Amitav Banerji, J. - (1.) This writ petition is directed against an order of the First Additional District Judge, Allahabad, dated 30th March, 1974, who passed an order under section 22 of the U. P. Urban Buildings (Regulations of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act) allowing the appeal against the order of the Prescribed Authority, as well as the application of the landlord for the release of the accommodation in dispute under section 21 of the Act. The Prescribed Authority after a comparison of the respective needs of the parties had held that the hardship of the tenant would be greater than that of the landlord and, therefore, rejected the application for the release of the accommodation. The appellate authority, on the other hand, held that the provisions of Explanation (1) to sub-section (1) of section 21 of the Act were fully applicable and as such the application of the landlord for the release of the accommodation in dispute was liable to he allowed. He further held that in view of the provisions of Explanation (iv) to section 21, as it stood before its amendment by U. P. Act No. 28 of 1976, the landlord being a resident of a portion of of the building, his need for the disputed accommodation was fully established.
(2.) The writ petition raises a number of contentions and even alleges that the record of the case before the Prescribed Authority was interpolated in order that the provisions of the Explanation (iv) to sub-section (1) of section 21 of the Act could be availed of by the landlord. In my opinion. it is not necessary to go into this matter, for the Explanation (iv) to section 21(1) of the Act is no longer on the statute book and has been deleted by the U.P. Act No. 28 of 1976. In view of the aforesaid amendment, the landlord is not entitled to the benefit of Explanation (iv) to section 21(1) of the Act. The amending Act has made a new provision which is the fourth proviso to sub-section (1) of section 21 of the Act, which reads as follows:- "Provided also that the Prescribed Authority shall except in cases provided for in the Explanation take into account the likely hardship to the tenant from the grant of the application as against the likely hardship to the landlord from the refusal of the application and for that purpose shall have regard to such factors as may be prescribed." It is, therefore, clear that unless the case comes under the Explanation (i) or (iii), the Prescribed Authority has to take into consideration in each case the likely hardship of the parties from the grant or the refusal of the application. It is also clear that the provisions of rule 16 of the Rules made under the Act have to be taken into consideration. A perusal of the order of the appellate authority shows that he has not taken into consideration the likely hardship of the tenant if he is evicted from the accommodation in dispute. There is, as matter of fact, no discussion in regard to hardship of the parties. The fourth proviso was, inserted by the U. P. Act 28 of 1976, and it has also been made clear that it would be deemed to always have been substituted. In view of this provision, it is, therefore, incumbent on the Appellate Authority to consider the likely hardship of the parties in case the application was to be allowed or refused, as the case may be. The Prescribed Authority has also to take into consideration the provisions of rule 16 in this respect. The Prescribed Authority has not considered this aspect of the matter. It has entirely placed reliance on the Explanation (iv) to sub-section (1) of section 21 of the Act, which has now been deleted.
(3.) It was contended that even otherwise the order of the appellate authority could be sustained on the ground that the provision of Explanation (i) to sub-section (1) of section 21 of the Act was applicable. It was stated that the tenant had taken a house at 298-Kyedganj, Allahabad and living there along with his family. It was urged that since he had an alternative accommodation where he was living, the order of release in favour of the landlord could be passed without taking into consideration the fourth proviso to sub-section (1) of section 21 of the Act. In my opinion, before the Explanation (i) to sub-section (1) of section 21 of the Act is applicable it has to he shown that "the tenant or any member of his family who has been normally residing with him or his wholly dependant on him, has built or otherwise acquired in a vacant state or has got vacated after acquisition a residential building in the same city. "In such a case no objection of the tenant against an application under sub-section of section 21 will be entertained. The words or has otherwise acquired in a vacant state or has got vacated after acquisition" in the Explanation (1) refer to the acquisition by the tenant or by any member of his family of a building whether private or public. It may be owned by the tenant or by a member of his family, or it may have been taken or rent by the tenant or by a member of his family. Similarly where a tenant has come in possession of a public building as an allottee or a tenant or a licensee even in such state of affairs he would be deemed to have acquired a building. All that, therefore, is necessary to be established is that the tenant or a member of his family has acquired another building in the same city whether as owner or as a tenant or as an allottee or as a licensee. This fact has to be clearly established.;