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Allahabad High Court · body

1996 DIGILAW 352 (ALL)

Shiv Dev Raj v. Addl D J Dehradun

1996-03-25

B.S.CHAUHAN, R.A.SHARMA

body1996
Judgment : R. A. Sharma, J. 1. In view of the conflicting decisions rendered by the learned Single Judges regarding the ambit and scope of Rule 16 (2) of the Rules framed under the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act), a learned Single Judge has referred the matter to the larger Bench for resolving the conflict. Hon'ble the Chief Justice has accordingly placed this matter before us. 2. SECTION 21 of the Act provides for release of a building under occupation of a tenant. Sub-section (1) (a) of the said SECTION, which is reproduced below, empowers the prescribed authority, on the application of the landlord, to order eviction of a tenant from the building under his tenancy on the ground that it is bona fide required by the landlord: "21. Proceedings for release of building under occupation of tenant.- (1) The prescribed authority may, on an application of the landlord in that behalf, order the eviction of a tenant from the building under tenancy or any specified part thereof if it is satisfied that any of the following grounds exists namely : (a) that the building is bonafide required either in its existing form or alter, demolition and new construction by the landlord for occupation by himself or any member of his family, or any person for whose benefit it is held by him, either for residential purposes or for purposes of any profession, trade or calling, or where the landlord is the trustee of a public charitable trust, for the objects of the trust. The fourth proviso to sub-section (1) of the same Section which requires the authority to consider the comparative hardship of the landlord and the tenant, is quoted below: "provided also that the prescribed authority shall, except in cases provided for in the explanation, take into account the likely hardship to the tenant from the grant of the application as against the likely hardship to the landlord from the refusal of the application and for that purpose shall have regard to such factors as may be prescribed. " 3. RULE 16 deals with application for release on the ground of personal requirements of the landlord. Sub-rule (1) of RULE 16 covers the case when the landlord requires the building for personal occupation for the purposes of his residence or any member of his family. " 3. RULE 16 deals with application for release on the ground of personal requirements of the landlord. Sub-rule (1) of RULE 16 covers the case when the landlord requires the building for personal occupation for the purposes of his residence or any member of his family. Sub-rule (2) deals with the case when the building has been let out for the purposes of business and is needed for personal requirement of the landlord. RULE 16 (2) (a), the scope and meaning of which has led to the conflicting decisions by learned Single Judges, is relevant and is reproduced below : "16 (2 ). While considering an application for release under clause (a) of sub-section (1) of Section 21 in respect of a building let out for purposes of any business, the prescribed authority shall also have regard to such facts as the. . . . . . . . . . . . . . . . . . . . . . . . (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 the justification for allowing the application. " 4. THE fourth proviso to sub-section (1) of Section 21 places obligation on the prescribed authority to consider the comparative hardship of the landlord and the tenant when considering the application under Section 21 (1) (a) and for that purpose it "shall have regard to such factors as may be prescribed". Privy Council in Ryots of Garabandho v. Zamindar of Parlakimedi, AIR 1943 PC 164 at p. 180 has laid down that the expression "have regard to" certain provisions has no definite or technical meaning and merely requires that those provisions must be taken into consideration. Supreme Court in Saraswati Industrial Syndicate Ltd. v. Union of India, (1974) 2 SCC 630 , relevant extract from which is reproduced below, has held that such an expression only requires the concerned authority to consider the relevant facts to which it is required to have regard: "clause 7 (2), set out above, requires the Government to fix the price 'having regard to the estimated cost of production of sugar on the basis of the relevant schedule*. THE expression 'have regard to' only obliges the Government to consider as relevant data material to which it must have regard (see Ryots of Garabandho v. Zamindar of Parlakimedi)". A Division Bench of this Court in Juggilal Kamlapat Bankers v. Wealth-Tax Officer and others, 1979 (116) ITR 646 has also given the same meaning to the expression "have regard to", as is clear from the following extract of its judgment: "even where the WTO proceeds under sub-section (2) of Section 7, what clause (a) thereof provides is that he shall have regard to the balance-sheet of the business. The expression 'have regard to' has not the same meaning as 'on the basis of. As observed by the Privy Council in Ryots of Garabandho v. Zamindar of Parlakimedi, AIR 1943 PC 164 at p. 180, the requirement to 'have regard to' the provisions in question, has no more definite or technical meaning than that of ordinary usage, and only requires that those provisions must be taken into consideration". 5. PATNA High Court in Mohammad Sagiruddin v. The District Mechanical Engineer, AIR 1966 PATNA 184 has, while considering the expression "have regard to", laid down as under: "moreover as pointed out by the Privy Council in Ryots of Garabandho v. Zamindar of Parlakimedi, AIR 1943 PC 164, the words 'have regard to' in a statutory provisions do not mean that there must be very strict compliance with the statutory provision, but that the provisions should be taken for guidance only." 6. TO the same effect is the view of Calcutta High Court in Sharma Electric Engineering Works v. Radha Devi, AIR 1957 Cal 227 , wherein it was laid down as under: "I agree, with P. N. Mookerjee J. that the proper interpretation of the words, 'shall have regard to' is 'shall take into consideration'. In Ryots of Garabandho v. Zamindar of Parlakimedi, 7 Ind App 129: AIR 1943 PC 164 (B), the Judicial Committee had to consider the question of interpretation of the words, 'shall have regard to' in Section 168 of the Madras Estates Land Act, 1908. The majority of the Board of Revenue had taken the view that the requirement to 'have regard to' the provisions in question had not more definite or technical meaning than that the ordinary usage, and only required that these provisions must be taken into consideration. The majority of the Board of Revenue had taken the view that the requirement to 'have regard to' the provisions in question had not more definite or technical meaning than that the ordinary usage, and only required that these provisions must be taken into consideration. The Judicial Committee, after pointing out that this view, of the effect of the direction to 'have regard to' the provisions of the Act, was supported by the previous decision of the Madras High Court in Valuri Narasimha Rao v. Ryots of Peddamamidipalli, ILR 49 Mad 499 : AIR 1926 Mad 480 : (C) and certain observations of Reilly, J. in Rajah of Mandasa v. Jagannayahdu, 63 Mad LJ 450; AIR 1932 Mad 612 (FB) (DB) decided that this was the correct interpretation to be put on such words and that, as a matter of English, this view was nearer to the ordinary meaning of the phrase 'have regard to' than the view that the provision must be obeyed. " Therefore, when the fourth proviso to sub-section (1) of Section 21 requires the prescribed authority to have regard to such facts as may be prescribed it means that the authority when considering the application for release is required to take into consideration such facts as may be laid down by the Rules. Rule 16 (2) provides that the authority shall "also" have regard to the facts mentioned therein. The word "also" has been defined in the New Lexicon Webster's Dictionary, English Language, asunder: "also" - as well, in addition, besides. In view of use of the word "also" in sub-rule (2) of Rule 16 it is clear that the facts mentioned therein are not exhaustive. The prescribed authority can also consider the relevant facts other than those referred to in sub-rule (2) of Rule 16. But it cannot ignore the facts contained in sub-rule (2) of Rule 16. As the expression "have regard to" does not mean "on the basis of, the prescribed authority although is bound to take into consideration the facts stated in sub-rule (2) of Rule 16, but it is not bound to decide the dispute merely on their basis depending on the facts and circumstances of each case. 7. As the expression "have regard to" does not mean "on the basis of, the prescribed authority although is bound to take into consideration the facts stated in sub-rule (2) of Rule 16, but it is not bound to decide the dispute merely on their basis depending on the facts and circumstances of each case. 7. A learned Single Judge in Natthu v. Amar Nath Agarwal, 1995 (1) Allahabad Rent Cases 494, while considering the scope of Rule 16 (2)Ca) has held that if the tenant is carrying on business in the building for considerable long time the application for release has to be rejected. In this connection learned Judge has laid down as follows: "and if he has been carrying out his business of cycle repairing since such a long period, in that event the application for release was to be disposed of with the observations that there would be less justification for allowing the application. In such matters the Legislature does not leave any scope for speculation or to take into consideration other factors, as it limits a thing to be done in a particular manner, the other modes are forbidden," In this connection learned Judge has further observed that Rule 16 (2) (a) has prescribed particular method and procedure in accordance with which prescribed authority has to exercise jurisdiction while deciding the application for release and, therefore, it is not open to it to allow the application for release if the tenant has been in its occupation for considerable long time. We do not agree with the above views of the learned Judge. Rule 16 (2) has neither laid down any particular method and procedure in accordance with which the prescribed authority has to decide the application for release, nor has it prohibited the authority from considering other relevant factors. As mentioned earlier the expression "have regard to" certain facts merely means that the authority shall take them into consideration. But the authority is not bound to decide solely on the basis of those facts. As Rule 16 (2) is not exhaustive the authority is free to take other relevant facts into consideration while deciding the dispute. The decision of learned Single Judge in Natthu v. Amar Nath Agarwal, 1995 (1) Allahabad Rent Cases 494 (supra) does not lay the correct law and is, therefore, over-ruled. As Rule 16 (2) is not exhaustive the authority is free to take other relevant facts into consideration while deciding the dispute. The decision of learned Single Judge in Natthu v. Amar Nath Agarwal, 1995 (1) Allahabad Rent Cases 494 (supra) does not lay the correct law and is, therefore, over-ruled. The decision of the learned Single Judge in Jawahir v. VIth Additional District Judge, 1989 (2) Allahabad Rent Cases 24 and Ajay Kumar Tandon v. XIVth Additional District Judge, 1989 (1) Allahabad Rent Cases 509 and other cases which have held that Rule 16 (2) is not exhaustive and has merely laid down certain facts which have to be considered by the prescribed authority while deciding the landlord's application for release, represent the correct legal position. 8. HAVING held as above we return the file of this case for being listed before the learned Single Judge for appropriate order. Decided accordingly.