R.K.Gulati - (1.) THIS Petition under Article 226 of the Constitution of India is directed against the proceedings arising under Section 21 of the U. P. Urban Buildings ?? (Regulation of Letting, Rent and Eviction) Act, 1972 (for short "the Act"). The dispute relates to house no. 97, Jhanda Mohalla, Dehradun. The third respondent, Narendra Kumar is the owner and landlord and is in occupation of a part of the house. An accommodation of two small rooms on the ground floor is in the occupation of the tenant-petitioner. An application under Section 21 (1) (a) of the Act was moved by the respondent-landlord for getting released the accommodation under the tenancy of the tenant-petitioner, as the landlord required the same for his use and occupation. The release application was allowed by the Prescribed Authority. It found that the need of the landlord was bona fide and genuine, further the comparative hardship of the landlord was greater than that of the tenant. The Prescribed Authority also allowed two years' rent as compensation in favour of the tenant-petitioner payable by the landlord-respondent. An appeal against that order, at the instance of the petitioner, was dismissed by the appellate authority. The order passed by the courts below have been challenged in this petition.
(2.) I have heard learned counsel for the parties. At the outset, it may be mentioned that the learned counsel for the petitioner has not challenged the findings recorded in regard to the bona fide need and comparative hardship of the respondent-landlord. This Court is thus relieved of the burden of going into these questions. The solitary argument put forward on behalf of the petitioner was that the impugned orders are vitiated in law, for the courts below have not addressed themselves to the question, whether the need of the landlord could have been met by release of only a part of the accommodation as envisaged under Rule 16 (1) (d) of the Rules framed under the Act. Rule 16 (1) (d) reads : "(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." It is also not in dispute that the petitioner never put forward the plea based on Rule 16 (1) (d) either before the prescribed authority or before the appellate court. This question has been raised for the first time in these proceedings.
(3.) LEARNED counsel for the petitioner invited me to certain decisions of this Court where the view expressed is that it is the imperative duty of the court to take into account the applicability of Rule 16 (1) (d) aforesaid and whether such a plea was taken or not in the pleadings or canvassed before the court. In the face of decisions brought to my notice, I invited learned counsel for the parties to address the Court on the question whether the tenant's need would be adequately met by leaving with him a part of the accommodation under tenancy and the landlord's need would be served by releasing a part as contemplated in Rule 16 (1) (d) of the Rules. The only question for consideration, therefore, is whether the two rooms which are in the occupation of the tenant-petitioner, can be said to be more than absolutely necessary to meet, the requirement of the landlord. In order to appreciate the rival contentions, it is necessary to have a look at the size of the family of the landlord and also the accommodation at his disposal. So far as the family is concerned, it consists of eight members. These are :,the landlord and his/wife, a married brother and his wife, mother and father, another grown up younger brother and a grown up sister. Coming to the accommodation with the landlord, it consists of one room approximately 8'x8' on the ground floor, which was released from the tenancy of the petitioner in the year 1977, and on the first floor one room 8'xll', one improvised store 4'x8', one kitchen and some open space. It is admitted to the petitioner that out of this accommodation the room on the ground floor is used as a store room where the goods and articles received by the landlord on his marriage are lying dumped. During the course of argument it was also not disputed that a married sister of the landlord often visits him along with her husband.;