K. N. Singh, J. - (1.) THE petitioner was a tenant of a shop of which the respondents are landlords. THE landlords made an application under Section 21 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972,for the release of the shop in the petitioner's occupation on the ground that they bona fide required the same for their personal use and occupation. THE petitioner contested the application and asserted that the landlords' need was not bona fide and genuine and that great hardship would be caused to him If he was evicted from the shop in dispute. THE Prescribed Authority by his order dated 25th June, 1975, allowed the landlords' application and directed the petitioner's eviction on the ground that the landlords' need was bona fide and genuine. THE petitioner preferred an appeal against that order. THE District Judge, Barabanki, by his order dated 20th May, 1976, dismissed the petitioner's appeal and affirmed the findings recorded by the Prescribed Authority. Aggrieved, the petitioner filed this petition under Article 226 of the Constitution challenging the validity of the aforesaid order*.
(2.) LEARNED counsel for the petitioner contended that the Prescribed' Authority as well as the District Judge both released the shop in question in landlords' favour in contravention of the statutory provisions of law as contained in the fourth proviso to Section 21 of the Act. He further contended that rule 16 framed under the Act prescribes factors which are required to be taken into account by the Prescribed Authority while considering the application under Section 21 of the Act for release of the accommodation in landlords' favour. One of the factors mentioned therein is the likely hardship which may be' caused to the tenant in case the landlords' application is allowed. It was further contended that neither the Prescribed Authority nor the District Judge considered this question and they released the shop in landlords' favour merely on the finding that the landlords' need was bona fide and genuine. I find considerable force in the contention. Rule 16 lays down that in considering an application under section 21 of the Act for release of the accommodation for the landlords' bona fide need, the Prescribed Authority shall take into account the likely hardship to the tenant from the grant of the application as against the likely hardship to the landlord on the refusal of the application and for that purpose the Prescribed Authority is required to have regard to the facts and circumstances as mentioned in the various clauses of the rule. The Prescribed Authority while considering the application for release in favour of the landlords was required to consider the facts and circumstances under Rule 16 of the rules. It was not open to the Prescribed Authority to release the accommodation in favour of the landlord without considering the likely hardship which would be caused to the tenant. Rule 16 was declared ultra vires by a Full Bench of this court on the ground that the Act did not confer any power on the State Government to frame any such rule. The legislature thereupon stepped in and enacted U. P. Act 28 of 1976 by adding the fourth proviso to section 21 which runs as under :- "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 a gainst 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." The legislature has, by means of the above proviso, engrafted the provisions of Rule 16 itself into the Act. Under the aforesaid proviso, the Prescribed Authority is under a mandatory duty to consider the likely hardship which may be caused to the tenant on the grant of landlord's application. If he fails to do that the order would be in contravention of the statutory provisions as contained in the proviso to Section 21 of the Act. It is true that the fourth proviso to Section 21 was not in force on the date the Prescribed Authority and the District Judge considered the landlords' application, but this does not change the situation. Rule 16 was already in force which required the Prescribed Authority and the District Judge to compare the needs and to consider the likely hardship which may be caused to the tenant on the grant of landlords' application. Moreover, under Section 26 (5) of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) (Amendment) Act, 1976, the legislature has laid down that notwithstanding any judgment, decree or order of any court or authority, the provisions of Rule 16 shall be deemed to have been made under the provisions of the principal Act as amended by the Amending Act as if the Amending Act were in force on all material dates. This provision therefore gives retrospective effect to the provisions of the Amending Act including the fourth proviso to section 21 and rule 16 notwithstanding any judgment, or decree or order of any court. In the circumstances Rule 16 and the fourth proviso both continued to be in force at the relevant time and the order of the Prescribed Authority and the District Judge must be in accordance with the aforesaid provisions.
(3.) IN the instant case the Prescribed Authority as well as the District Judge considered the question of bona fide need of the landlords at length. They have recorded a finding that the need of the landlords was bona fide and genuine but none of them compared the need of the landlords with that of the tenant, nor they considered the question of the likely hardship that would be caused to the tenant on the grant of landlords' application. IN the circumstances the impugned order of release was passed in contravention of the provisions contained in the Act and the Rules which are not sustainable in law. In the result, I allow the petition and quash the orders of the District Judge dated 20th May, 1976, and of the Prescribed Authority dated 25th June, 1975. The petitioner Is entitled to his costs. Petition allowed.;