JUDGMENT J.C. Gupta, J.
1. This is landlord's petition. The dispute relates to a house situate in Mohalla Laxmipura in the city of Lalitpur. The landlord-petitioner moved an application purporting to be under Section 21 (1A) of the U. P. Act No. XIII of 1972 (briefly, the Act) against Naeem Ullah tenant since deceased whose legal representatives have been brought on record as respondent Nos. 1/2 to 1/8. Through that application, the landlord sought eviction of the tenant on the ground that he was in service of Indian Railways and was occupying Government occupation which he had to vacate on account of his retirement. He has no other house for his residence in the city of Lalitpur. His family consisted of self, two major song and five daughters, three married and two unmarried. It was further pleaded that while in service, he obtained law degree and after his retirement, he has decided to enter into profession as a lawyer and for that purpose in addition to his residential need, he requires a chamber for attending his clients at his residence. It was also stated that the petitioner's father before his death had taken on rent house No. 2, Chhatrashal Pura from where he was doing business of timber. The said accommodation was being used only for commercial purposes and is not a residential one. It was further alleged that in the disputed house there lies an open land having an area of about 2.200 Sq. ft, over which he would add construction to the existing tenanted building.
2. The tenant contested the said application, inter alia, pleading that he-was a tenant in the house of petitioner as well as of respondent Nos. 2 and 3. He denied allegation of the petitioner about his genuine and bona fide need of the house in dispute for his residence or the profession of Vakalat. It was also pleaded that Nand Kishore Gupta, father of the petitioner landlord was residing in house No. 2, Chhatrashal Pura along with his family members for more than 50 years and during his life time his son, the petitioner, his wife, daughters and also the wife and children of the petitioner, who were about thirteen in number, were residing in the said house and after the death of his father and mother and marriages of sisters as well as three daughters of the petitioner, there were left only five members in the family and the accommodation available in the said house of Chhatrashal Pura was sufficient to cater the need of the landlord and his family members as also for carrying on the profession of Vakalat from that house. It was also claimed by him that house No. 2 of Chhatrashal Pura was a double storey house having a number of rooms and a Baithak. The house was situate in the main market in Lalitpur and was very suitable for the petitioner. The house belongs to the trust of Dhanushdhari Ji and, therefore, the petitioner was not likely to be evicted from it and he was having that house at a very nominal rent of Rs. 2 or Rs. 2.50 per month. The tenant further placed his hardship and stated that in case he was evicted he would be thrown on the street.
3. By the order dated 17.9.1987, the Prescribed Authority allowed the landlord's application in part by releasing two big eastern rooms facing open land and further directed the tenant to vacate and deliver their possession to the petitioner within a month of the order. The application for remaining two small rooms in the house in question was rejected. Aggrieved by the said order, both the landlord and the tenant preferred appeals before the respondent No. 3. Both the appeals have been decided by a common judgment dated 30.9.88. The appeal filed by the landlord-petitioner has been dismissed while that of the tenant has been allowed in part and the judgment of the Prescribed Authority has been modified to the extent that only one room stands released in favour of the landlord for establishing his chamber therein to carry on his profession of Vakalat. Aggrieved by the said judgment, the tenant filed Writ Petition No. 21802 of 1988. That writ petition was dismissed by the order of this Court dated 4.9.96 for not taking steps for bringing legal representatives of the deceased tenant on record.
4. The instant petition has been filed by the landlord against the order of the Prescribed Authority as well as of the lower appellate court.
5. It would appear from the perusal of the judgment of the lower appellate court that it was of the opinion that the provisions of Section 21 (1A) of the Act were not attracted in the present case as the petitioner was already in occupation of a portion of house No. 2 Chhatrashal Pura. Respondent No. 3 further examined the question of bona fide need of the landlord and came to the conclusion that the accommodation in the aforesaid house of Chhatrashal Pura was sufficient and adequate for the residence of the petitioner and his family members. At the same time, it was also of the view that the petitioner had no suitable place in the aforesaid house to establish his chamber as a lawyer and thus he ordered release of one room out of the tenanted accommodation.
6. The only ground of challenge as urged by the learned counsel for the petitioner is that both the Courts below have erred in holding that the provisions of Section 21 (1A) of the Act were not attracted. He argued that the provisions of the said section were fully applicable and, therefore, in that event the landlord petitioner was entitled to get the entire house released and not a part of it.
7. Before coming to the real controversy between the parties, it would be necessary to have a look to the provisions of Section 21 (1A) of the Act which are reproduced as under :
"Notwithstanding anything contained in Section 2, the prescribed authority shall, on the application of a landlord in that behalf, order the eviction of a tenant from any building under tenancy, if it is satisfied that the landlord of such building was in occupation of a public building for residential purposes which he had to vacate on account of the cessation of his employment :
Provided that an application under this sub-section may also be given by a landlord in occupation of such public building at any time within a period of one year before the expected date of cessation of his employment, but the order of eviction of such application shall take effect only on the date of his actual cessation."
8. In order to succeed in an application moved under Section 21 (1A) of the Act, the landlord is required to establish the following facts :
(1) that he was in occupation of a public building for residential purpose ;
(2) that he had to vacate the official building on account of the cessation of his employment ; and (3) that he has no other house or accommodation for his residence which he could occupy as of right.
It is apparent from the perusal of the above provision that the cessation of employment and eviction from the public building are to be accomplished facts for entitling the landlord to get an order of release in his favour.
9. It is further clear from a plain reading of the above provision that the purpose of sub-section (1A) is different from the purpose of sub-section (1) (a), Section 21 (1) (a) of the Act would show that it has been made applicable to "a building under tenancy or any specified part thereof. In sub-section (1A), however, the word 'building' alone has been used and not the words "or any specified part thereof" and they are conspicuous by their absence therein. It is, therefore, open to the Prescribed Authority to direct the eviction of a tenant either from the whole of the building or any specified part thereof, while dealing with an application under Section 21 (1) (a) of the Act. However, no such order of eviction in piecemeal can be made in an application under sub-section (1A).
10. The main controversy, therefore, that arises for consideration is whether the provisions of Section 21 (1) (a) were attracted to the facts of the present case.
11. It is an undisputed fact that the landlord petitioner was in Government service and was occupying official residence. It is also not disputed rather it is an admitted fact that on account of retirement from service, the landlord had to vacate the Government residence. It is well-established law and not disputed by the respondents' counsel that if the provisions of Section 21 (1A) of the Act are attracted, in that event the hardship of the tenant is not required to be weighed with the hardship of the landlord. In such a situation, question of making comparison of hardship is foreign to the inquiry to be made by the authorities concerned. The lower appellate court has found as a fact that it was admitted to the petitioner and was also clear from the facts and evidence or the record that the petitioner was in possession and occupation of another house No. 2. Chhatrashal Pura. In this house, there are five rooms in the lower storey and one room with the verandah in the second storey. One room in the lower storey on the front side has been newly erected by the petitioner himself and the same was being used for business purpose. The house belongs to temple of Dhanushdhari and its rent is only Rs. 3 per month. This house was taken on rent by the petitioner's father and the entire family of the petitioner excepting himself was residing in the said house and he alone was living in the Government quarter at Basal and after his retirement, he has also shifted in the said house to live with his other family members. These findings of fact have neither been challenged before me by the petitioner's counsel nor they are disputed in the writ petition.
12. The question which calls for consideration is whether on these proved facts, provisions of Section 21 (1A) would still be applicable? in the case of Purshottam Saran v. IIIrd Additional District Judge, Moradabad and others, 1981 ARC 524, an averment was made on behalf of the tenant that since the landlord was actually occupying some other accommodation after his retirement, he was not entitled to get benefit of sub-section (1A). This submission was turned down by Hon'ble N.D. Ojha. J., of this Court as he then was. It was observed that sub-section (1A) applies to those cases alone where the landlord "had to vacate a public building on account of cessation of his employment". If he has been forced to vacate the public building on account of cessation of his employment, the landlord, of course, will have to occupy some other accommodation till his own building is vacated by the tenant. If that circumstance is material, then a landlord can be given benefit of sub-section (1A) perhaps only in those cases where he may be living just on the road side for want of any other shelter. This obviously was not meant by Section 21 (1A). The position may be different if the landlord owns several buildings and he has occupied one of his own buildings other than the building for which the application under Section 21 (1A) has been made.
13. In the case of R.K. Mathur v. Rajendra Mohan Mathur and others, 1988 LRJ 74, it was held that in a case where the provisions of Section 21 (1A) are applicable, there is a statutory mandate on the Prescribed Authority to direct eviction of tenant and that the only condition requisite for doing so was to arrive at a satisfaction whether the landlord was in occupation of a public building for residential purposes which he had to vacate on account of cessation of employment.
14. In the case of Iqbal Bahadur Jauhary v. Durga Charan and others, 1982 ARC 554, a Division Bench of this Court held that since the landlord was already in possession of some accommodation on the date of his retirement, the provisions of Section 21 (1A) of the Act could not be possibly made applicable. In the case of V.P. Puri and others v. District Judge, Saharanpur and others, 1983 ARC 129, a single Judge of this Court held that the basic indentment behind Section 21 (1A) is that a prefential right is sought to be conferred upon those landlords who are faced with the problem, of finding a shelter for them upon retirement from Government service, as a result of having to vacate official accommodation allotted to them upon the cessation of their employment. In this case, the landlord was in occupation of official accommodation situate outside the State of Uttar Pradesh which he had to vacate on account of his retirement. It was held that even to such a case provisions of Section 21 (1A) would apply.
15. There is yet another Division Bench decision in the case of Kalyan Rai Saxena v. IInd Additional District Judge, Bulandshahr and others, 1982 ARC 363, over which reliance has been placed by the lower appellate court also. In that case, the landlords filed an application for the release of the tenanted accommodation on the ground that one of them, namely, Onkar Swarup Bhatnagar was in occupation of official residence allotted to him at Lucknow by virtue of his being the Additional Director in the Department of Animal Husbandry in the Government of Uttar Pradesh, On his retirement on 31.7.77, he had to vacate the official residence. He had no other accommodation suitable for his need except the one which was in occupation of the tenant. The landlords were, however, already in occupation of an adjoining portion of the building under the tenancy of the tenant but that portion of the house was neither sufficient nor suitable for the needs of the landlord's family. hence an application for release was moved. The application was contested by the tenant on the ground that the landlords already had sufficient accommodation in the adjoining portion of the tenanted building which was more than sufficient for their needs and the tenant would suffer far greater hardship, if evicted from the accommodation in question. The Prescribed Authority held that the landlord's application was liable to be allowed in view of the provisions of Section 21 (1A) of the Act. The Prescribed Authority was further of the view that another portion belonging to the landlord's which was in occupation of a tenant Kishan Singh in the same building was going to be released in favour of landlords, the best solution would be to direct the release of the accommodation in dispute in favour of the landlords while allowing the tenant to occupy the portion which was in occupation of Kishan Singh. To give effect to the aforesaid arrangement, the Prescribed Authority further directed the landlords to nominate the petitioner for allotment of the accommodation which was in occupation of Kishan Singh so that the petitioner might occupy that portion without any difficulty. On appeal, the learned Additional District Judge held that firstly the case was covered by Section 21 (1A) and, therefore, the landlords were entitled to the release of the accommodation as a matter of course without having to establish that their need was genuine or that the hardship they would suffer would be greater than that likely to be suffered by the tenant, and secondly, that even upon a comparison, the hardship likely to be suffered by the landlord would be greater than that which the tenant would suffer. The appellate court also took note of the fact that the portion vacated by Kishan Singh would meet the requirement of the tenant whereas the landlords' need cannot be adequately satisfied except upon release of the accommodation under tenancy of the tenant-petitioner. With these findings, the appeal was also dismissed. Before this Court, it was submitted on behalf of the petitioner tenant that in view of the finding that the landlords already have in their occupation the adjoining portion of the building under tenancy. Section 21 (1A) could not be attracted. It was submitted on behalf of the tenant that the said provision comes into play only if the landlord, who in consequence of the cessation of his employment had to vacate an official residence allotted to him, is left without any residence whatsoever. In support of this submission reliance was placed on the decision in the case of J.C. Gupta v. District Judge, Dehradun and others, 1978 ALJ 1306. On behalf of the landlord, on the other hand, it was submitted that the said provision was not excluded even if the landlord has some accommodation available with him alter vacating the official residence allotted to him if the accommodation is already available with him or which becomes available to him upon his vacating the official residence is inadequate or unsufted to the needs of the landlord. It was held by their Lordships in paragraph 8 of the report "Having heard learned counsel for the parties and giving the matter a careful thought, we are clearly of the opinion that Section 21 (1A) of the Act would not be attracted where the landlord has already a vacant accommodation which he could occupy in his own right after vacating the official residence allotted to him."
16. It was further held in the aforesaid decision that upon proof of the fact that the landlord was in occupation of an official residence which he has had to vacate in consequence of the cessation of his employment, the landlord becomes entitled straightway to the release of the accommodation as a matter of course and the authorities are bound to release the accommodation under the provisions without any consideration of the hardship which the tenant might suffer by the grant of the application. If the ingredients of Section 21 (1A) are there, the authority cannot so much as even enquire whether the landlord does bona fide require the accommodation in question. There is a little doubt that sub-section (1A) affects the tenant in a serious way, leaving him entirely defenceless. Such a stringent provision must be subject to the closer scrutiny with a view to find out its true purpose in the light not only of this provision but in the context of the other relevant provision.
17. Their Lordships then summed up their views by holding that if the landlord already has some accommodation in his possession after vacating the official accommodation but considers that accommodation inadequate or unsuitable for his occupation, his remedy is under Section 21 (1) (a). Section 21 (1A) will be attracted only where the landlord who had to vacate an official-residence allotted to him is left with no accommodation whatsoever which he can occupy in his own right. It was further held that a temporary occupation by a landlord of some accommodation which he cannot use as of right pending the grant of his application under Section 21 (1A) cannot exclude the application of that provision.
18. The object of enacting Section 21 (1A) appears to be to provide an immediate shelter to a landlord who is living without any accommodation in consequence of having to vacate a public building upon cessation of his employment. This provision has been made to meet the exigencies arising out of the landlord being confronted with serious problem of finding accommodation for his residence after being deprived of the use of the public building which was allotted to him so that he might rehabilitate himself without going through a rigorous and time-consuming process provided under Section 21 (1) (a) of the Act. Where the provision of Section 21 (1A) is attracted, the need of the landlord would be presumed to be genuine and his requirement must necessarily take precedence over that of the tenant. Where this sub-section is attracted, the Prescribed Authority has not been given any option with regard to the making of an order of eviction. This sub-section is couched in a mandatory language as is evident from the fact that the Legislature has employed the word 'shall' whereas sub-section (1) (a) uses the word 'may'. The mandate of the Legislature is further amplified by the fact that this sub-section has an overriding effect as this provision begins with a non-obstante clause 'notwithstanding'. Where this sub-section applies, it will be against the true intent of the Legislature, if the authority concerned is asked to make an enquiry regarding the need and requirements of the landlord or weigh the likely hardships of the parties.
19. In the present case, as per the finding recorded by the lower appellate court, the petitioner's family was already residing with his father in a rented accommodation having sufficient accommodation even before the petitioner retired from service. The petitioner also after retirement started living in the same accommodation along with the family members. It is true that the petitioner and his family members were residing in that house as a tenant but it cannot be said that they had no right to continue in that accommodation. The landlord's case that the said accommodation was not sufficient and suitable for his residential use and for establishing a chamber in the house in question would not bring the case within the ambit of Section 21 (1A). The position would have been different had the landlord been forced to take on rent a building temporarily after his retirement with a view to have a shelter till the application for release was decided because after all, the landlord has to make some arrangement for shelter and he cannot be expected to live on roadside. A distinction, therefore, has to be drawn between the cases where the landlord has been in occupation of some residential accommodation as of right since before moving the application for release or gets such an accommodation during the pendency of release application which he could occupy as of right and the cases where the landlord had to make a temporary arrangement for his residence only for a limited period till his application, was decided. To the former classes of cases, provisions of Section 21 (1A) would not apply even on the ground that the accommodation in occupation of the landlord was insufficient and unsuited to his need, whereas the said provision would be attracted in the latter type of cases even though the accommodation taken on rent as a temporary measure may be bigger than the tenanted accommodation of which release has been sought. In the case in hand, the landlord was already occupying with his family members a tenanted accommodation much before the date when he had to vacate his official residence on account of cessation of his employment. In my view, the provision of Section 21 (1A) of the Act would not be attracted in such a situation.
20. The next question that arises for consideration is that in an application purporting to have been made under Section 21 (1A) of the Act, the authority could still make an inquiry under Section 21 (1) (a) of the Act about the bona fide need of the landlord for additional accommodation. There is no inhibition in law for making a composite application under Sections 21 (1) (a) and 21 (1A) of the Act. They are not incompatible with each other. Even where the heading of the application makes a mention of Section 21 (1A) only with no reference to Section 21 (1) (a) therein, the authority is not precluded from considering the application as if moved under Section 21 (1) (a) also where the facts pleaded therein are to that effect. Mere omission in making reference to a particular provision of law in the heading of the application does not have the effect of ousting the jurisdiction of the authority concerned to consider the application under the relevant provision of law.
21. In the present case, both the Courts below have also considered the question of bona fide need of the landlord and have also compared the likely hardship to be suffered by each of the parties. On an evaluation of evidence on record, it has been found by the lower appellate court as a fact that the landlord's need for additional accommodation in the house in question for his residence was not bona fide and genuine inasmuch as he has in his occupation sufficient accommodation to meet his requirement. However, with regard to the need of establishing a chamber for carrying on the profession of Vakalat, the need of the petitioner has been found to be genuine and bona fide. The lower appellate court has also compared the respective hardship of the parties and has come to the conclusion that the landlord would suffer far greater hardship if his application in relation to his need for having a chamber is also rejected. Neither during the course of argument nor in the grounds of petition, the petitioner has challenged the aforesaid findings of fact recorded by the Courts below. This Court has, however, examined the record and finds no cogent and sufficient reason to take a view different from the one taken by the Courts below. Accordingly, this writ petition must be dismissed.
22. For the above reasons this writ petition is dismissed with no order as to costs.