Shishir Kumar - (1.) I have heard Sri Vishnu Gupta, learned counsel for petitioners and Sri A. S. Diwakar, learned counsel for respondents.
(2.) THE present writ petition has been filed for quashing the orders dated 30.9.2008 passed by learned Additional District Judge, Court No. 1, Allahabad and order dated 17.7.2001 passed by Additional Chief Judicial Magistrate, Room No. 6/Prescribed Authority, Allahabad in P. A. Case No. 15 of 2000. Respondents being landlords filed an application for release of House No. 95, Mahabiran Lane, Allahabad in dispute under Section 21 (1) (a) of the Act. The application was allowed by prescribed authority vide its order dated 17.7.2001. Petitioners aggrieved by aforesaid order, filed an appeal. Appeal too has been dismissed. Aggrieved by aforesaid order, petitioners have filed present writ petition. One of the main ground raised by petitioners before this Court is regarding non-consideration of mandatory provision of Rule 16 (d) of the Rules which is being reproduced below : "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 other part of the building."
(3.) SRI Vishnu Gupta, learned counsel for petitioners submits that proviso (d) is held to be mandatory and that has to be considered by prescribed authority or appellate authority regarding part of release of accommodation to satisfy the need of landlord. A copy of ground has been filed by petitioner showing therein that this ground was taken and argued before the appellate authority but appellate authority has not considered and has not recorded any finding to this effect whether if part of the accommodation in possession of petitioner is released. The same will satisfy the need of respondents-landlords. The court below was obliged to record a finding in view of judgment in Nand Kishore Awasthi v. Additional District Judge, Kanpur Nagar and others, 2006 (3) ARC 614 : 2007 (1) AWC 173. Relying upon aforesaid judgment, learned counsel for petitioners submits that this Court relying upon a judgment of the Apex Court in Smt. Raj Rani Mehrotra v. IInd Additional District Judge and others, 1980 ARC 311 (SC), has held as under : "1. We have heard counsel for the parties. On going through the judgments of the lower authorities also of the High Court we are satisfied that the issue arising under Rule 16 (1) (d) of the Rules framed under the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972, as to whether the landlord's need could have been satisfied by releasing only a part of the premises have not been gone into or considered by any of them. When the plea under the said Rule was passed on behalf of the tenant in the High Court. The High Court rejected it on the sole ground that no such plea has been raised by Court. The High Court rejected it on the sole ground that no such plea has been raised by the tenant in his written statement and as such it could not be considered. It is clear that under the relevant rule it is a duty of the Court to take into account that aspect while considering the requirements of personal occupation of the landlord, and, therefore, this issue will have to be remanded to the High Court. 2. We accordingly set aside the order of the High Court dismissing the writ petition and remand the matter back to it for determination of the aforesaid issue. If necessary, the parties may have to be allowed to lead fresh evidence, if the High Court is unable to decide it on the materials on record. If evidence becomes necessary, the High Court may in its turn remand the matter back to the trial court, which will give an opportunity to both the parties to lead fresh evidences." Taking into consideration of aforesaid fact, this Court has allowed the writ petition and remanded the matter to appellate authority only for determination of aforesaid issue.;