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2015 DIGILAW 2154 (ALL)

Vijay Sethi v. Anil Kumar Gupta

2015-07-28

SUNEET KUMAR

body2015
JUDGMENT Suneet Kumar, J. The petitioner is assailing the order dated 8 August 2014 passed by the Prescribed Authority allowing the release application under Section 21(1)(a) of Act No. XIII of 1972; the order dated 20 January 2015 passed by the Appellate Court rejecting the appeal thus, affirming the order of the Prescribed Authority. 2. The respondent/landlord set up need for release of the shop in question for establishing the business of first and second respondents, which was contested by the petitioner/tenant on the ground that the first and second respondents were engaged as co-owner in the business of the third and fourth respondents, the business was big enough to accommodate all of them. The tenant had no alternate shop suitable for setting up his business which has been running for the last 40 years which has a good-will. The Court below on considering the rival contentions and upon appreciating the material and evidence on record returned a finding of fact that the need set up by the respondent/landlord was bonafide and genuine, the comparative hardship was in favour of the respondent/landlord, consequently, the shop in dispute was released. 3. The sole submission advanced by the learned Senior Advocate appearing on behalf of the petitioner is that the courts below have not considered the part release of the disputed premises as contemplated under rule 16(1)(d) of the Rules framed under the Act No. XIII of 1972. It is, therefore, submitted that it was incumbent upon and the duty of the court below to have considered as to whether the landlord's need would have been satisfied by releasing part of the premises. It is admitted that the plea of Rule 16 was not raised before the courts below. It is submitted that even though the plea was not raised by the tenant still the court was bound to have considered the part release of the premises. In support of his submission, reliance has been placed upon Supreme Court judgments rendered in Smt. Raj Rani Mehrotra v. IInd Additional District Judge and other, 1980 ARC 311 and Dinesh Kumar v. Yusuf Ali, 2010 (2) ARC 723. Rule 16 (1) and (2) is extracted : "16 (1). In support of his submission, reliance has been placed upon Supreme Court judgments rendered in Smt. Raj Rani Mehrotra v. IInd Additional District Judge and other, 1980 ARC 311 and Dinesh Kumar v. Yusuf Ali, 2010 (2) ARC 723. Rule 16 (1) and (2) is extracted : "16 (1). 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 shall be construed strictly ; (b) where a residential building was let out at a 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 latter part of the building ; (e) where there are a number of tenants separately occupying a bloc of tenements and the landlord desires their eviction on ground of his personal need the prescribed authority shall, consider whether suitable alternative accommodation is likely to be available to such tenants : (f) where the landlord offers to the tenant alternative accommodation reasonably suitable to the needs of the tenant and his family the landlord's claim for release of the building under tenancy shall be construed liberally ; (g) where the landlord was engaged in any employment in the same city, municipality, notified area or town area in which the building is situate and was in occupation of other accommodation by reason of such employment or where the landlord is the wife or minor son or unmarried daughter of a person who was engaged in any profession, trade, calling or employment away from the city, municipality, notified area or town area within which the building is situate and was living with such persons, and by reason of the cessation of such engagement, the landlord needs the building for occupation by himself for residential purposes, such need shall ordinarily be deemed sufficient." "16 (2). While considering an application for release under Clause la) 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 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 the 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 ; (c) the greater the existing business of the landlords own, apart from the business proposed to be set up in the leased premises, the less the justification for allowing the application, and even if an application is allowed in such a case, the prescribed authority may on the application of the tenant impose the condition where the landlord has available with him other accommodation (whether subject to the Act or not) which is not suitable for his own proposed business but may serve the purpose of the tenant, that the landlord shall let out that accommodation to the tenant on a fair rent to be fixed by the prescribed authority ; (d) where a son or unmarried or widowed or divorced or judicially separated daughter or daughter of a male lineal descendant of the landlord has. after the building was originally let out. completed his or her technical education and is not employed in Government service, and wants to engage in self-employment, his or her need shall be given due consideration." 4. It is clear from the rule that there is a distinction made by the Legislature in framing the two sets of the Rules, Rule 16(1) is applicable to residential premises, whereas, Rule 16 (2) is applicable to non-residential premises. The application in the present case is for release of the non-residential accommodation, therefore, Rule 16 (2) would apply. A perusal of Rule 16 (2) will demonstrate that there is nothing like Sub-rule (1)(d) of Rule 16. The application in the present case is for release of the non-residential accommodation, therefore, Rule 16 (2) would apply. A perusal of Rule 16 (2) will demonstrate that there is nothing like Sub-rule (1)(d) of Rule 16. In this view of the matter, the argument is not available to the learned counsel for the petitioner, therefore, this Court declines to entertain the argument for the reason that the argument was not raised either before the Prescribed Authority, or before the appellate authority, therefore, it cannot be raised for the first time before the writ court. 5. In Smt. Raj Rani Mehrotra (supra), the Supreme Court was dealing with a case arising out of an application under Rule 16 (1) (d) of the Rules as would be clear from the judgment whereas the present application is governed by the provisions of Rule 16 (2) of the Rules. 6. This Court in Shital Prasad Jai v. Ist Additional District Judge, 2002 (2) ARC 255 , upon considering the decision rendered in Smt. Raj Rani Mehrotra (supra), held that Section 21 (1) (a) of the Act provides that the satisfaction of the Authority whether release of part of the accommodation will suffice the requirement of the landlord or not is a question of fact. The authority in its order clearly stated that the entire premises is being released, in the absence of any argument on behalf of the tenant to demonstrate that the part of the accommodation would suffice the need set up by the landlord, it would, therefore, be presumed that the Prescribed Authority was satisfied that the need of the landlord would be met by releasing the entire premises. 7. The Supreme Court in Ganga Devi v. District Judge, Nainital and other, 2008 (2) ARC 584 , observed that the provisions of the statutory rules must be interpreted so as to give effect to the object and purport of the Act which cannot be applied in a vaccum, as the statute requires comparison of the hardship of both the tenant as also the landlord. It is, therefore, not a case where Rule 16 has any application. The Court would not determine a question only on the basis of sympathy or sentiment. 8. It is, therefore, not a case where Rule 16 has any application. The Court would not determine a question only on the basis of sympathy or sentiment. 8. This Court in Rafi Ullah v. Om Hari and another, 2006 (4) ARC 469 held that the tenant had not claimed part-release before any court below, therefore, is estopped from raising this plea in the writ petition. Rule 16(1)(d) is mandatory for the Prescribed Authority to decide part-release in respect of residential premises. No such provision is there under Rule 16(2) which is applicable in respect of commercial buildings. 9. There is nothing on record to show that for the last seven years, the petitioner had made any effort to find an alternate premises for himself from where he could continue his business. No such material has been brought on record. Any subsequent development as regards thereto has neither been pleaded nor proved. 10. In such circumstances of the case, the Court in exercise of its jurisdiction under Article 226 of the Constitution of India is not inclined to interfere with the impugned order. 11. The writ petition being devoid of merit, is liable to be dismissed. 12. The writ petition is, accordingly, dismissed. 13. No order as to costs. 14. However, it is provided that in case the petitioner gives an undertaking on oath before the Court below that he shall vacate the premises in question and hand over the possession of the same peacefully to the respondent-landlord on or before 31 January 2016. The aforesaid undertaking on oath shall be given by the petitioner before the Court below within 10 days from today and the petitioner shall deposit the monthly rent of the premises in question before the Court below, as per the current rent fixed and shall continue to deposit the same by 7th of the each calendar month till the vacation of the premises in question, which amount may be permitted to be withdrawn by the respondent-landlord after due verification by the Court concerned. 15. It is made clear that in the event of default committed by the petitioner/tenant in any of the conditions, the order shall stand automatically vacated without reference to the Court.