Suneet Kumar, J. - (1.) 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 goodwill. 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 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.";