S C. Verma, J. - (1.) THE dispute in the present writ petition relates to premises No. 127/LIG/2 Block 'W Kidwai Nagar, Kanpur which has been released in favour of the landlord by the impugned orders dated 5-11-1986 and 23-4-1988 passed by the Prescribed Authority and the appellate authority, VII the Additional District Judge, Kanpur respectively.
(2.) THE respondent no. 3 filed release application under Section 21 (1) (a) of U. P. Act XIII of 1972, hereinafter referred to as 'the Act', on the ground that he has retired from Government service on 28-2-1982 and he wants to settle at Kanpur and needs the disputed accommodation for his residence. The application was contested by the petitioner tenant and it has been alleged that the respondent no. 3, after retirement, has settled at Lucknow where he was practising as an Advocate and residing in House No. 9-A, Rakabganj, Lucknow with his family. The wife of respondent no. 3 who is an officer in the Education Department has also been allotted a house in Mahanagar locality. The sole motive of getting the house released was to sell it for high consideration. The Prescribed Authority vide order dated 5-11-1986 held that the need of the landlord is bonafide and genuine and on comparative hardship it was also found that the landlord will be put to greater hardship. The findings of fact recorded by the Prescribed Authority were upheld 'by the learned VII Additional District Judge, Kanpur by judgment dated 23-4-1988.
(3.) IN the present case, the only point argued before me by the learned counsel for the petitioner Sri S. N. Verma, Senior Counsel, was that the courts below did not consider the case of the parties as provided under Rule 16 (1) (d) of the Rules framed under the Act. According to the learned counsel for the petitioner, even if the plea was not raised by the tenant, it was the duty of the court to take into account the requirements laid down under the aforesaid Rule. The learned counsel, in support of his proposition, relied on the case Smt. Rajrani Mehrotra v. II Additional District Judge, 1980 ARC 311 (SC). Sri Mohd. Sher Siddiqui v. Ill Addl. District Judge, Aligarh, 1982 (1) ARC 305 and Munni Devi v. Additional District Judge, 1985 (l) ARC 219. It is no doubt correct that it was the duty of the Courts to consider the question of the needs of the landlord and tenant as required to be considered under Rule 16 (1) (d) of the Rules even though a plea in this regard has not been taken in the written statement but in my opinion, whenever such a plea is raised before any Court, the matter should be examined on the basis of the materia] on record. This would be necessary because it may be possible that even though this plea is raised but no benefit under the provisions of the Rule could be given. In some cases, the accommodation may not be such which could be apportioned or in some case even if the entire accommodation is released, it may not be sufficient to the requirement of the landlord or may be just sufficient.;