JUDGMENT Hon’ble S.U. Khan, J.—Heard learned counsel for the parties. 2. This is tenants’ writ petition arising out of eviction/release proceedings initiated by landlord respondent No. 2 Sanjeev Kumar on the ground of bona fide need under Section 21 of U.P. Urban Buildings (Regulation of Letting, Rent & Eviction) Act, 1972. Property in dispute is a house rent of which is Rs. 60/- per month. Release application was registered as P.A. case No. 40 of 1997. Prescribed Authority/Addl. J.S.C.C. Bareilly through judgment and order dated 15.9.2000 dismissed the release application. Against the said judgment and order landlord respondent No. 2 filed R.C. Appeal No.18 of 2000. A.D.J. Court No. 6, Bareilly through judgment and order dated 7.5.2002 allowed the appeal set aside the judgment and order passed by the Prescribed Authority and allowed the release application of the landlord, hence this writ petition by the tenant. 3. Landlord pleaded that in family partition in the year 1982 he got four houses i.e. house No. 514-B, 469-B, 470-A(disputed one) and western portion of 470-G. It was further pleaded that house No.514-B was sold by the landlord in the year 1986. Nothing has been pointed out regarding western portion of 470-G. In respect of house No. 469-B, landlord asserted that he had taken loan from his brother’s wife, Smt. Namrata Agarwal and as a security for payment of the loan he gave the said house to her and she was realising the rent of the said house as interest of the loan. Tenant asserted that the said house i.e. house No. 469-B was got vacated by the landlord through release proceedings under Section 16 of the Act, however, afterwards it was let out to two tenants. Landlord could not show that any registered or even written mortgage deed was executed by him in favour of his brother’s wife. 4. Landlord further pleaded that he was residing alongwith his father and his father was compelling him to vacate. It appears that in the partition father got house No. 477 in which landlord was residing. Unfortunately, father of the landlords died during pendency of release application on 12.11.1999 and the said fact was brought on record. The landlord himself gave the details of the properties which he got in partition in an affidavit filed before Prescribed Authority, copy of which is Annexure 3 to the writ petition. 5. Unfortunately, father of the landlords died during pendency of release application on 12.11.1999 and the said fact was brought on record. The landlord himself gave the details of the properties which he got in partition in an affidavit filed before Prescribed Authority, copy of which is Annexure 3 to the writ petition. 5. The main plank of landlord’s case was that both the petitioners are real brothers and joint tenants and wife of one of them is a nurse in Mission Hospital, Bareilly and she has been provided an accommodation by her employer in which both the petitioners are residing. During the arguments in this writ petition also main reliance was placed upon the said aspect of the matter. The situation is covered by Explanation (i) to Section 21(1) of the Act which is quoted below : “Where the tenant or any member of his family who has been normally residing with him or is wholly dependent on him has built or has otherwise acquired in a vacant state or has got vacated after acquisition a residential building in the same city, municipality, notified area or town area, no objection by the tenant against an application under this sub-section shall be entertained.” 6. The Supreme Court in the following authority, while interpreting the said explanation, has held that inspite of the said explanation landlord is required to prove his bona fide need. However, it has been held that tenant cannot oppose or adduce evidence in rebuttal of the said assertion of the landlord. 7. A.I.R. 1999 S.C. 2975, Sudha Agrawal v. Xth Addl. Dist. Judge and others, in the said case also even though the explanation was attracted (as the son of the tenant had got a house) however all the Courts including the Supreme Court rejected the release application holding that the landlord’s need was not bonafide. 8. In my opinion, even though tenant can neither rebut nor adduce evidence in rebuttal of landlord’s need, however, still if from the evidence adduced by the landlord himself it is clear that he has got no need, then inspite of the aforesaid explanation release application cannot be allowed. 9. Father of the landlord has died with whom landlord was residing in the house allotted to him (the father). After the death of the father, landlord has got full right to reside in the said house. 9. Father of the landlord has died with whom landlord was residing in the house allotted to him (the father). After the death of the father, landlord has got full right to reside in the said house. Landlord has got other brothers also, however, it has not been stated that they are either actually residing or intend to reside in the house allotted to the father. 10. In my opinion the most important circumstance is availability of house No. 469-B to the landlord. It was got vacated by him under Section 16 of the Act on the ground of bona fide need. Thereafter, it was let out. He could not show that any mortgage deed was executed by him in favour of his brother’s wife. Mortgage of immovable property without written and registered deed is not legally permissible. 11. Learned counsel for respondent has cited Smt. Kanta Devi Jain v. A.D.J., Dehradun, 1984(2) A.R.C. 245. In that very authority it has been held that landlord is not absolved from the burden of establishing his bona fide need and the explanation does not raise any presumption that the need of landlord is bona fide. 12. Accordingly, I am of the opinion that landlord completely failed to prove his bona fide need even after placing reliance upon the aforesaid explanation. 13. Accordingly, in my opinion, Prescribed Authority rightly rejected the release application and lower appellate Court wrongly reversed the said order. The writ petition is, therefore, allowed. Judgment and order passed by the appellate Court is set aside judgment and order passed by the Prescribed Authority is restored. 14. I have held in Khursheeda v. A.D.J., 2004(2) ARC 64 and H.M. Kichlu v. A.D.J., 2004(2) ARC 652 that while granting relief against eviction to the tenant in respect of building covered by Rent Control Act or while maintaining the said relief already granted by the Courts below, writ Court is empowered to enhance the rent to a reasonable extent. 15. In the aforesaid authority of Khursheeda (supra), I placed reliance upon the Supreme Court authority of M.V. Acharya v. State of Maharashtra, AIR 1998 SC 602 , where it was held that it was essential to provide for periodical enhancement of rent under the Rent Control Acts. 15. In the aforesaid authority of Khursheeda (supra), I placed reliance upon the Supreme Court authority of M.V. Acharya v. State of Maharashtra, AIR 1998 SC 602 , where it was held that it was essential to provide for periodical enhancement of rent under the Rent Control Acts. The Supreme Court has further held that frozen rents are giving rise to lawlessness and landlords out of frustration are approaching muscle man to get the premises vacated and Courts of law are becoming redundant in this sphere. This authority has recently been followed by the Supreme Court in Satyawati Sharma (dead) by L.Rs. v. Union of India and another, (2008) 5 SCC 287 : 2008 (71) ALR 499, part of Para-29 & Para-34 of which are quoted below : “29. It is trite to say that legislation which may be quite reasonable and rationale at the time of its enactment may with the lapse of time and/or due to change of circumstances become arbitrary, unreasonable and violative of the doctrine of equity and even if the validity of such legislation may have been upheld at a given point of time, the Court may, in subsequent litigation, strike down the same if it is found that the rationale of classification has become non-existent. 34. In Malpe Vishwanath Acharya and others v. State of Maharashtra and another (supra), the Court found that the criteria for determination and fixation of rent by freezing or by pegging down of rent as on 1.9.1940 or as on first date of letting, had, with the passage of time become irrational and arbitrary but did not strike down the same on the ground that extended period of Bombay Rent Act was coming to an end on 31.3.1998.” 16. Under U.P. Rent Control Act, there is no provision of enhancement of rent after October, 1972 [Except where landlord is public charitable or public religious institution (Section 9-A) or Government is tenant (Section 21(8)]. Under U.P. Rent Control Act, there is no provision of enhancement of rent after October, 1972 [Except where landlord is public charitable or public religious institution (Section 9-A) or Government is tenant (Section 21(8)]. In the aforesaid authority of Khursheeda, I have also placed reliance upon the authority of Supreme Court reported in AIR 1996 SC 2410 , Shangrila Food Products Ltd. v. Life Insurance Corporation of India, paragraph-11 of which is quoted below : “It is well-settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court, being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.” 17. Thereafter in Para-8 of the aforesaid authority of Khursheeda, I held as under : “Rent Control Act confers a reasonable advantage upon the tenant of protection against arbitrary eviction. Tenant under the Rent Control Act cannot be evicted except on specific grounds like bonafide need of the landlord, arrears of rent, subletting and material alteration etc. This advantage is also coupled with the advantage of immunity from enhancement of rent. The latter advantage cannot be said to be either reasonable or equitable. The Supreme Court in the aforesaid authority of S.F.P. v. L.I.C., AIR 1996 SC 2410 , has laid down that while granting relief to a party the writ Court can very well ask the said party to shed the unfair advantage which it gained under the impugned order. By slightly extending the said doctrine it may safely be held that while granting the reasonable advantage to the tenant conferred upon him by the Rent Control Act the tenant may be asked to shed the un-reasonable arbitrary advantage conferred upon him by the said Rent Control Act. By slightly extending the said doctrine it may safely be held that while granting the reasonable advantage to the tenant conferred upon him by the Rent Control Act the tenant may be asked to shed the un-reasonable arbitrary advantage conferred upon him by the said Rent Control Act. The writ Court therefore while granting or maintaining the relief against arbitrary ejectment to the tenant can very well ask the tenant to shed the unreasonable benefit of the Rent Control Act granted to him in the form of immunity against enhancement of rent, however inadequate the rent might be. Tenant will have to shed the undue advantage of immunity from enhancement of rent under the Rent Control Act to barter his protection from arbitrary eviction provided for by the said Act.” 18. Thereafter in H. M. Kitchlu v. A.D.J., 2004 (2) A.R.C. 652, I have held that the same principle of enhancement of rent to a reasonable extent may be made applicable while dismissing the writ petition of the landlord for the reason that by doing so writ Court approves the protection of Rent Control Act granted to the tenant by the Courts below. 19. Property in dispute is a house containing four rooms and other amenities situate in Bareilly which is quite an important city of Western Uttar Pradesh. Existing rent of Rs. 60/- per month is virtually as well actually no rent. It is rather ridiculous. Through interim order dated 9.1.07 eviction of the tenant was stayed on the ground that he paid rent @ Rs. 2150/- per month. On 4.7.08 when arguments in this writ petition were heard and judgment was reserved learned counsel for the tenant stated that rent at the said rate was continuously being paid by the tenant. 20. Accordingly rent of the house in dispute is enhanced to Rs. 2000/- per month w.e.f. October 2008 onward. No further amount as water tax etc. shall be payable over and above Rs. 2000 per month. ————