JUDGMENT Anjani Kumar, J.
1. Heard learned counsel for the petitioner and Sri S.K. Tyagi, who has put in appearance on behalf of the respondent.
2. In view of the fact that pure question of law is involved, Sri Tyagi does not want to file counter-affidavit. Thus, this writ petition is heard on merits.
3. The landlord-respondent filed an application under Section 21 (1) (a) of U. P. Act No. 13 of 1972 (in short the Act) before the prescribed authority for release of the accommodation in question which is a non-residential accommodation wherein the petitioner is carrying on his business. The prescribed authority allowed the application filed by the landlord. Aggrieved thereby the petitioner preferred an appeal as contemplated under Section 22 of the Act. The appellate authority affirmed the findings arrived at by the prescribed authority and dismissed the appeal. Thus, this writ petition.
4. The petitioner, in paragraph 3 of the writ petition, has stated that this writ petition is filed mainly on the ground that the courts below have failed to exercise jurisdiction vested in them by not considering the question whether need of the landlord can be satisfied by release in part of the accommodation in dispute under the tenancy of the petitioner. Sri Ramendra Asthana, learned counsel for the petitioner, submitted that since the prescribed authority as well as the appellate authority has failed to consider the question of part release of the accommodation in question, therefore, the matter deserves to be remanded back to the authorities. To this Sri Tyagi has objected that the petitioner cannot be permitted to raise this question in this writ petition when they have not specifically raised this point before the prescribed authority or the appellate authority. Sri Asthana in reply relies upon a decision of the Apex Court, Smt. Raj Rani Mehrotra v. IInd Addl. District Judge and Ors., 1980 ARC 311, wherein the Apex Court has ruled 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) Act, 1972, as to whether the landlord's need could have been satisfied by releasing only a part of the premises has not been gone into or considered by any of them. When the plea under the said rule was pressed on behalf of the tenant in the High Court. The High Court rejected it on the sole ground that no such plea has been raised by the tenant in his written statement and as such it could not be considered. It is clear that under the relevant rule it is duty of the Court to take into account that aspect while considering the requirements of personal occupation of the landlord and therefore, this issue will have to be remanded to the High Court.
We accordingly set aside the order of the High Court dismissing the writ petition and remand the matter back to it for determination of aforesaid issue. If necessary, the parties may have to be allowed to lead fresh evidence, if the High Court is unable to decide it on the materials on the record. If evidence becomes necessary, the High Court may in its turn remand the matter back to the trial court, which will give an opportunity to both the parties to lead fresh evidence."
5. Sri Asthana submitted that in view of law laid down by the Apex Court the objection raised by Sri Tyagi deserves to be rejected. Sri Tyagi then contended that since the accommodation in question is a non-residential accommodation which is governed by the provisions of Rule 16 (2) of the Rules framed under the U. P. Urban Buildings (Regulations of Letting, Rent and Eviction) Act, 1972, and not by the provisions of Rule 16 (1), therefore, the question of consideration of part release by the authorities does not arise. On this objection Sri Asthana relied upon a decision of the Apex Court in the case of Ramesh Chandra Kesharwani v. Dwarika Prasad and Anr., 2002 (4) AWC 2737 (SC) : 2002 (2) ARC 298, wherein taking notice of Sub-rules (1) and (2) of Rule 16, the Apex Court has ruled as under :
"6. Regarding Rule 16, it is to be noted that Sub-rules (1) and (2) lay down certain factors for consideration by the prescribed authority which is considering the question of eviction from the premises. Rule 16 (1) deals with premises in occupation for the purpose of residence and Rule 16 (2) deals with premises in occupation of a tenant for the purpose of any business. Clause (d) of Rule 16 (1) provides 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 latter part of the building. This provision, in our view, merely reiterates the power vested in the authority to order eviction of the tenant from the premises in entirety or portion of it. No doubt a similar provision is not found in Sub-rule (2) of Rule 16, but that does not affect the power of the authority vested under Section 21 of the Act to order eviction of tenant from a portion of the premises in an appropriate case if the authority is satisfied that on the facts and circumstances of the case interest of justice will be served by passing such an order. Therefore, the first contention raised by Shri Mehrotra cannot be accepted."
6. The Apex Court in paragraph 8 of the above judgment has also answered the question raised by Sri Tyagi that the petitioner cannot be permitted to raise this question for the first time. Relevant paragraph 8 is reproduced below :
"8. It is apparent from the observations quoted above that the learned single Judge had considered the question of partial eviction for the purpose of avoiding delay in bringing the litigation to a close and with a view to do justice between the parties. It is apparent that equitable consideration has weighed with the Court in passing the order. We would also like to note here that the learned single Judge appears to have been inclined to remand the case, but in order to avoid delay that would arise in case of remand, was persuaded to pass the order himself in all probabilities on the submission made by learned counsel for the appearing parties. In such circumstances, when an order has been passed on equitable considerations and with a view to do justice between the parties we do not feel that any interference with the order and judgment passed by the High Court is called for."
7. In view of the aforesaid decision the objection raised by Sri Tyagi deserves to be rejected and is hereby rejected. A perusal of orders of prescribed authority as well as the appellate authority demonstrates that neither prescribed authority nor the appellate authority considered the question of part release of the accommodation. Therefore, in the interest of justice, without entering into the merits of the rival contentions, I remand back the matter to the appellate authority to be decided after consideration of question of part release also in accordance with law.
8. In view of what has been stated above, this writ petition is allowed in part. The appellate authority is directed to decide the question of part release of the accommodation in question.