect to it, whatever may be the consequences, for in that case the words of the statute speak the intention of the legislature. The interjection of the preposition 'or' at the underlined place amounts to judicial legislation or supplying omission which is impermissible in the process of construction of the Regulation. So we cannot read the Regulation in the matter suggested by the counsel.
In the case of Union of India Vs. Harsoli Devi and others, (2002) 7 SCC 273, Apex Court in para No. 9 has held as under:-
"Para No. 9 - Before we embark upon an inquiry as to what would be the correct interpretation of Section 28-A, we think it appropriate to bear in mind certain basic principles of interpretation of statute. The rule stated by Tindal, CJ in Sussex Peerage case, (1844) 11 Cl & F.85, still holds the field. The aforesaid rule is to the effect:
"If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense. The words themselves do alone in such cases best declare the intent of the lawgiver."
It is a cardinal principle of construction of statute that when language of the statute is plain and unambiguous, then the court must give effect to the words used in the statute and it would not be open to the courts to adopt a hypothetical construction on the ground that such construction is more consistent with the alleged object and policy of the Act. In Kirkness v. John Hudson & Co. Ltd, [1955] 2 All ER 345, Lord Reid pointed out as to what is the meaning of "ambiguous' and held that "A provision is not ambiguous merely because it contains a word which in different context is capable of different meanings and it would be hard to find anywhere a sentence of any length which does not contain such a word. A provision is, in my judgment, ambiguous only if it contains a word or phrase which in that particular context is capable of having more than one meaning."
It is no doubt true that if on going through the plain meaning of the language of statutes, it leads to anomalies, injustices and absurdities, then the court may look into the purpose for which the statute has been brought and would try to give a meaning, which would adhere to the purpose of the statute. Patanjali Sastri, CJ in the case of Aswini Kumar Ghose v. Arabinda Bose, [1953] SCR 1, had held that it is not a sound principle of construction to brush aside words in a statute as being inapposite surplusage, if they can have appropriate application in circumstances conceivably within the contemplation of the statute. In Quebec Railway, Light Heat and Power Co. v. Vandray, AIR (1920) PC 181, it had been observed that the Legislature is deemed not to waste its words or to say anything in vain and a construction which attributes redundancy to the legislature will not be accepted except for compelling reasons. Similarly, it is not permissible to add words to a statute which are not there unless on a literal construction being given a part of the statute becomes meaningless. But before any words are read to repair an omission in the Act, it should be possible to state with certainty that these words would have been inserted by the draftsman and approved by the legislature had their attention been drawn to the omission before the Bill had passed into a law. At times, the intention of the legislature is found to be clear but the unskilfulness of the draftsman in introducing certain words in the statute results in apparent ineffectiveness of the language and in such a situation, it may be permissible for the court to reject the surplus words, so as to make the statute effective. Bearing in mind the aforesaid principle, let us now examine the provisions of the Section 28-A of the Act, to answer the questions referred to us by the Bench of the two learned Judges. It is no doubt true that the object of Section 28-A of the Act was to confer a right of making a reference, who might have not made a reference earlier under Section 18 and, therefore, ordinarily when a person makes a reference under Section 18 but that was dismissed on the ground of delay, he would not get the right of Section 28-A of the Land Acquisition Act when some other person makes a reference and the reference is answered. But the Parliament having enacted Section 28-A, as a beneficial provision, it would cause great injustice if a literal interpretation is given to the expression "had not made an application to the Collector under Section 18" in Section 28-A of the Act. The aforesaid expression would mean that if the land-owner has made an application for reference under Section 18 and that reference is entertained and answered. In other words, it may not be permissible for a land owner to make a reference and get it answered and then subsequently make another application when some other person gets the reference answered and obtains a higher amount. In fact in Pradeep Kumari's case the three learned Judges, while enumerating the conditions to be satisfied, whereafter an application under Section 28-A can be moved, had categorically stated -"the person moving the application did not make an application to the Collector under Section 18". The expression "did not make an application", as observed by this Court, would mean, did not make an effective application which had been entertained by making the reference and the reference was answered. When an application under Section 18 is not entertained on the ground of limitation, the same not fructifying into any reference, then that would not tantamount to an effective application and consequently the rights of such applicant emanating from some other reference being answered to move an application under Section 28-A cannot be denied. We, accordingly answer question No. l(a) by holding that the dismissal of an application seeking reference under Section 18 on the ground of delay would tantamount to not filing an application within the meaning of Section 28-A of the Land Acquisition Act, 1894."
In the case of Promoters & Builders Assn. Of Pune Vs. Pune Municipal Corpn. and others, (2007) 6 SCC 143, Hon'ble the Supreme Court after placing reliance in the case of Harsoli Devi(Supra) held in paragraph No. 11, relevant portion is as under:-
" that it is a cardinal principle of construction of a statute that when the language of the statute is plain and unambiguous, then the Court must give effect to the words used in the statute and it would not be open to the court to adopt a hypothetical construction on the ground that such construction is more consistent with the alleged object and the policy of the Act"
In the case of Southern Petrochemical Industries Co. Ltd., Vs. Electricity Inspector & ETIO and others (2007) 5 SCC 447, the Apex Court in paragraph No. 78 and 92 has held as under:-
Para No. 78 - It is one thing to say that where the words or expressions in a statute are plainly taken from an earlier statute in pari materia, which have received judicial interpretation, it must be presumed that the Parliament was aware thereof and intended to be followed in latter enactment. But, it is another thing to say that it is necessary or proper to resort to or consider the earlier legislations on the subject only because the consolidating Act re-enacts in an orderly form the various statutes embodying the law on the subject.
Para No. 92 - The intention of the legislature must be, as is well known, gathered from the words used in the statute at the first instance and only when such a rule would give rise to anomalous situation, the court may take recourse to purposive construction. It is also a well settled principles of law that casus omissus cannot be supplied.
In view of the abovesaid facts, the principle of law which emerged out is to the effect that:-
"If the language of the Act is clear and explicit, the Court must give effect to it, whatever may be the consequences, for in that case the words of the statute speak the intention of the legislature.
In the case of Sumtibai & others Vs. Paras Finance Co. Mankanwar W/o Parasmal Chordia (D) & Ors. 2008 (1) ARC 504, Hon'ble Apex Court held as under:-
"As observed by this Court in State of Orissa v. Sudhansu Sekhar Misra, (AIR 1968 SC 647 vide para 13) :-
"A decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in it. On this topic this is what Earl of Halsbury, LC said in Quinn v. Leathem, 1901 AC 495:
"Now before discussing the case of Allen v. Flood, (1898 )AC 1 and what was decided therein, there are two observations of a general character which I wish to make, and one is to repeat what I have very often said before, that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical Code, whereas every lawyer must acknowledge that the law is not always logical at all."
11. In Ambica Quarry Works v. State of Gujarat and Ors., (1987) 1 SCC 213 (vide para 18) this Court observed:
"The ratio of any decision must be understood in the background of the facts of that case. It has been said long time ago that a case is only an authority for what it actually decides, and not what logically follows from it."
12. In Bhavnagar University v. Palitana Sugar Mills Pvt. Ltd, (2003) 2 SCC 111 (vide para 59), this Court observed:
"It is well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision."
13. As held in Bharat Petroleum Corporation Ltd. and Anr. v. N.R.Vairamani and Anr., AIR 2004 SC 4778 : 2004 SCFBRC 454, a decision cannot be relied on without disclosing the factual situation. In the same Judgment this Court also observed:
"Court should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclid's theorems nor as provisions of the statute and that too taken out of the context. These observations must be read in the context in which they appear to have been stated. Judgments of Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes.
In London Graving dock co. Ltd. v. Horton, 1951 AC 737 at P. 761), Lord Mac Dermot observed:
"The matter cannot, of course, be settled merely by treating the ipsissima ventral of Willes, J. as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished judge.
In Home Office v. Dorset Yacht Co., (1970) (2) All ER 294) Lord Reid said, Lord Atkin`s speech...is not to be treated as if it was a statute definition it will require qualification in new circumstances. Megarry, J. in observed: One must not, of course, construe even a reserved judgment of Russell L. J. (1971) 1 WLR 1062 as if it were an Act of Parliament. And, in Herrington v. British Railways Board (1972 (2) ELR 537) Lord Morris said:
"There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case."
Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper.
The following words of Lord Denning in the matter of applying precedents have become locus classicus:
"Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect, in deciding such cases, one should avoid the temptation to decide cases (as said by Cardozo, J. ) by matching the colour of one case against the colour of another. To decide therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive."
*** *** *** "Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path of justice clear of obstructions which could impede it."
Further, in the case of Nasiruddin V. Sita Ram Agarwal,(2003) 4 SCC 753, the Supreme Court has held that the Court can iron out of the creases but cannot change the texture of the fabric. It cannot enlarge the scope of legislation or intention when the language of provision is plain, unambiguous . It cannot add or subtract words to statute or read something into in which is not there. It cannot rewrite or recast the legislation.
It is also settled proposition of law as laid down by Hon'ble Supreme Court in the case of State of U.P. V. Singhepa Singh, reported in AIR 1964 Supreme Court 358 as well as by Privy Council in the case of Nazir Ahmad V. King Emperor, reported in AIR 1936 Privy Council 253 that when the law prescribes a certain mode or specific mode of or for doing a thing or certain mode of exercising certain power of authority or right or for performing certain act then that act or thing has got to be done in that manner alone & not otherwise. Other modes in respect thereof are necessarily and by necessary implication taken to have been forbidden & closed.
A Full Bench of this Court in the case of Ganga Saran Vs. Civil Judge, Hapur, Ghaziabad and others, 1991 (9) LCD 149, held as under:-
"Similar situation arose before a Full Bench of Punjab and Haryana High Court in the case of M/s Indo Swiss Time Limited, Dundahera v. Umrao. AIR 1981 P and H 213. What the Full Bench in the said case held is extracted below:
"Now the contention that the latest judgment of a co-ordinate Bench is to be mechanically followed and must have pre-eminence irrespective of any other consideration does not commend itself to me. When judgments of the superior Court are of co-equal Benches and therefore, of matching authority then their weight inevitably must be considered by the rationale and the logic thereof and not by the mere fortuitous circumstances of the time and date on which they were rendered. It is manifest that when two directly conflicting judgments of the superior Court and of equal authority are extant then both of them cannot be binding on the courts below. Inevitably a choice, though a difficult one, has to be made in such a situation. On principle it appears to me that the High Court must follow the judgment which appears to it to lay down the law more elaborately and accurately. The mere incidence of time whether the judgments of coequal Benches of the Superior Court are earlier later is a consideration which appears to me as hardly relevant."
This decision was followed by the Bombay High Court in the case of Special Land Acquisition Officer v. Municipal Corporation, AIR 1988 Bombay 9. The majority of Judges in the Full Bench held that if there was a conflict between the two decisions of equal benches which cannot possibly reconcile, the courts must follow the judgment which appear to them to state the law accurately and elaborately.
Moreover, in the case of Lalta Prasad (Supra), this Court in para Nos 16 and 17 held as under:-
Para - 16- 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."
Para - 17- 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.
And in the case of Ramji Lal Vs. 1st Addl. District Judge, Muzaffarnagar and others, 1992 (1) ARC 473, in paragraph No. 19 has held as under:-
"Para No. 19- There is no dispute that if the provision of Rule 16(1) (d) have not been considered by the Appellate Authority the same can be considered by the High Court. Reference may be made to the case reported in Smt. Raj Rani Vs. IInd Additional District Judge, 1980 ARC 311 (SC). But since this Rule is not attracted in the present case, there was no question of it being considered.
In the light of abovesaid facts, the position which emerged out is to the effect that the only interpretation of Rule 16(1)(d) of Rules framed under U.P. Act 13 of 1972 is that the same has no application to a non-residential building as the said sub-rule does not deal with an accommodation let out for commercial/business purpose but deals with an accommodation let out for residential purpose, thus the Prescribed Authority or Appellate Authority in the aid of Rule 16(1)(d) cannot consider theory of partial release of a commercial/business space in respect to which release application moved by the landlord under Section 21(1)(a) of U.P. Act 13 of 1972 and the same is to be decided as per provisions as provided under Rule 16(2) of the Rules.
Accordingly, in view of the abovesaid facts, the submission as made by Sri Shafiq Mirza, learned counsel for petitioner that this Court should refer the matter to a larger bench, has no force and accordingly rejected.
Further, in the instant case, release application has been moved on 12.12.2001 and since then no effort has been made by the tenant petitioner to search for an alternate accommodation and only the plea taken by him that he has made a search for alternate accommodation and an affidavit filed to the effect that he has made a search for alternate accommodation but the same is not available does not support the said plea taken by tenants as appellate court had given a finding to the effect in the present case it is established on the basis of material on record that an allotment application moved by tenant/petitioner but without mentioning details of the property in respect to same, the said fact is also admitted by Sri Shafiq Mirza, learned counsel for petitioner that no details in respect to the property has been mentioned by his clients in the allotment application. So the said allotment application is meaningless as per the relevant provisions as provided for allotment of a premises under the Rent Control Act and on the basis of the same it cannot be said that tenant/petitioner made any sincere effort to search an alternate accommodation in the matter in question.
Thus, in the instant case on the basis of material on record, it is established that the tenant did not make any effort to search an alternative accommodation immediately, the filing of the release application and even thereafter, so the said facts are sufficient to tilt the balance of comparative hardship against the tenant as held by the Apex Court in the case of Bhutada V. G.R. Mundada 2003 Supreme Court 2713; 2005(2) ARC 899 , the said authority has been followed by this Court in Salim Khan V. Ivth Additional District Judge, Jhanshi and others , 2006(1) ARC 588 wherein it is held is under:-
" in respect of comparative hardship , tenant did not show what efforts they made to search alternative accommodation after filing of release application . This case sufficient to tilt the balance of hardship against them Vide Bhutada V. G.R. Mundada 2003 Supreme Court 2713; 2005(2) ARC 899. Moreover, rent of Rs. 6/- per month which the tenants are paying is virtually as well as actually no rent. By paying such insignificant rent they must have saved a lot of money. Money saved is money earned. They must , therefore, be in a position to take another house on good rent. Further, they did not file any allotment application for allotment of another house. Under Rule 10(3) of the Rules framed under the Act, a tenant, against whom release application has been filed, is entitled to apply for allotment of another house immediately. Naturally such person is to be given preference in the matter of allotment. Respondents did not file any such allotment application. Thus, the question of comparative hardship has also to be decided against the tenants."
The said view has been further reiterated by this Court in the following cases:-
(1) Jai Raj Agarwal Vs. Bhola Nath kapoor and others , 2005(3) ARC 417.
(2) Rulemuddin and others Vs. Abdul Nadeem ,2007(2) ARC 62.
(3) Mohabbey Ali Vs Taj Bahadur and other, 2009 (2) ARC 715.
(4) Raj Kumar Vs. Lal Khan, 2009 (2) ARC 740 (5) Ashis Sonar and other Vs. Prescribed Authority and others 2009 (3) ARC 269 .
As per admitted facts of the present case, petitioners/tenants are enjoying comforts of a rented shop while the landlord/respondent is doing his business from another rented shop and in this regard, appellate court after appreciacing facts of the present case stated to the effect that after filing of release application tenant had not made any sincere effort to find out alternate accommodation. So as per settled provision of law that when a release application is filed before the prescribed authority, tenant must find out suitable accommodation, he cannot force landlord to allow him to run his business from a shop rented to him.
Further, on the basis of the material documents on record it clearly established that tenants/petitioners failed to prove that he had moved any application under Rule 10 of the Rules framed under U.P. Act, 13 of 1972 for allotment of another accommodation to run his business but he simply filed an affidavit before court below indicating therein that he had moved an application for allotment that too indicating therein the shop/building in respect to which allotment application has been moved. In view of the said facts, I am of the opinion that the said act on the part of tenant/petitioner cannot said to be a a sincere effort made by him to search for an alternate accommodation since the date of moving of release application by landlord/respondent. Coupled with the fact in the present era in every City several commercial complex/shops are built and soft loans are also provided by banks to aspirants and in case if petitioner/tenant has made an effort in this regard then he might have get a shop to run his business which he running from the shop in dispute.
In view of the abovesaid facts, I do not find any illegality or irregularity in the judgment and order passed by appellate court.
For the foregoing reasons, writ petition lacks merit and is dismissed.
No order as to costs.
Order Date :- 05.05.2011 Ravi/