Full Judgment
Sudhir Narain, J.
1. This writ petition is directed against the order of the prescribed authority, Budaun dated 30.11.1992 allowing the release application filed by the landlord-respondent No. 3 under Section 21 (1) (a) of U. P. Urban Building (Regulation of Letting, Rent and Eviction) Act. 1972 (in short the Act) and the order of the Appellate Authority, respondent No. 1, dismissing the appeal against the said order on 30.5.1994.
2. Briefly stated the facts are that Respondent No. 3 purchased the disputed shop by a registered sale deed on 15.6.1981 from its erstwhile owner Sri Vinay Krishna Rastogi. The petitioner was its tenant-Respondent No. 3 gave a notice to him on 18.3.1985 that he requires the accommodation bona fide for carrying on business and the tenant-petitioner should vacate the same. The petitioner did not vacate the disputed shop. Respondent No. 3 filed an application under Section 21 (1) (a) of the Act on 7.10.1985 for release of the shop in question on the allegation that his family consisted of himself, his wife, widowed mother and two grown up children. He was carrying on gold ornaments' business at his residence for which he was holding a valid licence under the provisions of Gold Control Act. The price of gold had enormously increased and, therefore, customers did not visit his residence for the purposes of manufacture of gold ornaments and his work of manufacturing gold ornaments started decreasing day by day. He had no other shop to carry on his business and required the shop in question for carrying on the business. The petitioner contested the application and it was denied that the landlord required the shop in question to carry on the business. It was pleaded that he could continue his manufacturing work of gold ornaments at his residence. The petitioner was carrying on business of Sutli, rope, Ban etc. and had earned goodwill and there was no other shop available to him in thevicinity of the shop in question. The prescribed authority, on consideration of the evidence on the record, came to the conclusion that the need of respondent No. 3 was bona fide and genuine and he will suffer greater hardship in the case his application is rejected. The petitioner preferred an appeal and his appeal was dismissed on 30.5.1994 by respondent No. 1. The petitioner has challenged these orders in the present writ petition.
3. Learned counsel for thepetitioner has not been able to show that the finding on the question of bona fide need is perverse or suffers from any illegality. Both the authorities have recorded concurrent findings that respondent No. 3 requires the shop in question for carrying on the business of sale of gold ornaments in the shop in question and he has no other shop except the disputed one which he had purchased by registered sale deed on 15th June, 1981.
4. Sri. K. M. Dayal, learned counsel for the petitioner, suggested that the disputed shop be partitioned and a portion of the shop be released in favour of respondent No. 3. The petitioner had not taken this plea in his written statement before the prescribed authority nor this point was urged before the prescribed authority. In the appeal also, the petitioner did not urge that only a part of the shop in question be released in favour of the landlord which may satisfy his need to carry on the business of sale and manufacture of gold ornaments. In absence of any such plea or material to show that a part of the shop in question will satisfy the need of the landlord, the petitioner is not justified to raise this point for the first time in the writ petition. Learned counsel for the petitioner vehemently contended that the principles laid down under Rule 16 (1) (d) of the Rules framed under U. P. Urban Buildings (Regulations of Letting, Rent and Eviction) Rules, 1972 should be made applicable in respect of non-residential buildings as well. He has placed reliance upon the decisionSmt. Raj Rani Mehrotra v. IInd Additional District Judge and others, 1980 ARC 311, wherein the Hon'ble Supreme Court has observed that even though the tenant had not taken any plea that the part of the building under the tenancy, if released, would satisfy the need of the landlord but the Court held that it is the duty of the Court to examine whether the need will be met by releasing a part of the building as provided under Rule 16 (1) (d). It was emphasised that under Rule 16 (1) (d) of the rules, it is the duty of the Court to take Into account that aspect while considering the requirement of personal occupation of the landlord even though such plea was not taken before the lower authorities. In view of this decision whenever the matter has been raised regarding applicability of Rule 16 (1) (d), this Court examined the matter itself or remanded the matter to the lower authorities whenever it found that the matter requires more investigation on facts vide Pyare Lal v. XIIth Additional District Judge, Allahabad and others.1990 ARC 157 ; Wali Mohammad v. IInd Additional District Judge, Kanpur and others, 1990 (1) ARC 579.
5. Rule 16
(1) (d) does not apply to commercial buildings. The prescribed authority is under a duty to consider under Rule 16
(1) (d) whether releasing a part of the disputed building will suffice the need of the landlord but similar provision has not been made under sub-rule
(2) of Rule 16 which lays down the guidelines in respect of a building let out for the purposes of business. In Smt. Chanda Devi and another v. XIIth Additional District Judge, Kanpur and others. 1983 (i) ARC 825, Hon'ble R. M. Sahai, J. (as he then was) held that Rule 16
(1) (d) does not apply to non-residential buildings let out for the purposes of any business and repelled the contention raised on behalf of the petitioner that the guidelines laid down under Rule 16
(1) (d) should also be taken into account while considering the guidelines laid down in sub-rule
(2) of Rule
16. The Hon'ble Supreme Court in Bhagwan Das v. Smt. Jiley Kaur and others,1991
(1) ARC 377, held Rule 16
(1) ofthe rules cannot be placed reliance in respect of an accommodation let out for the purposes of business as sub-rule
(1) of Rule 16 only deals with an accommodation let out for residential purposes and such rule is not relevant for non-residential accommodations. This view has been followed by this Court in Niranjan Prasad v. District Judge, Dehradun and others, 1991 ARC 129, wherein it was contended that the High Court must examine whether a part of the building can be released for business purposes placing reliance upon the decision of Smt. Raj Rant (supra) but it was held that in respect of non-residential building the sub-rule 16
(1) (d) being not applicable. If the plea that a part of the accommodation will suffice the need of landlord, is not raised, the Court is not required to record any finding itself. In Ramji Lal v. 1st Additional District Judge. Muzaffarnagar and others, 1992
(1) ARC 473, the Court repelled the contention of the petitioner to consider the plea regarding release of a part of non-residential building. This Court did not permit to raise the plea for the first time in the High Court regarding release of a part of non-residential accommodation if the plea was not raised before the authorities below and no material evidence was placed vide Magnanand Bhatt v. Additional District Judge, Dehradun and others, 1992 ARC 27 ; Oil and Oil Seeds . Exchange, Kanpur v. XIIth Additional District Judge, Kanpur Nagar and others, 1995 (i) ARC 171 ; M/s. Carona Ltd., Kanpur Nagar v. Ist Additional District Judge, Kanpur Nagar and others, 1996
(2) ARC 605.
6. Learned counsel for the petitioner submitted that even if Rule 16 (1) (d) is not applicable in respect of non-residential building, still the Prescribed Authority is not bound to release the entire building under Section 21 (1) (a) of the Act. He placed reliance upon the decision Firm M/s. Shankar Lal Durga Prasad v. IVth Additional District Judge, Meerut and others, 1981 ARC 229, wherein the lower authorities had released only a part of the non-residential accommodation. Thelandlord contended that Rule 16 (1) (d) was not applicable in respect of non-residential building and, therefore, the entire accommodation should have been released. The Court repelled the contention holding that there is no prohibition under the Act that a part of the accommodation cannot be released in respect of requirement for business. In this case, the appellate authority had released only a part of the accommodation on the basis of material evidence on the record which was upheld by this Court.
7. Similarly in Jal Devi and others v. IVth Additional District Judge, Etawah and others. 1993 (1) ARC 510, the Court held that Rule 16 (1) (d) of the Rules is not applicable in respect of non-residential building but at the same time Section 21 (1) of the Act confers plenary power on the prescribed authority to release any building under the tenancy or any specified part but in that respect there must be pleading and evidence. The Court observed as under :
'Thus from the aforesaid legal provisions it is clear that while considering the release application with regard to residential accommodation, the prescribed authority is under the legal obligation to have regard to the provisions contained under Rule 16 (1) (d) of the rules. However, same cannot be said in respect of the non-residential building then it would be left for the parties to plead and set up a case that for specified need of the landlord, release of only part of the building is necessary and the whole building is not required by him. If such a plea is raised then only the prescribed authority and the appellate authority may be required to consider for release of the part of the commercial accommodation.'
8. In Ram Chandra Rastogi v. Smt. Rewati Devt and another, 1994 (1) ARC 225, the authorities below had released only a part of non-residential building and the contention raised that the prescribed authority had no jurisdiction torelease part of the accommodation for non-residential purposes was repelled.
9. In respect of a residential building if an application is filed under Section 21 (1) (a) for release of the building by a landlord on the ground that such building is bona fide required by him, the prescribed authority is under a duty to examine as to whether landlord's need will be served by releasing a part of such building and the tenant's need would be adequately met by leaving with him another part of the building, keeping in view Rule 16 (1) (d) of the Rules, even though the parties had not taken such plea. If such a plea is taken for the first time in the High Court, even though not raised before the authorities below, the High Court is to examine it on the material placed before it. If the Court is not able to form an opinion on the material placed before it, the case may be remanded to the lower authorities to consider such aspect.
10. The above principle, that even though the parties have not raised the plea that releasing a part of the building will satisfy the need of the landlord, must be considered and decided by the authorities below and when matter is raised for the first time in High Court, it is under a duty to consider this aspect, is not applicable in respect of non-residential building. The prescribed authority may order eviction of a tenant from a part of building under his tenancy under Section 21 (1) of the Act itself which provides that the prescribed authority may order eviction of a tenant from the building under his tenancy or any specified part thereof. It is under this provision that the prescribed authority can examine as to whether releasing a part of non-residential accommodation can satisfy the need of the landlord but this aspect can be examined only when parties raise such a plea and adduce material evidence in support of their contention. This Court is not under a duty to examine this aspect if the petitioner raises it for the first time in the High Court. In the decisionsreferred to above whenever the matter was in respect of non-residential accommodation, the Court did not permit to raise the plea for the first time that the need of the landlord will be met by releasing a part of the accommodation if it was not raised before the lower authorities and no material was produced in support of their contention.
11. I have, however, in the interest of justice, examined the matter as to whether a part of the shop in question can be released in favour of the landlord and leaving some of its part to the tenant-petitioner. The release application was field in the year 1985 on the allegation that respondent No. 3 requires the shop for carrying on business of sale and manufacture of gold ornaments. The petitioner did not raise any plea in his written statement that part of the accommodation be released in favour of the landlord and that will satisfy his need. in paragraph 10 of the written statement, only this much was stated that dimension of the shop was 39 feet east west and 11 feet north south. A supplementary rejoinder-affidavit has been filed by the petitioner in which a report of the Engineer Architect Sri S. P. Gupta has been filed indicating the dimension of the shop as 35 feet 6 inches north, 35 feet 6 inches south, 7 feet 9 inches east and 9 feet 4 inches west. There is a map attached to It. The road is opening towards west and towards the road the total width is 9 feet 6 inches. The length of the shop is 35 feet 6 inches. The suggestion given by the petitioner is that the front portion towards the road may be released in favour of the landlord and towards the east a part of the shop about 10 feet may be left to the tenant. The tenant will open the door towards north opening towards a Gali. Admittedly on this portion, there is a staircase leading to the first floor. There is a dispute as to whether the staircase portion is under the tenancy of the petitioner or not. The petitioner has stated that he has constructed the staircase and the major portion of the staircase leading to the first floor has fallen down.Admittedly the petitioner is not tenant of the first floor. He is carrying on business of sale of Sutli, rope, Ban etc. Respondent No. 3, in the shop, is to manufacture and sell the gold ornaments. The partition of the shop and opening another door may create many hurdles in respect of security, going upstairs etc. In my view the releasing of a part approximately 8 feet x 10 feet including the area of staircase will also not adequately suffice the need for sale of Sulti, rope, Ban etc.
12. In view of the above discussion I do not find any merit in the writ petition. It is accordingly dismissed. The petitioner is, however, granted six months time to vacate the accommodation in question provided he gives a written undertaking on affidavit before the prescribed authority, respondent No. 2, within two weeks from today that he will vacate the disputed accommodation within the lime granted by this Court and will hand over its peaceful possession to the landlord-respondent.
13. The parties shall, however, bear their own costs.