Unknown vs Sudha Prakash And Another
2021 Latest Caselaw 374 UK

     IN THE HIGH COURT OF UTTARAKHAND
                AT NAINITAL
      ON THE 22nd DAY OF FEBRUARY, 2021
                   BEFORE :
THE HON'BLE SHRI JUSTICE SHARAD KUMAR SHARMA

         WRIT PETITION (M/S) NO. 519 OF 2019

BETWEEN :
Parul Prakash (female) aged about 48 years
Daughter of Late Shri Satya Prakash
R/O Durga Bhawan, Sister Bazar,
Landhour Cantt.
Mussoorie,
District Dehradun (Uttarakhand)
                                  ....Petitioner/Tenant.
(By Shri Neeraj Garg, Advocate)

AND :

1.     Anil Prakash
       S/O Mr. Inder Prakash
       R/O Sister's Bazar,
       Landhour Cantt., Bussoorie
       District Dehradun (Uttarakhand)

2.     Sunil Prakash
       S/O Mr. Inder Prakash
       R/O Sister's Bazar,
       Landhour Cantt., Mussoorie
       District Dehradun (Uttarakhand)
                               ....Respondents/Landlords.
       (By Shri D.S. Patni, Advocate)

                              ORDER

This is a tenant's Writ Petition, which has been preferred, by invoking Article 227 of the Constitution of India, as against the concurrent judgments, which has been rendered by both the Courts below in a proceedings, which were held under Section 21 (1) (a) of Act No. 13 of 1972, and as a consequence thereto, the release application, which was preferred by the respondents/landlord, seeking

release of the tenement, in question, which happens to be a residential accommodation, has been allowed, and the petitioner/tenant, has been directed to vacate the premises and to hand over the vacant and peaceful possession of it, to the respondents/landlord, within 30 days from the date of the judgment of the Prescribed Authority.

2. Though this Court should have avoided to make this remark, but owning to the deliberate and intentional, modus operandi, which is normally adopted, which has now, become a regular feature, almost in most of the cases, which are filed by the learned counsel for the petitioner, this Court is constraint to make certain observations, which has been invariably found, to be followed by the learned Counsel, basically intended so as to mislead the Court or to avoid an adjudication of the case on merits and to pose the difficulty to the Court, at the time of hearing of the Writ Petition itself at admission stage, itself, by putting uncalled for documents, which are not even relevant, including the copy of the citation/judgments, on which he wants to rely, as part of the records of the Writ Petition, making the records of the Writ Petition, running into several volumes, and that too in a writ jurisdiction under Article 227 of the Constitution of India, which is arising of the concurrent judgments.

3. This has been a clear and a consistent device, and a tactics which has been adopted by the learned counsel for the petitioner, by placing voluminous records in the Writ Petition, including the

copies of precedent/ judgments, on which, the reliance has been placed by the learned counsel for the petitioner, which in the instant case happens to be about 20 judgments, which the petitioner's counsel, contends to rely on, in support of his case, as against the concurrent finding of facts, which has been recorded by both the Courts, below and that too in a summary proceedings, which were held, under Section

reasons to be recorded hereinafter, it could be apparently inferred, that even most of the judgments, on which, reliance has been made, are not even relevant for the purposes of consideration of the case, and even they may not be applicable under the facts and circumstances of the present case.

4. This attitude, adopted cannot be ruled out to be a professional and a strategic device, which is being adopted, so that Court may at the stage of hearing for admission of writ, due to paucity of time, would be constraint to admit, even the Writ Petitions, which are arising from concurrent judgments, in a summary rent control proceedings, where grant of interim order would become inevitable during its pendency, besides being taxing on the litigant also, to meet the artificially escalated expenses too, and this strategy is not an isolated example, but rather it is a regular feature, which had been adopted by the Counsel, as a routine in most of the cases, which are being instituted from his Chamber. This methodology is being deliberately adopted with a premonition, that if judgment is put to challenge before a superior platform, he may have his

argument protected that the judgment relied by him, and which were on record, before the Court, were not considered by the Court, and thus the judgment is a consequence of non application of mind, by the High Court.

FACTS

5. The present Writ Petition has been preferred by the tenant/petitioner, being aggrieved against the judgments dated 25.11.2016 and 12.02.2019, which had been rendered by the Court of Prescribed Authority / Civil Judge (Senior Division), Dehradun, in P.A. Case No. 04 of 2014, Saraswati Jain and another Vs. Sudha Prakash and another, and Appellate Court's judgment, which had been rendered by the Court of 5th Additional District Judge, Dehradun, in Rent Control Appeal No. 22 of 2016, Sudha Prakash Agarwal Vs. Saraswati Jain, respectively, whereby, the release application, which was preferred by the landlord/respondent, has been concurrently allowed, by both the Courts below. Hence, the present Writ Petition has been preferred on 20.02.2019, for the following reliefs :

"It is, therefore, most respectfully prayed that this Hon'ble High Court may graciously be pleased to:-

a) Issue a writ, order or direction in the nature of Certiorari quashing the impugned judgment and order dated 12.02.2019 passed by learned 5th Additional District Judge, Dehradun, in Rent Control Appeal No. 22 of 2016, Smt. Sudha Prakash Vs. Smt. Saraswati Jain (Annexure No. 1 to the writ petition).

b) Issue a writ, order or direction in the nature of Certiorari quashing the impugned order dated 25.11.2016 passed by learned Prescribed Authority/Civil Judge (Sr. Div.) Dehradun, in PA Case No. 04 of 2014, Smt. Saraswati Jain Vs. Smt. Sudha Prakash (Annexure No. 2 to the writ petition).

c) Any other order or direction, which this Hon'ble High Court may deem fit and proper in the facts and circumstances of the case, be issued.

d) To award cost of the petition to the Petitioners."

6. The respondents/landlord, herein, on 23rd January, 2014, had preferred a release application, which was numbered as P.A. Case No. 4 of 2014, Smt. Saraswati Jain and another Vs. Smt. Sudha Prakash and another. Precisely, the case, which has been pleaded by the landlord in the release application, was that the tenement, in question, which constitutes to be the residential property and is called as Sisters 1 and 2, which is situated on Survey No. 88 and 89, it falls to be part of the Grant No. 158/159, Landhour Cantt., Mussoorie, District Dehradun, which is also commonly called as "Durga Bhawan" (hereinafter to be referred as the disputed tenement). The details of which are given hereunder :-

"SCHEDULE OF PROPERTY

All that three rooms, kitchen, bathroom, varandha on the first floor of the property known as "Sister" no. 1 and 2, the survey no of which are 88 and 89 and grant no. 158 and 159 situated at Landhour Cantt. Mussoorie now also known as Durga Bhawan bounded and butted as under:-

North : Remaining portion of Durga Bhawan and thereafter shop of Shri Inder Prakash South :Remaining portion of Durga Bahawan of the plaintiff East : Scott Burn Estate on the ground floor.

     West :        Public Road"


7.         According       to       the          case        of         the

tenant/petitioner, she had pleaded that the disputed tenement, in question, which happens to be a residential accommodation, it carries a rent of Rs.1,000/- per annum and it constitutes to be having, an accommodation of three rooms, bathroom, kitchen, veranda, which is situated on the first floor of the disputed property, in question, i.e. Durga Bhawan, as detailed above.

8. The case of the landlord/respondent, as pleaded, in the release application, was that the said tenement, was exclusively let out to the petitioner/tenant, to be utilized, exclusively and limited only for the residential purposes, but with the passage of time and that too without there being a prior written consent having been taken from the landlord/respondent, as per Section 20 of the Act No. 13 of 1972, the petitioner/tenant, since had started using the said tenement for commercial activities, which happens to be an activity other than for what the tenancy was created, and hence, it was also one of the grounds, which was taken in the release application, that since the user of the property, since has been unilaterally changed from the very purpose for which it was let out, and that itself was a sufficient ground for evicting the petitioner/tenant from the disputed tenement, in question, as per the provisions and the stipulation contained under the Act No. 13 of 1972, which contemplates it to be, as one of the grounds for

release of the building let out, on which, the provisions of the Act No. 13 of 1972, applies.

9. The bona fide need, as was expressed by the landlord/respondent, in the release application, was that the applicant No.2, who is the son of applicant No.1, was said to be initially residing out of India, and was in service abroad, but later on, he had shifted back to India and had started residing in the same house of the parents; but on account of there being shortage of space, and hence there was the need of additional residential space, which was inevitable and imminent, hence, the tenement, in question, was required by the landlord/respondent, in order to accommodate the applicant No.2, who now wants to settle in India. Apart from it, the another bona fide need, which was expressed by the landlord/respondent, in the release application, was that the elder brother of applicant No.2, i.e. Anil Prakash, who is married, since is also already residing with his family, in the same accommodation, hence there is an acute shortage of space and all the family members are staying in a cramped situation, and thus they wanted the disputed tenement, in question, to be released in order to comfortably accommodate themselves in the tenement, in question, so as to meet their families emergent residential need. Besides the above, the need which was also expressed by the landlord/respondent, has also in his pleadings, submitted that the grand daughter of applicant No.1 and daughter of applicant No.2, who has also now been transferred to India and had now permanently settled and shifted to Delhi, often

now and then she visits the place of abode of the landlord/respondent and on her arrival there, they further feel the shortage of space more even to accommodate her too, with other family member.

10. The respondent/landlord, to the Writ Petition, have in their release application particularly, the pleading as has been raised in para 7, have specifically pleaded that the petitioner/tenant had occupied a property of her own, under her exclusive ownership bearing Municipal No. 60, Landhour Bazar, Mussoorie, District Dehradun, and the same is lying in a vacant state and is in an exclusive possession of the tenant/petitioner and since the tenant/petitioner is already occupying their independent property in the Landhour bazaar, i.e. within the same municipal area, (i.e. area of a local body), their need in terms of the proviso contained under Section 21 (1) (a) of the Act, would not be legally treated as to be a bona fide need, because they themselves have got their own double storied accommodation, under their exclusive ownership in Landhour Bazar itself, where they can easily shift their family, and accommodate themselves.

11. The applicant No.1, i.e. Smt. Saraswati Jain, met with the sad demise on 15.02.2014, later on substitution was made by the learned Court of Prescribed Authority, of the heirs of deceased applicant No.1, vide its order dated 15.04.2014.

12. This release application as was preferred on 23rd January, 2014, it was opposed by the

petitioner/tenant by filing a written statement, i.e. paper No.14-Ka, on 11th October, 2014, and the following grounds were primarily taken by them to oppose the release application :-

I. It was that, since their tenancy, happens to be a long standing tenancy for quite a sufficient long time, as their ancestors too, were also residing in the same disputed tenement, admittedly, in the capacity of tenant for the last over 50 years, their need happens to be comparatively more bona fide and genuine, as compared to that of the landlord/respondents.

II. In the written statement, it was further pleaded that the tenant/petitioner, had got no other alternative residential accommodation available with them, where they could reside conveniently and peacefully and, hence, submitted that on account of non availability of an another alternative accommodation, their need is comparatively more bona fide and hard pressing as compared to that of the landlord/respondents.

III. However, the petitioner/tenant, in her pleadings had admitted the fact that the respondents happens to be the landlord of the tenanted property after its purchase in November, 2003, and there exists the relationship of landlord and tenant between them, but the petitioner attempted to qualify the said plea on the pretext that the landlord/respondent is engaged in the property dealing business and, hence, their need may not be treated to be bona fide because they

have got an another accommodation available with them. Though the details of which was missing in her evidence all throughout the proceedings, before both the Courts. The burden, which was to be discharged, by the petitioner/tenant, but she had failed to lead any evidence, in that regard, to the contrary.

IV. The petitioner, though had admitted to be a tenant, but had submitted, that since the landlord/respondent, has got various other accommodations, available with them, both commercial, as well as residential, where they can easily accommodate themselves with their family, hence their need may not be treated as to be bona fide, as compared to that of the petitioner/tenant, and in order to support the said contention, the petitioner/tenant, has pleaded that the landlord has got a permanent residence in Nagar Nigam area of District Dehradun, bearing Municipal No. 91/71, Ravindra Nath Tagore Marg, Block No.1, Dehradun. She further alternatively submitted, that so far as the availability of the accommodation with her, which is under her ownership, at 60 Cantt. Landhour Bazar, is concerned, the same is not in her possession because according to the case of the petitioner/tenant, it is being occupied by the unauthorised occupants and she is in fact not in actual and effective possession of it.

V. In the additional plea, which was thus taken by the tenant/petitioner, primarily she has harped upon, that since the landlord, has got

other sufficient alternative accommodation in District Dehradun, a different municipality altogether, their need may not be treated as to be a bona fide requirement, as they have an another place of abode in Dehradun.

           VI.      The petitioner/tenant, had submitted

      of   2012,        which     was       preferred   by   the

respondents/landlord, Saraswati Jain Vs. Sudha Agarwal, that itself will create a doubt with regard to the bona fide need of the landlord, to file their release application subsequent in time in 2014, for seeking release of the same accommodation, for which the SCC Suit was filed, earlier.

13. At this stage, certain glaring pleadings, which are apparent on record and are necessarily required to be pointed out, are as under :-

i. In the written statement, there is not even a single averment or denial, which has been made by the petitioner/tenant, pertaining to the plea of availability of the property No. 60, at Landhour Cantt, which was under the ownership of the tenant/petitioner, which was in fact a specific plea, which was taken by the landlord in para 7 of the release application, which was a fact not denied by the tenant/ petitioner, in its specific terms, at any stage of the proceedings, even upto this Court.

ii. The plea of the petitioner/tenant , that the landlord has got other accommodations available with them at District Dehradun, in fact, if the pleadings, which has been raised in para 6 and 17

of the written statement, itself is taken into consideration, the tenant/petitioner, has come up with the case in her pleading, that the said pleading of availability of the accommodation, with the landlord/respondent, in Nagar Nigam area of Dehradun, she was not very sure regarding it, for the reason being that apart from the pleadings which was raised in written statement, the pleading was also raised by her to the effect that the petitioner/tenant, was making an attempt to search the details of the property of the landlord, allegedly which was lying in District Dehradun.

iii. Meaning thereby, rationally by the time when the written statement itself was filed by the petitioner/tenant, she herself was not very sure about the pleadings and no detail particulars pertaining to the availability of and of the extent of accommodation with the landlord/respondent, was ever pleaded, proved or established by any independent evidence, which was adduced on record before the Courts below, by the petitioner/tenant. Thus plea would be taken as to be purely an artificial pleading, which remained unsubstantiated, and supported by any independent evidence, which was adduced by the tenant/petitioner, as she never attempted to prove the same, by bringing any evidence on record.

iv. What is important is that, if the pleadings which has been raised in the written statement, itself are taken into consideration in its totality, there is not even a single whisper or the plea,

which has been raised by the tenant/petitioner, that ever after the institution of the release application on 23rd January, 2014, the petitioner/tenant, had ever made or adopted any legally recognized measures to look for an alternative accommodation, as it has been contemplated by the procedure, which is prescribed under Section 16 of the Act No. 13 of 1972, because there was no evidence, which was ever led to the contrary, by the tenant/petitioner, in the proceedings which were held before the Courts below.

v. The plea of the petitioner/tenant, that the tenancy was initially created for both commercial, as well as residential accommodation was a plea, which was yet again, not proved by the petitioner/tenant, by placing any document by way of evidence on record, to show that the petitioner was validly conducting the business , its name and style, under which it was registered and carried, which were ever recognized, as per the available Taxation and Labour Laws, in order to show that the business, which was being conducted by her was legal and was recognised by the statutory authorities for the taxation purposes. Hence, the subsequent and an afterthought plea, which was raised by the tenant/petitioner, that they are doing the business and they do not have any other alternative accommodation available with them is not sustainable and contrary to her own defence, which was taken in the written statement, and it cannot be considered for the

purposes of determining her bona fide requirement, as it would amount to be a plea taken as an afterthought and was foundationed and based on the advice of the legal experts.

vi. The aspect pertaining to a prior issuance of six months notice, before initiation of the proceedings under Section 21 (1) (a) of the Act No. 13 of 1972, was never a plea, which was raised by the petitioner/tenant at the first available instance while raising the plea in objection to release, in the written statement.

vii. In view of the fact that there was an absence of the pleadings in the written statement, the principle of waiver, for compliance of the proviso to Section 21 (1) (a) of the Act No. 13 of 1972, would come into play, hence, it could not have been raised by her for the first time, about its effect, once the finding in that regard has already been recorded by the Court of learned Prescribed Authority in its judgment rendered on 25th November, 2016.

14. The learned counsel for the petitioner/tenant in his pleading, which has been raised in para 62 of the Writ Petition, had made reference to a judgment, as has been reported in 2003 (9) SCC 151, Kishan Chand Vs. Jagdish Prasad and others and, particularly, he has drawn the attention of this Court, to the contents and ratio laid in para 6 and 7 of the said judgment, which are quoted hereunder :-

"6. While undoubtedly it is true that the judgment if it has the relevance ought to have a binding effect by reason of the larger Bench opinion of the fact but the fact remains that the earlier judgment in Kishan Chand case dealt with the issue only on the concealment of material facts and not otherwise. The issue over here is not only concealment of facts but the bona fide requirement as well and it is abundantly clear that the learned Rent Controller in the petition under Section 14(1)(e) of the Delhi Rent Control Act, 1958 did go into the question of bona fide requirement. While dealing with the same the Rent Controller recorded the following findings:

(iii) PW 1 in his cross-examination deposed that there are 13 rooms in Property No. 2516-17, Churiwalan, Delhi and he has no documents to show that other petitioners are living in this property. The case of the respondent from the very beginning has been that the said entire building is in possession of Petitioner 1. RW 1 Jagdish Pershad has deposed that the said Property No. 2516-17 is owned by Petitioner 1 and there are 35 rooms in all in this property and Petitioner 1 is in possession of all the said 35 rooms and no other person is in possession of the said property except Petitioner 1. This part of the statement of the respondent has not been challenged by Petitioner 1 at all during cross- examination of the respondent, for reasons best known to Petitioner 1. This clearly shows that Petitioner 1 admits the aforesaid testimony of the respondent.

(iv) The present petition has been filed by the petitioners for alleged bona fide requirement of Petitioner 1 only. The discussion above, makes crystal clear that Petitioner 1 has concealed the material fact that his son named Atul owns a flat at Pooja Apartments, Patparganj, New Delhi in pleadings. Petitioner 1 has also sought eviction of the respondent tenant for residential requirements of his said son Atul and his family members. In my considered opinion, Petitioner 1 is guilty of concealment of residential accommodation owned by his son at Pooja Apartments, Patparganj, Delhi. It is well-settled law that a person concealing the material fact cannot seek the assistance of the

Court. Further, as already discussed above, Petitioner 1 is in possession of 35 rooms which accommodation is more than sufficient to Petitioner 1."

7. There are thus, admittedly 13 rooms in possession of the landlord, though we do not have the user of the rooms. Significantly RW 1 Jagdish Pershad has deposed before the Rent Controller that there are in fact 35 rooms which are all in the possession of Petitioner 1. This aspect of the matter has not been dealt with in cross- examination of RW 1. There is not even a suggestion that the evidence being tendered is an exaggerated version or there is any dispute. In any event, the site plan was also not taken recourse to during the course of hearing before the learned Rent Controller."

15. As far as the facts, which were involved consideration before the Court, in the said case, for the purposes of determining the aspect of bona fide requirement of the landlord, it was the fact and circumstances, there involved, where the landlord has concealed the fact of expanse of other accommodation, which was already, available with him for the purposes of accommodating his family, wherein in those circumstances, the Hon'ble Apex Court has held that, whenever, "the landlord is proved", to have indulged in concealment of a material fact, which affects the availability of a sufficient accommodation with the landlord, the release deserves to be rejected.

15.1 This case is based upon altogether a distinct fact. The facts are that without there being any evidence brought on record, the tenant/petitioner had pleaded the availability of accommodation with the landlord, that too allegedly, in a different municipality, as provided under the Act. This fact admittedly was not

proved by evidence, and the petitioner/tenant in the present case, had tried to shift the burden of its proof to be made by the landlord, which is not intended under law, that the landlord would be expected to lead an evidence against him.

15.2 If a benefit of a particular pleading is being derived by the petitioner /tenant, of an availability of the accommodation with the landlord, in the same municipality, then quite obviously, the burden too was to be discharged by the petitioner herself, for the facts being that in the present case, even it had never been the case of the tenant/petitioner, that the landlord has got an any other alternative residential accommodation available with him in the same municipal area or a local body, as it had been contemplated under Explanation 1 of Section 21 (1) (a), and the fact of availability of a residential accommodation, as pleaded though which was not proved, by the tenant to be available with the landlord was alleged to be in Nagar Nigam area of District Dehradun, apart from the fact that it was not a fact which was proved, it will have no bearing being contrary to the implications of Section 21 (1) (a), which provides for availability of accommodation in the same municipal or local body.

16. In the preceding paragraphs of the Writ Petition, this Court was called upon by the learned counsel for the petitioner to answer, his pleading on the issue and implications of Order 41 Rule 31 of the C.P.C., so far it relates to governing the proceedings under Section 22 under the Act No. 13 of 1972, in the light of the provisions contained under Section 34 to be

read with Rule 22, that will be answered by this Court in the subsequent paragraphs of this judgment.

17. Another question, which is being sought to be addressed by the learned counsel for the petitioner, it relates to the determination of an aspect of bona fide need of the tenement. In relation to which, the petitioner had made references to the various judgments, on which, he places reliance and referred to in paragraph 62 onwards in the pleading of the Writ Petition.

18. In order to answer it appropriately, and also having gone through the authorities, on which, the reliance has been placed by the counsel for the petitioner, he intended to mislead the Court, for the reason being that the legislature, when it was formulating the Rules, under Section 34 (1) (g), of Act No. 13 of 1972, necessary to be applied for the purposes of elucidating the aspect of bona fide requirement as contemplated under Section 21 (1) (a) of Act No. 13 of 1972, is concerned, the provisions contained under Section 21 (1) (a), is a general principle and a substantive provision, which contemplates the initiation of the proceedings for release of the building being occupied by the tenant irrespective of the fact whether it is residential or a commercial tenement, as Section, itself carves out no distinction between the two nature of accommodation. But its parameters, as to the manner in which the decision is to be taken is contemplated by legislature under Section 34, to be read with Rule 22. The Rules of 1972, as notified on 1st July, 1972, in the exercise of

its powers under Section 41 of the Act, had specifically provided the basic principles and the basic norms, which will govern the decision to be taken for releases under Section 21 (1) (a) of Act No. 13 of 1972, on the ground of the bona fide requirement of the landlord/respondent, viz-a-viz the bona fide need of the tenant/petitioner.

19. The wider principle has been provided under Rule 16 of the Rules, which is necessarily required to be extracted, hereunder, for the reasons being that this Court for the purposes of answering the judgments relied by the learned counsel for the petitioner, would have to make a specific reference to the Rules from time to time. Rules 16 is quoted hereunder :-

"16. Application for release on the ground of personal requirement (Sections 21(1)(a) and 34(8). - (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 be 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 the 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 requirement shall be construed liberally;

(d) Where the tenant's need 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) Whether there are a number of tenant separately occupying a block of tenements and the landlord desires their eviction on ground of his personal need the prescribed authority shall considered 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 are 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 of 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 person, and by reason of cessation of such engagement, the landlords needs the building for occupation by himself for residential purposes, such need shall ordinarily be deemed sufficient.

(2) While considering an application for release under clause (a) of sub-section (1) of section 21 in respect of 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 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 part 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 within 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 or a male lineal descendant of the landlord has, after the building is originally let out, completed his or her technical education and is not employed in Government service, and wants to engae in self-employment, his or her need shall be given due consideration.

(3) Where the tenant being a servant of Government or of any local authority or any public sector corporation does not contest the application, then a reasonable opportunity of being heard shall be given to the District Magistrate, who shall have the right to oppose the application."

20. If Rule 16, which has been made applicable over the proceedings which are provided under Section 21 (1) (a), it has been further spilited into Sub-rule (1) and Sub-rule (2). The sub-clauses of the Sub Rules of Rules 16 (1) deals with the "residential" releases, and the Sub-rule (2) deals with the releases for the

purposes of "business", and on a harmonious reading of Sub-rule (1) and (2) of Rules 16, is taken into consideration, they are absolutely independent to one another, laying down altogether a different set of norms, and the legislature has, that is why made the Rules distinct, to one another so far it relates to its applicability on the nature of tenement, and they are not to be intermingled, while considering the releases of "residential" or the "commercial"

accommodations, which are filed under Section 21 (1)

(a) of Act No. 13 of 1972.

21. The learned counsel for the petitioner in para 63, of the Writ Petition, has made reference to a judgment, as reported in AIR 1974 SC 1596, Mattulal Vs. Radhe Lal, and particularly, the reliance which has been placed by the learned counsel for the petitioner, is to the contents of para 12 of the said judgment. Para 12 of the said judgment is referred to hereunder :-

"12. The question would still remain whether there were proper grounds on which this finding of fact could be interfered with by the High Court. It is now well settled by several decisions of this Court including the decision in Sarvate T.B.'s case 1966 M. P. Law Journal 26 and Smt. Kamla Soni's case C.A. No. 2150 of 1966, decided on 26th September, 1969 that mere assertion on the part of the landlord that he requires the non-residential accommodation in the occupation of the tenant for the purpose of starting or continuing his own business is not decisive. It is for the court to

determine the truth of the assertion and also whether it is bona fide. The test which has to be applied is an objective test and not a subjective one and merely because a landlord asserts that he wants the non-residential accommodation for the purpose of starting or continuing his own business, that would not be enough to establish that he requires it for that purpose and that his requirement is bona fide. The word 'required' signifies that mere desire on the part of the landlord is not enough but there should be an element of need and the landlord must show the burden being, upon him that he genuinely requires the non-residential accommodation for the purpose of starting or continuing his own business. The Additional District Judge did not misdirect himself in regard to these matters, as for example, by misconstruing the word 'required' or by erroneously placing the burden of proof on the appellant and no error of law was committed by him in arriving at the finding of fact in regard to the question of bona fide requirement of the respondent, which would entitle the High Court in second appeal to interfere with that finding of fact."

22. Before venturing to answer the applicability of the said judgement, this Court, feels it to be necessary to point out that Rule 16, as was substituted by notification No. 1795, on 25th May, 1977, i.e. subsequent to the judgement of Mattulal (Supra) relied with by the learned counsel for the petitioner. In

this judgment, this Court feels it to be necessary to make a reference to the foundation of the issue, which was being then dealt with by the Hon'ble Apex Court, which was in relation to a "shop", which would be governed by Sub-rule (2) of Rule 16 of the Rules of 1972, and since in the present Writ Petition the release sought for was for the residential accommodation, which is governed by procedure under Rule 16 (1), I am of the view, that the circumstances, which was being considered in the judgment of Mattulal (supra) case since it was in relation to a commercial establishment, it will not be applicable in the present case.

23. Its applicability, would still be doubtful to be applied in the present case for yet another reason, the reason being that it was a case which was arising out of Madhya Pradesh Accommodation Control Act, 1961, and since tenancy being a State subject, which is included in List-II- State List of the 7th Schedule of the Constitution of India, and particularly, when in that case the release was sought for non residential accommodation, and that too, in a third successive proceedings, which were being held by the landlord, was dealing with altogether, a distinct situation in the light of the provisions of Section 12 of the said State Act of Madhya Pradesh, and hence, I think, it would not apply in the present case. Why this contention is being raised by this Court, is that at that stage when the matter of Mattulal (Supra) travelled to the Hon'ble Apex Court, it was considering an aspect of exercise of a Second Appellate jurisdiction under

Section 100 of the CPC and its scope of determination, as has been referred in para12 of the said judgment. The reference made by the counsel for the petitioner, to para 12, was dealing with the situation of the findings which was recorded by the High Court in the Second Appellate Court jurisdiction, and that too with regard to a non residential accommodation, in occupation of a tenant for the purposes of starting or continuing of his own business, where it was observed that the requirement signified under the said M.P. Act, has to be a bona fide requirement in co-relation to the nature of business expected to be initiated by the landlord, for which, the release was being sought. It is not only that, it is under a different fact altogether, it was foundationed upon an earlier judgment, as was reported in 1966 Madhya Pradesh Law Journal 26 (SC). Thus, I am of the view that the proceedings initiated therein in the Mattulal (Supra) was by way of nature of a regular suit by a Civil Court, deciding the rights of the parties for release of non residential accommodation. Its parameters, facts and law were altogether distinct, as that engaged considerations of the present case, which is exclusively a release limited for residential need, hence, the said judgment would not apply in the present case, and as already observed, the determination here in the present case is to be made, under Sub-rule (1) of Rule 16 and not under Sub-rule (2) of Rules 16 of Rules of 1972.

24. In para 64 of the Writ Petition, the petitioner had made reference and relied upon a judgement, as

reported in 2000 (1) AWC 412, Pramod Kumar Verma Vs. VIth Additional District Judge, Bijnor and others. Particularly, he has made reference to para 9 of the said judgment, which is referred to hereunder :-

"(9) THE expression of the words "bona fide required" under Section 21 (1) (a) of the Act has been judicially Interpreted in various decisions of the Supreme Court and this Court vide Mattu Lal v. Radhey Lal, AIR 1974 SC 1596 : Bega Begum and others v. Abdu1 Ahad Khan and others. AIR 1979 SC 272 ; Ajit Prasad v. IVth Additional District Judge, Meerut, 1979 ARC 73 ; Jayant kumar v. Prescribed Authority and others, 1979 UPRCC 132. The mere desire without a necessity cannot be treated as bona fide but on the other hand, it is also not necessary that unless there is absolute or extreme necessity, the need cannot be treated as bona fide. The word "bona fide" means genuinely, sincerely, i. e., in good faith in contradiction to mala fide. The requirement of an accommodation is not bona fide if it is sought for ulterior purposes on fanciful whim but once it is established that the landlord requires the accommodation for the purpose which he alleges and there is no ulterior motive to evict the tenant, the requirement should be treated as bona fide."

25. If the foundation of the conclusion which had been arrived at by the Coordinate Bench of Allahabad High Court, is taken into consideration and even as

referred in para 9, of the said judgment quoted above, it was a conjoint implication of Section 21 (1) (a), to be read with Rules 16 (2), for the "release of a shop", to meet the need of the landlord's son, who was unemployed, and it was also dealing with an aspect about the tenant's incapability and failure to look for an alternative commercial accommodation and, hence, the finding which was recorded in para 9 of the Writ Petition and ultimately, the Writ Petition was dismissed. For the reasons already given above, pertaining to the distinct implications of Rules 16 (1) and 16 (2), since the said case relates to Rule 16 (2), for a shop, would yet again not apply in the present case, which relates to the release of the residential accommodation, which falls to be governed under Rule 16 (1) of the Rules framed under Section 41 of Act No. 13 of 1972.

26. Another judgment, which has been referred to by the learned counsel for the petitioner, in para 65 of the Writ Petition is that as reported in AIR 1999 SC 2507, Shiv Sarup Gupta Vs. Dr. Mahesh Chand Gupta. He has referred to para 12 of the said judgment, which is extracted hereunder :-

"12. A perusal of Section 14 of the Act shows that the law has imposed restrictions on the recovery of possession of any premises by a landlord from a tenant notwithstanding any law or contract to the contrary. However, an order for recovery of possession is permissible on one or more of the specified grounds. One such ground is the premises let for residential purposes being required bona fide by the landlord for occupation as residence for himself or for any member of his family dependent on him. What is a bona fide

requirement is not defined in the Act. The words "need" and "require" both denote a certain degree of want with a thrust within demanding fulfilment. "Need" or "requirement" qualified by the word "bona fide" or "genuine" preceding as an adjective

-- is an expression often used in rent control laws. "Bona fide or genuine need" of the landlord or that the landlord "genuinely requires" or "requires bona fide" an accommodation for occupation by or use for himself is an accepted ground for eviction and such expression is often employed by rent control legislation draftsman. The two expressions are interchangeable in practice and carry the same meaning."

27. The foundation of the proceedings involved therein, of the said judgment of Shiv Sarup Gupta (Supra) was emanating from the implications of the provisions of Section 25 (B) (8) of the Delhi Rent Control Act, 1958, and the Hon'ble Apex Court, in the said judgment was dealing with the aspect of powers of revision, which had been given under the said Act, to the Courts, viz-a-viz its comparative scrutiny with regard to the power of revision which are contemplated under Section 115 of the C.P.C., and there the Hon'ble Apex Court, has drawn a distinction in para 11 of the said judgment that the powers of revision as it had been given under the Delhi Rent Control Act, 1958, under Section 25 (B), as it finds place in Chapter 3 (A) of the Act, is a wider power of revision as compared to the revisional power under Section 115 of C.P.C., where even a factual narration and interpretation, can alternatively also be made and its applicability has not been confined and limited to the principles, which had been laid down under Section 115 of C.P.C. Hence, the inference drawn and which has been relied by the counsel for petitioner by virtue of referring para 12, for

the purposes of determining the bona fide need and the requirement, where it has been held that it altogether denotes a certain degree of want, in the said case, it was dealing with an aspect of the judgment which was rendered in the exercise of revisional power of the Court, under the Delhi Rent Control Act, and it would not apply in the present case, for the reason being that if the judgment itself which is subject matter under challenge in the present Writ Petition is taken into consideration, which was arising from the summary proceedings.

28. I am of the view that the basic pleadings of the release application as expressed by the landlord, to accommodate his family members in itself is of a bona find requirement, to meet out the residential need of the landlord and his family members, and hence, the degree of bona fide requirement, in the facts of the present case is more severe and sincere for the landlord /respondent, as compared to that of the tenant/petitioner, who was already found to be having an alternative accommodation in Landhour Canntt, the same local body, and hence, the aforesaid principles as enumerated therein would not apply, and also in view of the reasons, which has been recorded in para 14, of the said judgment of Shiv Sarup Gupta (Supra), because in the said case the Hon'ble Apex Court, was more particularly dealing with a situation where it was proved that the landlord had other residential accommodations. Which was a fact though pleaded in the present case; but was never attempted to be proved by the petitioner/tenant that the

landlord/respondent had any other residential accommodation available with him, within the same municipal area, in the light of the Explanation to Section 21 (1), in order to appropriately determine the bona fide need of the landlord, to be not genuine and that too in the light of the facts which has been already referred to above, where the petitioner/tenant has failed to establish, to have looked for an alternative accommodation, though it was proved and admitted by the petitioner/tenant that she had other alternative accommodation available with her in the same municipal area of the Landhour Canntt.

29. In para 66 of the Writ Petition, the learned counsel for the petitioner, has referred to yet another judgment which had been reported in 2016 (3) AWC 2483, Suresh Prasad Vs. Addl. District Judge Gorakhpur and others, which was yet again a release, which was sought in relation to a commercial accommodation, and its impact of Rule 16 (2), was being considered by the learned Single Judge of Allahabad High Court, wherein, the aspect, which was being considered was relating to the tenant, who was proved to be already having a shopping complex and also an aspect as recorded in para 16 of the said judgment, which is referred to hereunder :-

"16. In alternative, argument of the learned counsel for the petitioner is that even if the averment of the landlord is accepted that shop "P" was given on rent to Gopal Kumar Gupta in the year 2005, it is a case of deemed tenancy. The tenancy of Gopal Kumar Gupta is void ab initio

inasmuch as the said shop was given on rent to Gopal Kumar Gupta without an allotment order."

30. The circumstances, which entailed consideration by the High Court in the said case was, where the landlord in the said case during the pendency of the release application, itself has let out a shop "P", to yet another person, i.e. Gopal Kumar Gupta, therein in 2005, without a due process of release as it has been provided under 12 and an allotment being made under Section 16 of the Act No. 13 of 1972 and, consequently, in view of the aforesaid facts and circumstances, the Court had considered its impact in para 18 also, which is quoted hereunder :-

"18. He vehemently argued that this question raised before this Court is required to be examined in order to look into the genuineness of the need set up by the landlord. The petitioner is a sitting tenant protected by the Rent Control Act till he is evicted in accordance with law. Another tenant Gopal Kumar Gupta, cannot win over the petitioner inasmuch as he is an unauthorized occupant. The petitioner cannot be evicted in a case where the landlord has committed illegality in giving another shop on rent without an allotment order. There is a restriction on occupation of a building without allotment or release and Gopal Kumar Gupta cannot be allowed to occupy the Shop "p". The Rent Control Act is meant for protection of a tenant who is inducted legally and is not meant for the protection of an unauthorized occupant. The petitioner is protected by the

beneficial provisions as contained in the Rent Control Act inasmuch as the landlord has chosen a legally inducted tenant as against an unauthorized occupant and, therefore, the entire exercise undertaken by the Courts below is liable to be held illegal. The landlord is not entitled to claim for recovery of possession of the shop which has been let out to the tenant much earlier in time."

31. Its where the Court has observed, that where the landlord, since had inducted other tenants and that too, contrary to the provisions of law, and the induction of a tenant who being in an unauthorised occupancy of a shop, getting vacant during the pendency of the proceedings of release, was held to be, not a bona fide need of a landlord, the finding of which, has been extracted to be applied by the counsel for the petitioner as observed in para 31 of the said judgment, which is quoted hereunder :-

"31. There is yet another aspect of the matter that the word "bona fide need" as found in Section 16(1)(b) and Section 21(1)(a) carries the same meaning. The object and purpose of Section 16 may be different from that of Section 21 but the expression "bona fide" need has to be given the same meaning. In both the cases, the landlord has to establish his bona fide requirement to get the premises released. There is no difference in the degree of "need" to be established by the landlord in the proceedings under Section 16(1)(b) or Section 21(1)(a). Only benefit before the landlord in a matter under Section 16(1)(b) is that

the tenant would not be there to contest his need and the comparative hardship of the tenant would not be seen in such a case. This view finds support from a decision of this Court in Dr. Sita Ram Gandhi v. IV Additional District Judge, Meerut and Another 1983(1) ARC 782.

Relevant paragraph 10 is as under:-

"10. It may be correct that in Section 16(1)(b) as well as in Section 21(1)(a) the legislature has used the same expression, i.e., "bona fide requirement". The settled rule of interpretation of statutes is that an expression used in the same statutes at two places should be given the same meaning unless the context requires otherwise. Though the object and purpose of Sec. 16 is different than that of Sec. 21, but in the background or in the context of these provisions, this expression has to be given the same meaning. The expression require significance that mere desire on the part of the landlord is not enough. There should be an element of need and the landlord must show that he requires the building in question for the purpose for which he has applied. The use of the expression 'bona fide' is indicative of the intention of the legislature that the requirement should be common or with good faith, honestly, truly or actually. The contention of the petitioner's learned counsel that the proceedings of sections 16 and 21 being different, the meaning to be assigned to this expression used in the two sections should also be

different does not appeal to me. The same word may mean one thing in one context and another in different but hear the context of Sections 16 and 21 is necessarily the same i.e., the requirement of the land to get his premises released. Mere assertion on the part of the landlord that he requires additional accommodation in occupation of the tenant is not sufficient. It is for the court to determine the truth of the assertion and also whether in is bona fide. The test, as said by the Supreme Court in Mattulal v. Radhe Lal is objective and not subjective.""

32. It is quite obvious under those facts and circumstances, as involved therein in the said case, that :-

(i) Letting out, to another tenant, was after filing of a release by the landlord;

(ii) Vacancy of a shop had occurred during the pendency of the release filed by the landlord under Section 21 (1) (a);

(iii) Letting it out to the third person by the landlord during the pendency of the release was contrary to Section 16 of the Act, and;

(iv) Letting out of a shop, in contravention of the provisions of the Rent Control Act itself, under the facts of said case would be deemed to be that the need of landlord was not a bona fide. But, for the reasons already given above, since it was in relation to the commercial accommodation

and the facts were absolutely distinct and alien to the present case, it would not apply under any circumstances and the parameters of determination of bona fide need sought to be attracted in the present case is absolutely untenable and of no benefit to the petitioner, as it exclusively relates to residential accommodation.

33. The petitioner has relied yet on an another judgment, as reported in ARC 1983, page 782, Dr. Sita Ram Gandhi Vs. 4th Additional District Judge, Meerut and another, and he had referred to its para 10, which is extracted hereunder :-

"10. It may be correct that in Section 16(1)(b) as well as in Section 21(1)(a) the legislature has used the same expression, i.e., "bona fide requirement". The settled rule of interpretation of statutes is that an expression used in the same statutes at two places should be given the same meaning unless the context requires otherwise. Though the object and purpose of Sec. 16 is different than that of Sec. 21, but in the background or in the context of these provisions, this expression has to be given the same meaning. The expression require significance that mere desire on the part of the landlord is not enough. There should be an element of need and the landlord must show that he requires the building in question for the purpose for which he has applied. The use of the expression 'bona fide' is indicative of the intention

of the legislature that the requirement should be common or with good faith, honestly, truly or actually. The contention of the petitioner's learned counsel that the proceedings of Sections 16 and 21 being different, the meaning to be assigned to this expression used in the two sections should also be different does not appeal to me. The same word may mean one thing in one context and another in different but hear the context of Sections 16 and 21 is necessarily the same, i.e., the requirement of the land to get his premises released. Mere assertion on the part of the landlord that he requires additional accommodation in occupation of the tenant is not sufficient. It is for the court to determine the truth of the assertion and also whether it is bona fide. The test, as said by the Supreme Court in Mattulal v. Radhe Lal AIR 1974 SC p. 1596 is objective and not subjective."

34. There cannot be any dispute or a debate, that under the Act No. 13 of 1972, the release of the tenement of any nature is contemplated, under two different and distinct provisions, as contained under Section 16 of the Act, i.e. under the circumstances on declaration of a vacancy, under Section 12 of the Act, on a tenant vacating the tenement, on his own. Whereas, under Section 21 (1) (a), where a release has been contemplated, its a need, where the sitting tenant who continues to occupy the tenement and there is no vacancy, as such, and the tenement is required to be released by the landlord, for meeting out his personal

need. I am of the view that the degree of determination of bona fide requirement under both the circumstances are entirely different and distinct to be considered under different parameters, which has to be based on personal need of landlord. The logic behind it is that if para 2 of the judgment of Sita Ram Gandhi (Supra), is taken into consideration, it was a case where the sitting tenant Mr. N.K. Daga, who was then occupying the premises had on 19th April, 1976, applied with the Rent Control and Eviction Officer, a different authority, created under the Act No. 13 of 1972, for declaration of the vacancy, whereby expressing his intention to vacate the premises, and on its declaration of vacancy under Section 16 of the Act, by an order of 22nd April, 1976, therein in the said case, there were two pending applications for allotment of the accommodation under Section 16 of the Act No. 13 of 1972, and it was against the rejection of the said allotment, the Revision under Section 18 was decided, the Writ Petition was preferred against these orders, which are absolutely different, and has no applicability in the present case.

35. The principles, as extracted to be applied by referring to para 10 of the said judgment, which has been extracted above, the Court has held that the aspect of bona fide requirement. I am of the view that, the reference of bona fide requirement, under the two provisions of law under the same Statute i.e. under Section 16 and under Section 21(1)(a), it is always the background and the particular facts, under which the release is being sought, under two independent

provisions, which has to be considered, for the reasons being that for the releases under Section 16, and the principle of the releases under Section 21, which are exclusively governed by Rule 16 of the Act, would not apply. Hence, the degree of consideration of bona fide requirement inter se, between the number of applicants applying for allotment, on declaration of a vacancy by RC & EO under Section 12, for an allotment under Section 16, is much more different and distinct than that to the release, which is contemplated under Section 21 (1) of the Act and that too under the circumstances of the present case, where the need of the family members to accommodate, them for residential purposes was a fact not denied by the learned counsel for the petitioner/tenant.

36. In para 68 of the Writ Petition, the petitioners' counsel has referred to a judgment as reported in AIR 1998 SC 1858, Dilbag Rai Punjabi Vs. Sharad Chandra, in which the wider principle and scope, which has been laid down is that as to what is the ambit of consideration of facts by the Second Appellate Court. But, however, when this Court attempted to extract the said judgment on the basis of the aforesaid citation in order to consider its impact, over the present case, in fact, it is not a citation, which is reported in AIR 1998 SC 1858, because it refers to altogether a different judgment and hence, the Court is not in a position to answer the same, in the present case. Even otherwise also, in the absence of the correct citation, being provided by the petitioner, if the para of the judgement which is extracted therein, is

taken into consideration, it reflects that even the judgment referred in para 68 of the Writ Petition, since it relates to a "substantial question of law", the inference which could be drawn is that it must have been also arising out of a regular civil proceedings and not a proceeding, which is summary in nature as contemplated under Act No. 13 of 1972, in order to make it applicable in the same degree of application, as it has to be made applicable, on an appreciation of evidence required in a regular civil proceedings and hence, would not apply.

37. Lastly, para 69 of the Writ Petition the learned counsel refers to the two judgments as reported in 1997 (1) SCC 749, Nellikkottu Kolleriyil Madhavi Vs. Kavakkalathil Kalikutty and others and a judgment which is reported in 1987 (1) AWC 454, Habib-Ul-Rahman Vs. 1st Additional District Judge, Bijnor.

38. These two judgments, once again, the petitioner has placed reliance from the perspective to establish the parameters of determination of bona fide need of the tenant. With all due reverence at my command, this Court after having gone through the judgments of Nellikkottu (Supra), a reference may be had to para 3 of the said judgment, which is quoted to hereunder :-

"3. This appeal by special leave arises from the judgment and decree of the Kerala High Court dated 24-5-1993, made in SA No. 368 of 1989.

The respondents had purchased the Plaint

Schedule property in execution of the decrees in OS No. 262 of 1955 on the file of the Court of the District Munsif, Parappanangadi. The sale certificate, Exh. A-2 dated 28-1-1958 was given to the respondents. They had also filed an application for delivery of possession of the property which had come to be delivered under Exh. A-3 dated 21-7-1961. After taking delivery of the possession on 20-10-1961, they assigned the Plaint Schedule property to the plaintiff. Under those circumstances, the question arises whether they are entitled to a decree of perpetual injunction restraining the appellant from interfering with his possession. Though the trial court and the appellate court had accepted the case of the appellant, the High Court has pointed out that aforesaid documents are material for deciding the controversy and the courts below had not considered those documents in proper perspective. Accordingly, in second appeal, the High Court has gone into that question. It is settled law that the person who purchases the property in a court auction-sale, gets title to the property by sale certificate issued by the court as true owner and after confirmation of the sale, he gets possession thereof. In view of the fact that Plaint Schedule property was delivered to Sankaran under Exh. A-3 on 21-7-1961, he lawfully came into possession and the same was delivered in turn to the plaintiffs. Non- consideration of the material evidence is a substantial question of law."

39. The factual backdrop of the said case will not apply in the present circumstances of the case, for the reasons being, that it was yet again a judgment, which was considering the effect on execution proceedings, under Order 21, Rule 92, 94 and 95 of the CPC, which was rather arising out of the regular civil proceedings, which was lastly decided by Kerala High Court, in a Second Appeal, where an auction purchaser, was seeking an injunction to protect his right of possession, which was created in his favour, as a consequence of conclusion of auction proceedings of the scheduled property in his favour as given in the plaint of the said case. This principle too being altogether factually and legally distinct, to the present case, would not be applicable in the summary proceedings, which had been culminated against the petitioner/tenant, by concurrent impugned judgements, in a proceedings for release, under Section 21(1)(a) of the Act.

40. The judgement of Habib-Ul-Rahman (Supra) relied by the learned counsel for the petitioner, a reference has been made to para 16 and 17 of the said judgment, which is quoted hereunder:-

"16. After hearing Learned Counsel for the Petitioner and the vehemence with which the legality of the order passed by Respondent No. 1 has been maintained by the Learned Counsel for the contesting Respondents I have no doubt in my mind as regards the applicability of Rule 16(2)(d) in the instant case which have not been correctly applied by Respondent No. 1. Rule 16(2)(d) for a better appreciation is reproduced below:

"(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."

A bare reading of this rule would clearly reveal that it was enjoined for the purposes of a person or his heirs who had completed his technical education. Such completion of technical education shall be consequent to the letting out of the building. It was on the completion of such technical education that the rule provides that such person is not employed in Government service and wants to engage in self employment. These two aspects must be primarily satisfied whereafter the rule provides that the need shall be given due consideration. Unless either of the conditions as enjoined in this rule is not satisfied the question of giving any due consideration would not arise. In the instant case neither of these two conditions as postulated in this rule are satisfied and as such giving of due consideration would not arise. Respondent No. 3 at the time when the application under Section 21 of the Act wan filed was studying in the Medical (Ayurvedic) College. Such an essential of the words "completed his or her technical education" was thus wanting. No doubt an amendment was made consequently but this aspect was not considered by Respondent No. 1 satisfactorily. Secondly medical education would not come within the ambit of the words technical education. The medical profession which Respondent No. 3 wanted to pursue would not be attracted or be synonymous with the word technical. Medical education and technical education are wholly different. In Webster's Dictionary (Unabridged) the word 'medical' means as under:

"1. Pertaining to or employed in the Science, study or practice of medicines, or the art of healing diseases.

2. Medicinal; as, the medical properties of a plant (rare).

Similarly the word 'technical' in the said dictionary means:

"1. Having to do with the practical, industrial, or mechanical arts or the applied Sciences; as, technical schools offer courses in welding engineering etc."

A medical examiner in this dictionary means:

"(a) A corner or similar public officer;

(b) A physician who examines Applicants for life insurance.

Further 'doctor' as per this dictionary means:

"a physician or surgeon,

a person licensed to practice any of the healing arts, as an osteopath, a witchdoctor or medicine man."

"A clinic has been explained in this dictionary as:

"a place where patients are studied or treated by physicians specialising in various ailments and practising as a group; as a cancer clinic, a tuberculosis clinic.

The dispensary or out patient department of a hospital or medical school where patients are treated free or for a small fee."

Applying and co-relating the meaning of these words it is clear that medical education is completely at variance with technical education.

Respondent No. 3 being a medical practitioner or a doctor is as such not a person who may be called a technician or on completion of his medical education may be deemed to have completed his technical education. Respondent No. 1 erred in law in giving due consideration in respect of the need of Respondent No. 3 for opening a clinic disregarding that more than 3 shops are available with the Respondent No. 3.

17. During the pendency of the case before Respondent No. 1 as well as during the pendency of this petition certain new facts have cropped up which require consideration. Catena of decisions are to the effect that subsequent events which have arisen require adequate consideration. Similar view was expressed in Smt. Jai Devi v. 6th Addl. District Judge 1985 (2) ARC 549. As new facts have been brought before this Court it would be appropriate that such facts are examined afresh. Respondent No. 3 has admittedly opened a Chemists and Druggists shop. Other shops are also available with him. The need of a clinic or that of a business by opening a Chemists and Druggists shop stands satisfied. However, it is necessary that this aspect that the need stands satisfied also requires consideration. in the case of Gautam Chand Jain v. Smt. Sushila Kumari 1985 (2) ARC 259 the Supreme Court came to the conclusion that in view of the landlords having in possession various shops in the town for housing a clinic their need would stand satisfied. The

intention of the Legislature was to provide an umbrella of protection to tenants against their frivolous evictions from the accommodations in their tenancy and occupation. Such a protection cannot be lightly removed when the Prescribed Authority found the need of Respondent No. 3 for opening a clinic as neither bona fide nor genuine. Admittedly a tenant cannot be evicted on the mere ipsedixit of a landlord. In permitting a tenant to be thrown at the mercy of the landlord the very intention of the statute would thus stand frustrated."

41. Once again, if the said judgment of the Coordinate Bench of Allahabad High Court as was rendered in Habib-ul-Rehman (Supra) is taken into consideration it will have no applicability, as it was determining the issue of bona fide requirement and comparative hardship in the light of Rule 16 (2) (D), i.e. a person being in relation to a commercial accommodation, i.e. a shop and it was dealing with the non concurrent matters, which is entirely distinct to the present case and has got no applicability.

42. Even the evidences, which was led by the landlord/respondent in support of his contention to establish his bona fide requirement and also the affidavits which were filed in support of thereto, i.e. paper No. 19-A, i.e. the municipal assessment of the tenement, in question, paper No. 20-A, i.e. the affidavit of Sunil Prakash, paper No. 21-A, i.e. affidavit of Anil Prakash, and if the statement of evidence which has recorded therein, i.e. paper No. 28-A of Smt. Sudha

Prakash, the tenant/petitioner and other evidence which was produced by way of photographs, rent receipts, legal notice etc., they do not support or substantiate the case of the petitioner/tenant and hence, it could be safely said that the findings, which has been recorded by the both the Courts below is concurrent in nature. It does not call for any interference in the exercise of the supervisory jurisdiction under Articles 227 of the Constitution of India, in the light of the principles, which has been laid down by the Hon'ble Apex Court, for exercising the supervisory writ jurisdiction, in view of the ratio propounded by the Hon'ble Apex Court in the judgments as reported in 2004 (3) SCC 682, Ranjit Singh Vs. Ravi Prakash and that as reported in 2003 (6) SCC 675, Surya Dev Rai Vs. Ram Chander Rai and others, which has limited the application of supervisory powers of the High Court under Articles 226 and 227 of the Constitution of India, as not to be a Court of Appeal which would be entitled to re- appreciate the evidence which has been recorded by the concurrent judgments of the Court below and particularly that too in proceedings which are summary in nature under the State Rent Laws.

43. In support of her contention, the petitioner/tenant, had placed on record, paper No.28- ka, i.e. the statement which was made of Sudha Prakash, the principal tenant, with regard to substantiating her stand pertaining to the availability of the property to her, which was lying at 60 Landhour Cantt. Bazar, Mussoorie, District Dehradun, and further

in order to prove that the said property was a commercial property, which was in possession of the unauthorised occupants.

44. I am of the considered view that if a property which is belonging to the tenant/petitioner, is being occupied by an unauthorised occupant, and particularly when the vesting of its title and ownership is a fact, which is not being denied or disputed by the tenant/petitioner, in an eventuality, if for the malicious reasons of installing and delaying the release itself, if the tenant/petitioner, does not make any effort or steps to get the accommodation vacated from the possession of the alleged unauthorised occupants, which admittedly and exclusively belongs to her, and permits it to be continuously occupied by the unauthorised occupants, as per the plea of the tenant/petitioner herself, she cannot be permitted with the liberty, to take the advantage of the fact that the building or the accommodation, which admittedly belongs to her; since being occupied by unauthorised occupants, the same cannot be said to be a building which is available to the tenant.

45. The very fact which is also established from records is that the tenant even after filing of the release application on 23.01.2014, till now has not made any effort by drawing any judicial proceedings, to re-occupy the possession of her own building which is lying in Landhour Cantt., that in itself is sufficient to show that the need of the petitioner/tenant, is not bona fide as compared to that of the landlord/respondent

because as per the pleading and evidence, which has been brought on record, she had even never made any efforts to oust the alleged unauthorised occupants from her own building, which itself would mean that her need is not bona fide and hard pressing.

46. Furthermore, because she herself has not placed any evidence on record, to establish and prove to, that she had ever attempted or looked into for an alternative accommodation to accommodate herself and hence, the aspect of bona fide need, which has been decided in favour of the landlord/respondent concurrently, by both the Courts below are based on facts and on an appropriate appreciation of evidence, which does not suffer from any apparent legal defect; for the reason being that logically and rationally too, every landlord, who has an accommodation available, under his or her title and ownership, in a local area, has got all the legal right to accommodate his family according to his own will, choice and desire, in order to provide each of the family members a comfortable living and the tenant, under any percept of law, cannot in an advisery capacity, advise the landlord in any manner or logic, to look for the alternative accommodation, which in the instant case is pleaded by the petitioner/tenant, though without there being any evidence or material being brought on record, that the landlord has got any other accommodation in Dehradun.

47. Even if the provision of Section 21 (1) (a) itself is taken into consideration, this plea of defence is

not available to the tenant/petitioner, as its restrictions are only, limited to where the "tenant", or his family members who had built or occupied any other vacant accommodation, within same municipal area, i.e. local body, this provision is not qua the "landlord". Hence, the said plea, is not made available to the tenant/petitioner, even where the landlord has got any other accommodation available to him or her, in the same or in other Municipal area, and this is so because, as per the opinion of this Court, it is exclusively the choice of the landlord to choose, his / her accommodation, out of the total number of accommodations; which may be available to him/ her, as its the landlord himself or herself, who is to decide that which is best suited accommodation for him/her, and his family, for his/her, peaceful and comfortable living and the tenant under no stretch of law can advice the landlord. Reference be had to Explanation (i) contained under Section 21 of the Act No. 13 of 1972.

48. Even otherwise also, this plea of an availability of accommodation, with the landlord, as raised by the tenant, though without any proof being brought on record to the said effect, that the landlord has got other accommodations No. 91/71 Ravindra Nath Tagore Marg, Block No.1, Dehradun. Although, it was pleaded in para 17, of the written statement by the petitioner/tenant, but it was not proved as per law of evidence, but still as per opinion of this Court, it does not commensurate to be the restrictions, which has been imposed by the Explanation (i) to Section 21 (1)

(a); because the restriction of availability of an

accommodation has been confined in its applicability, to be the availability of accommodation in the same "Municipal area", and that too with regard to the "tenant". Explanation (i) of the Section 21 (1) (a) of the Act No. 13 of 1972, is extracted hereunder:-

"Explanation - (i) where the tenant or any member of his family [who has been normally residing with or is wholly dependent on him] has built or has otherwise acquired in a vacant state or has got vacated after acquisition a residential building in the same city, municipality, notified area or town area, no objection by the tenant against an application under this sub-section shall be entertained."

49. I am of the view, that the language used therein, with regard to the availability of another accommodation, is confined in its applicability to the 'tenant', and his/her, family members only and not to the 'landlord', who are exempted by its implication and furthermore, particularly in the circumstances of the present case if the aspect of availability of an accommodation, if it is exclusively taken into consideration, the legislature uses the word, same city, municipality, notified area or town area, which means that the nomenclature of the municipal areas or the notified areas, in its exclusive terms, would literally mean the availability of an accommodation, as had been provided under the Explanation (i), in that eventuality, it would relate to, to be studied for the local body and since the Landhour or the municipality

of Mussoorie or for that purpose, even the Nagar Nigam of District Dehradun, since they enjoy the status of being different, distinct and independent local bodies, which are being managed and controlled by its own elected body, the availability of an accommodation, even with the landlord/respondent, for that purpose, in other local area or local body, cannot be taken up as to be a valid ground to deny the release of the tenement, as has been preferred by the landlord/respondent, under Section 21 (1) (a) of Act No. 13 of 1972.

50. If the entire Writ Petition, is taken into consideration in its entirety and the manner in which the pleadings have been projected, particularly, as that contained in para 23 onwards of the Writ, whereby references has been made to the various judicial precedents and, particularly, the judgment as referred to in para 23, which is quoted hereunder. It was specifically pleaded by the petitioner/tenant, in relation to establishing the case that there was no bona fide requirement of the landlord, and the decision taken was perverse.

51. The learned counsel for the petitioner/tenant, Mr. Neeraj Garg, had relied upon, the following series of judgments, where are referred to and dealt with hereunder :-

i. 2018 (3) SCC 340,G. Saraswati and another Vs. Rathinammal and others.

ii. 2018 (1) SCC 604, C. Venkata Swamy Vs. H.N. Shivanna.

iii. 2010 (13) SCC 530, B.V. Nagesh and another Vs. S.V. Sreenivasa Murthy.

iv. 2016 (4) SCC 172, Uttar Pradesh State Road Transport Corporation Vs. Mamta and others.

v. 2001 (4) SCC 756, Madhukar and others Vs. Sangram and others.

vi. 2001 (3) SCC 179, Santosh Hazari Vs. Purushottam Tiwari.

vii. 1993 (1) AWC 294, Nathu Ram Vs. The Spl. Judge (D.A.A.) Jhansi and others.

52. This Court before addressing the judgment relied, on its merit, this Court had already observed in para 2, 3 and 4 of the judgment, the modus operandi, of the counsel for the petitioner to place reliance on the irrelevant judgments, which had got no significance or its applicability, under the facts and circumstances of the present case, and this Court has already consciously observed that the intention behind making reference to the judgment, was to mislead the Court and to buy time in prolonging the proceedings in order to overcome the effect of dismissal of the concurrent, Writ Petitions in limine by placing voluminous judgments on records, and making references of them, by quoting its excerpts.

53. The judgements, which has been referred to, and relied by the learned counsel for the petitioner as mentioned in Para 16, before venturing to answer each and every judgments, the factual aspect as engaged consideration in those judicial proceedings and the circumstances, as to whether, it would apply in the

present case or not. It becomes essential for this Court, before answering to it, to deal with the procedure, which regulates the proceedings; before the Prescribed Authority, under Section 21 (1) (a) of Act No. 13 of 1972, and before the Appellate Authority under Section 22 of the Act No. 13 of 1972, which are exclusively governed by the provisions contained under Section 34 (1) of the Act, which makes the limited applicability of CPC, over the proceedings under the Act, to a limited extent and only with regard to the areas, which are specifically dealt with under Sub-section (1) of Section 34, which has been referred to above. The provisions contained under Section 34 (1) of the Act, has had to be read with Section 38 of the Act, which provides that the Transfer of Property, and provisions contained under the Civil Procedural Code, the provisions of these Acts will have an overriding effect, notwithstanding anything contained in consistent with the provisions contained under the CPC. Section 38, is referred to hereunder :-

"38. Act to override T.P. Act and Civil Procedure Code. - The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Transfer of Property Act, 1882 (Act No.IV of 1882), or in the Code of Civil Procedure, 1908."

54. The implications of Section 34 (1), is to be read with Section 38, is yet against to be read in its applicability with regard to the authorities created under the Act, who had to govern the proceedings, which are placed, before it as per Rule 22 of the Rules

framed under the Act, under Section 34 (1) (g) of the Act. The provisions of Rule 22, had been extracted to have been framed by exercising the powers under Section 34 (1) (g), which provides that the limited applicability of the CPC, it would be limited to the extent and as to the manner in which it has been "prescribed" under the Act, the term, which has been defined under Sub-section (d) of Section 3 of the Act. The prescription, has been provided under Rule 22, as framed under Section 34 (1) (g), has yet again limited the applicability of the provisions of CPC only in relation to the disciplines and the area, which have been referred to under Rule 22, which is quoted hereunder :-

"22. Powers under the Code of Civil Procedure, 1908 [Section 34 (1) (g)] - The District Magistrate, the Prescribed Authority or the Appellate Authority shall, for the purposes of holding any inquiry or hearing any appeal or revision under the Act, shall have the same powers as are vested in the Civil Court under the Code of Civil Procedure, 1908, when trying a suit, in respect of the following matters, namely -

(a) the power to dismiss an application, appeal or revision for default and to restore it for sufficient cause ;

(b) the power to proceed ex parte, and to set aside, for sufficient cause, an order passed ex parte;

(c) the power to award costs and special costs to any successful party against an unsuccessful party;

(d) the power to allow amendment of an application, memorandum of appeal or revision;

(e) the power to consolidate two or more cases of eviction by the same landlord against different tenants;

(f)the power referred to in section 151 and 152 of the Code of Civil Procedure, 1908 to make any order for ends of justice or to prevent the abuse of process of the authority concerned.]"

55. This Court, in order to answer the relevance of the judicial precedents, as referred in para 23 of the Writ Petition, and to the extent, whether it would apply under the facts and circumstances of the present case or not, and what was the intention behind it of the Counsel, for which, the petitioner's counsel had added the same in his pleadings, are being dealt herewith in respect of each and every case, as are referred therein.

56. To start with (a) (2018) 3 SCC 340, G. Saraswathi and another Vs. Rathinammal and others, the certain facts are required to be considered are that, in the said case, it was arising out of the proceedings of regular Second Appeal, as contemplated under Section 100 of the CPC, whereby the implications of the provisions contained under Order 41 Rule 31, which has been made applicable in the regular civil proceedings, which was the subject matter of consideration, which was arising out of a Suit for Specific Performance, and was dealing with the observations, which were made by the

judgment of the Letters Patent Appeal, preferred before the High Court, concerned. A reference may be had to para 9 and 10 of the said judgment, which is referred to hereunder :-

"9. Indeed, in the absence of any application of judicial mind to the factual and legal controversy involved in the appeal and further without even mentioning the factual narration of the case set up by the parties, the findings of the two courts as to how they dealt with the issues arising in the case in their respective jurisdiction and without there being any discussion, appreciation, reasoning and categorical findings on the issues and why the findings of two courts below deserve to be upheld or reversed, while dealing with the arguments of the parties in the light of legal principles applicable to the case, it is difficult for this Court to sustain such order of the Division Bench. In our opinion, the disposal of the LPA by the Division Bench of the High Court cannot be said to be in conformity with the requirements of Order 41 Rule 31 of the Code of Civil Procedure, 1908 (hereinafter referred to as "the Code").

10. Time and again, this Court has emphasised on the courts the need to pass reasoned order in every case which must contain the narration of the bare facts of the case of the parties to the lis, the issues arising in the case, the submissions urged by the parties, the legal principles applicable to the issues involved and the reasons in support of the findings on all the issues in support of its conclusion. It is really unfortunate that the Division Bench failed to keep in mind this principle while disposing of the appeal and passed a cryptic and unreasoned order. Such order undoubtedly caused prejudice to the parties because it deprived them to know the reasons as to why one party has won and the other has lost. We can never countenance the manner in which such order was passed by the High Court which has compelled us to remand the matter to the High Court for deciding the appeal afresh on merits."

In the aforesaid paragraphs, the Hon'ble Apex Court has observed that the Division Bench of Madras High Court, in fact, at the time when it was dealing with the LPA, arising out of the regular First Appellate Court's judgment, had not dealt with the core issue about the application of the provisions contained under Order 41 Rule 31 of the CPC, and hence, had held the judgement to be vitiated.

57. After having considered the factual backdrop therein, this Court is of the view that the aforesaid principles of the implications contained under Order 41 Rule 31, due to its non prescription, under Rule 22 of the Act No. 13 of 1972, and its non inclusion in the provisions contained under Rule 22, the principle enunciated therein would not apply, as those were the regular civil proceedings, which were arising out of the Suit for Specific Performance, and the findings recorded therein cannot be borrowed for the purposes of conducting a summary proceedings which were contemplated under Section 21 (1) (a) of Act No.13 of 1972, over which, the provisions of Order 41 Rule 31, had not been specifically made applicable, in view of the specific intention of the legislature, by not adding the application of Order 41 Rule 31, in Rule 22 of the Rules framed under the Act, over the appellate proceedings the provisions of Order 41, in fact, has been excluded to be applied by the Rules prescribed under the Act No. 13 of 1972.

58. (b) The second judgment relied by the counsel for the petitioner is that reported in (2018) 1 SCC 604, C. Venkata Swamy Vs. H.N. Shivanna

and another. In the aforesaid judgment, yet again, it was arising out of a regular proceeding of civil suit for declaration of rights and for the grant of decree of permanent injunction, whereby, the Suit was dismissed and on the other hand, the counter claim which was filed under Order 8 Rules 6-A of the CPC, by the defendant was decreed, and consequently, it was those judgments, which were rendered by the regular Civil Courts, which were subject matter of challenge in the First Appeal under Section 96 of the CPC, and there too, the Hon'ble Apex Court had dealt with the aspect and implications of Order 41 Rule 31, in relation to the circumstances of that case, and it related to the circumstances under which, it could be made applicable in the facts and circumstances of the said case, particularly when it was dealing with the wider principles which had been laid down by Kerala High Court in a judgment as reported in AIR 1969 Kerala 316, Kurian Chacko Vs. Varkey Ouseph. Reference may be had to para 10, 11 and 13 of the said judgment, which are quoted hereunder :-

"10. The need to remand the case to the High Court has occasioned for the reason that the Single Judge dismissed the appeals very cursorily and without undertaking any appreciation of evidence, dealing with various issues arising in the case and discussing the arguments raised by the parties in support of their case. In other words, the disposal of the two first appeals could not be said to be in conformity with the requirements of Section 96 read with Order 41 Rule 31 of the Code.

11. It is a settled principle of law that a right to file first appeal against the decree under Section 96 of the Code is a valuable legal right of the litigant. The jurisdiction of the first appellate court while hearing the first appeal is very wide like that of the

trial court and it is open to the appellant to attack all findings of fact or/and of law in first appeal. It is the duty of the first appellate court to appreciate the entire evidence and arrive at its own independent conclusion, for reasons assigned, either of affirmance or difference.

13. As far back as in 1969, the learned Judge V.R. Krishna Iyer, J. (as his Lordship then was the Judge of Kerala High Court) while deciding the first appeal under Section 96 of the Code in Kurian Chacko v. Varkey Ouseph reminded the first appellate court of its duty to decide the first appeal. In his distinctive style of writing with subtle power of expression, the learned Judge held as under: (SCC OnLine Ker paras 1-3) "1. The plaintiff, unsuccessful in two courts, has come up here aggrieved by the dismissal of his suit which was one for declaration of title and recovery of possession. The defendant disputed the plaintiff's title to the property as also his possession and claimed both in himself. The learned Munsif, who tried the suit, recorded findings against the plaintiff both on title and possession. But, in appeal, the learned Subordinate Judge disposed of the whole matter glibly and briefly, in a few sentences.

2. An appellate court is the final court of fact ordinarily and therefore a litigant is entitled to a full and fair and independent consideration of the evidence at the appellate stage. Anything less than this is unjust to him and I have no doubt that in the present case the learned Subordinate Judge has fallen far short of what is expected of him as an appellate court.

3. Although there is furious contest between the counsel for the appellant and for the respondent, they appear to agree with me in this observation. ..."

(emphasis supplied)"

By way of repetition, this Court is of the view, by way of reiteration that the said principles, on which, the reliance has been made by the learned counsel for the petitioner would not apply in the circumstances of the present case, which is and have been decided under the special statute, having a limited application of the

CPC, i.e. Rent Control Laws and being a proceedings, which are summary in nature, the said principles will not apply for holding a detail trial and appellate proceedings. Formation of point of determination, as under Order 41 Rule 31 of CPC, is not contemplated under the Rent Laws.

59. (c) The third judgment, on which, the reliance has been made by the learned counsel for the petitioner is that, which is reported in (2010) 13 SCC 530, B.V. Nagesh and another Vs. H.V. Sreenivasa Murthy. Looking to the facts of the said case and, particularly, the finding, which has been recorded therein in para 2, 3 and 4 of the said judgment, which are referred to hereunder :

"2. The impugned judgment passed by the High Court arose out of regular first appeal filed under Section 96 CPC. It is the grievance of the appellants that the High Court, without adverting to all the factual details and various grounds raised, disposed of the appeal in a cryptic manner. In the light of the above assertion, we verified the impugned judgment of the High Court. The High Court, after narrating the pleadings of both the parties, without framing points for determination and considering both facts and law set aside the judgment and decree of the trial court and modified the same without proper discussion and assigning adequate reasons.

3. How the regular first appeal is to be disposed of by the appellate court/High Court has been considered by this Court in various decisions. Order 41 CPC deals with appeals from original decrees. Among the various rules, Rule 31 mandates that the judgment of the appellate court shall state:

(a) the points for determination;

(b) the decision thereon;

(c) the reasons for the decision; and

(d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled.

4. The appellate court has jurisdiction to reverse or affirm the findings of the trial court. The first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. Sitting as a court of first appeal, it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings. The first appeal is a valuable right and the parties have a right to be heard both on questions of law and on facts and the judgment in the first appeal must address itself to all the issues of law and fact and decide it by giving reasons in support of the findings. (Vide Santosh Hazari v. Purushottam Tiwari, SCC p. 188, para 15 and Madhukar v. Sangram, SCC p. 758, para 5.)"

It was yet again dealing with the implications of applicability of the provisions contained under Order 41 Rule 31 by the First Appellate Court, whereby, the First Appellate Court has decided the regular First Appeal, under Section 96, by non formulation of the point of determination, which has been held to be mandatory for an effective adjudication of a regular First Appeal under Section 96. The said identical principle will not be applicable and cannot be borrowed to be applied in the proceedings, where a detailed process of leading a long drawn evidence or deciding the proceedings after appreciation of the evidences to be led by the parties, only after formulation of the point of determination under Order 41 Rule 31, has not been made applicable, under Rules prescribed under the Act

or the procedure contemplated under it, which has already been referred heretoabove.

60. (d) The 4th judgment, on which, the reliance has been placed by the learned counsel for the petitioner, is that as reported in (2016) 4 SCC 172, Uttar Pradesh State Road Transport Corporation Vs. Mamta and others. Factually, the said judgment was dealing with the proceedings, which were, arising out of the Motor Vehicle Act of 1988, particularly, that as contained under Section 173, 140 and 166 of the Motor Vehicles Act, whereby, the First Appellate Court, was exercising the powers under Section 173, and while exercising those powers the Court has held and laid down the ratio that the powers under Section 173, of Motor Vehicles Act of 1988, is synonymous to the powers that are contained under Section 96 of the CPC, and thereby it was held that the determination of the accident compensation, it ought to have been done by the First Appellate Court under Section 173, only after satisfying itself with the requirement and parameters as above provided under Order 41 Rule 31, which lays down the parameters for a concise recording of statement of case, points of determination and the reasons for decisions. A reference may be had to the contents of para 14, 16, 19, 21, 23 and 24 of the said judgment relied by the Counsel, which are quoted hereunder :-

"14. As far back as in 1969, the learned Judge V.R. Krishna Iyer, J. (as his Lordship then was the Judge of the Kerala High Court) while deciding the first appeal under Section 96 CPC in Kurian Chacko v. Varkey Ouseph2 reminded the first appellate court of

its duty to decide the first appeal. In his distinctive style of writing with subtle power of expression, the learned Judge held as under: (SCC OnLine Ker paras 1-

3) "1. The plaintiff, unsuccessful in two courts, has come up here aggrieved by the dismissal of his suit which was one for declaration of title and recovery of possession. The defendant disputed the plaintiff's title to the property as also his possession and claimed both in himself. The learned Munsif, who tried the suit, recorded findings against the plaintiff both on title and possession. But, in appeal, the learned Subordinate Judge disposed of the whole matter glibly and briefly, in a few sentences.

2. An appellate court is the final court of fact ordinarily and therefore a litigant is entitled to a full and fair and independent consideration of the evidence at the appellate stage. Anything less than this is unjust to him and I have no doubt that in the present case the learned Subordinate Judge has fallen far short of what is expected of him as an appellate court.

3. Although there is furious contest between the counsel for the appellant and for the respondent, they appear to agree with me in this observation."

(emphasis supplied)

16. In Santosh Hazari v. Purushottam Tiwari, this Court held as under: (SCC pp. 188-89, para 15) "15. ...The appellate court has jurisdiction to reverse or affirm the findings of the trial court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court... while reversing a finding of fact, the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it."

The above view was followed by a three-Judge Bench decision of this Court in Madhukar v. Sangram, wherein

it was reiterated that sitting as a court of first appeal, it is the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings.

19. Again in B.V. Nagesh v. H.V. Sreenivasa Murthy, this Court taking note of all the earlier judgments of this Court reiterated the aforementioned principle with these words: (SCC pp. 530-31, paras 3-

5) "3. How the regular first appeal is to be disposed of by the appellate court/High Court has been considered by this Court in various decisions. Order 41 CPC deals with appeals from original decrees. Among the various rules, Rule 31 mandates that the judgment of the appellate court shall state:

(a) the points for determination;

(b) the decision thereon;

(c) the reasons for the decision; and

(d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled.

4. The appellate court has jurisdiction to reverse or affirm the findings of the trial court. The first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. Sitting as a court of first appeal, it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings. The first appeal is a valuable right and the parties have a right to be heard both on questions of law and on facts and the judgment in the first appeal must address itself to all the issues of law and fact and decide it by giving reasons in support of the findings. (Vide Santosh Hazari v. Purushottam Tiwari, SCC p. 188, para 15 and Madhukar v. Sangram, SCC p. 758, para 5.)

5. In view of the above salutary principles, on going through the impugned judgment, we feel that the High Court has failed to discharge the obligation placed on it as a first appellate court. In our view,

the judgment under appeal is cryptic and none of the relevant aspects have even been noticed. The appeal has been decided in an unsatisfactory manner. Our careful perusal of the judgment in the regular first appeal shows that it falls short of considerations which are expected from the court of first appeal. Accordingly, without going into the merits of the claim of both parties, we set aside the impugned judgment and decree of the High Court and remand the regular first appeal to the High Court for its fresh disposal in accordance with law."

21. An appeal under Section 173 of the MV Act is essentially in the nature of first appeal alike Section 96 of the Code and, therefore, the High Court is equally under legal obligation to decide all issues arising in the case both on facts and law after appreciating the entire evidence. (See National Insurance Co. Ltd. v. Naresh Kumar and State of Punjab v. Navdeep Kaur)

23. Mere perusal of the aforequoted order of the High Court would show that the High Court neither set out the facts of the case of the parties, nor dealt with any of the submissions urged, nor took note of the grounds raised by the appellant and nor made any attempt to appreciate the evidence in the light of the settled legal principles applicable to the issues arising in the case to find out as to whether the award of the Tribunal is legally sustainable or not and if so, how, and if not, why?

24. As observed supra, as a first appellate court, it was the duty of the High Court to have decided the appeal keeping in view the powers conferred on it by the statute. The impugned judgment also does not, in our opinion, satisfy the requirements of Order 20 Rule 4(2) read with Order 41 Rule 31 of the Code which requires that judgment shall contain a concise statement of the case, points for determination, decisions thereon and the reasons. It is for this reason, we are unable to uphold the impugned judgment of the High Court."

In fact, in the said judgment too of UPSRTC (Supra), the principle of the precedence which have been referred to above, have been identically followed

and referred to also and that too the finding, which has been recorded, particularly in para 19 and 21, in fact, had yet again was under the same principles, where the proceedings have been decided by way of a regular civil proceedings and not a summary proceedings, as had been contemplated under the Act No. 13 of 1972, where the applicability of the order 41 Rule 31 of C.P.C. has been upheld by the Hon'ble Apex Court to have been made applicable, as being a regular appeal, in the appellate proceedings which are held under Section 173 of the Motor Vehicles Act, which as per the opinion of this Court has been exclusively excluded in its applicability by Section 34, to be read with Rule 22 of the Act No. 13 of 1972. Hence, this judgment too would be of no avail, as far as the petitioner of the present Writ Petition is concerned for the reason being that the scope of leading evidence in the proceedings under Act No. 13 of 1972, have been specifically limited in its applicability to the areas, which as per opinion of this Court are exclusively included under Section 34 and Rule 22 of the Act, which by its implication, excludes the applicability of the Order 41 of the CPC, and consequently, the provisions of Rule 31, as its application would defeat the very procedural restrictions of Act No. 13 of 1972, over a summary proceedings, dealing with the relationship of landlord and tenant, where detailed civil trial is not intended, by the legislature.

61. (e) The 5th judgment, on which, reliance has been placed by the learned counsel for the petitioner is that as reported in (2001) 4 SCC 756,

Madhukar and others Vs. Sangram and others. A reference may be had to para 5, 6 and 8, as has been relied by the counsel for the petitioner, which are referred to hereunder :-

"5. We have carefully perused the judgment and decree of the High Court in the first appeal. We find that substantial documentary evidence had been placed before the trial court including certified copies of certain public records besides copy of the judgment and decree of the earlier suit (OS No. 93 of 1971). Oral evidence had also been led by the parties before the trial court which was noticed and appreciated by the trial court.

However, the impugned judgment in the first appeal is singularly silent of any discussion either of documentary evidence or oral evidence. Not only that, we find that though the trial court had dismissed the suit on the ground of limitation as also on the ground that the decision in the earlier suit (OS No. 93 of 1971) operated as res judicata against Defendant 1 only, the High Court has not even considered, much less discussed the correctness of either of the two grounds on which the trial court had dismissed the suit. Sitting as a court of first appeal, it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings. It has failed to discharge the obligation placed on a first appellate court. The judgment under appeal is so cryptic that none of the relevant aspects have even been noticed. The appeal has been decided

in a very unsatisfactory manner. First appeal is a valuable right and the parties have a right to be heard both on questions of law and on facts and the judgment in the first appeal must address itself to all the issues of law and fact and decide it by giving reasons in support of the findings.

6. In Santosh Hazari v. Purushottam Tiwari this Court opined: (SCC pp. 188-89, para 15) "The appellate court has jurisdiction to reverse or affirm the findings of the trial court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. ... while reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it."

8. Our careful perusal of the judgment in the first appeal shows that it hopelessly falls short of considerations which are expected from the court of first appeal. We, accordingly set aside the impugned judgment and decree of the High Court

and remand the first appeal to the High Court for its fresh disposal in accordance with law."

Its yet again a reiteration of the same principles, so far it relates to the appreciation of the substantial documentary evidence, which was placed reliance therein the said case before the Trial Court, in a regular civil proceedings. and its scope of its interpretation and impact was under consideration in the said case by attracting the principles contained under Order 41 Rule 31 of the CPC. It is needless to say, that since it was emanating from an Appeal which was preferred under Section 96 of the CPC, it cannot be read in parlance to the appellate jurisdiction which has been vested with the appellate authority as created under Section 22 of Act No. 13 of 1972. Hence, the said principles of formulation of the point of determination as referred to in para 3 of the said judgment, would not be applicable under the circumstances of the present case. Para 3 of the said judgment is quoted hereunder :-

"3. Against the dismissal of the suit, a first appeal was filed by the respondent-plaintiffs in the High Court. The High Court, after noticing some details from the judgment of the trial court as also pleadings of the parties, opined that the questions to be decided in the appeal were:

"(1) Whether the relationship claimed by the parties is true?

(2) Whether the plaintiff is entitled to declaration as prayed for?""

62. (f) The 6th judgment, on which, reliance has been placed by the learned counsel for the petitioner is that as reported in (2001) 3 SCC 179, Santosh Hazari Vs. Purushottam Tiwari. A reference of

which has been made by the learned counsel for the petitioner to the findings and ratio as has been recorded in para 9, 10, 11 and 12 of the said judgment, which are referred to hereunder :

"9. The High Court cannot proceed to hear a second appeal without formulating the substantial question of law involved in the appeal and if it does so it acts illegally and in abnegation or abdication of the duty cast on Court. The existence of substantial question of law is the sine qua non for the exercise of the jurisdiction under the amended Section 100 of the Code. (See Kshitish Chandra Purkait v. Santosh Kumar Purkait, Panchugopal Barua v. Umesh Chandra Goswami and Kondiba Dagadu Kadam v. Savitribai Sopan Gujar.)

10. At the very outset we may point out that the memo of second appeal filed by the plaintiff- appellant before the High Court suffered from a serious infirmity. Section 100 of the Code, as amended in 1976, restricts the jurisdiction of the High Court to hear a second appeal only on "substantial question of law involved in the case".

An obligation is cast on the appellant to precisely state in the memorandum of appeal the substantial question of law involved in the appeal and which the appellant proposes to urge before the High Court. The High Court must be satisfied that a substantial question of law is involved in the case and such question has then to be formulated by the High Court. Such questions or question may be the one proposed by the appellant or may be any other question which though not proposed by the appellant yet in the opinion of the High Court arises as involved in the case and is substantial in nature. At the hearing of the appeal, the scope of hearing is circumscribed by the question so formulated by the High Court. The respondent is at liberty to show that the question formulated by the High Court was not involved in the case. In spite of a substantial question of law determining the scope of hearing of second appeal having been formulated by the High Court, its power to hear the appeal on any other substantial question of law, not earlier formulated by it, is not

taken away subject to the twin conditions being satisfied: (i) the High Court feels satisfied that the case involves such question, and (ii) the High Court records reasons for its such satisfaction.

11. Even under the old Section 100 of the Code (pre-1976 amendment), a pure finding of fact was not open to challenge before the High Court in second appeal. However the Law Commission noticed a plethora of conflicting judgments. It noted that in dealing with second appeals, the courts were devising and successfully adopting several concepts such as, a mixed question of fact and law, a legal inference to be drawn from facts proved, and even the point that the case has not been properly approached by the courts below. This was creating confusion in the minds of the public as to the legitimate scope of second appeal under Section 100 and had burdened the High Courts with an unnecessarily large number of second appeals. Section 100 was, therefore, suggested to be amended so as to provide that the right of second appeal should be confined to cases where a question of law is involved and such question of law is a substantial one. (See Statement of Objects and Reasons.) The Select Committee to which the Amendment Bill was referred felt that the scope of second appeals should be restricted so that litigations may not drag on for a long period. Reasons, of course, are not required to be stated for formulating any question of law under sub-section (4) of Section 100 of the Code; though such reasons are to be recorded under proviso to sub-section (5) while exercising power to hear on any other substantial question of law, other than the one formulated under sub-section (4).

12. The phrase "substantial question of law", as occurring in the amended Section 100 is not defined in the Code. The word substantial, as qualifying "question of law", means -- of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with -- technical, of no substance or consequence, or academic merely. However, it is clear that the legislature

has chosen not to qualify the scope of "substantial question of law" by suffixing the words "of general importance" as has been done in many other provisions such as Section 109 of the Code or Article 133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. In Guran Ditta v. T. Ram Ditta, the phrase "substantial question of law" as it was employed in the last clause of the then existing Section 110 CPC (since omitted by the Amendment Act, 1973) came up for consideration and their Lordships held that it did not mean a substantial question of general importance but a substantial question of law which was involved in the case as between the parties. In Sir Chunilal V. Mehta & Sons Ltd. v. Century Spg. and Mfg. Co. Ltd. the Constitution Bench expressed agreement with the following view taken by a Full Bench of the Madras High Court in Rimmalapudi Subba Rao v. Noony Veeraju:

"[W]hen a question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to deal with that question at some length and discuss alternative views, then the question would be a substantial question of law. On the other hand if the question was practically covered by the decision of the highest court or if the general principles to be applied in determining the question are well settled and the only question was of applying those principles to the particular facts of the case it would not be a substantial question of law."

and laid down the following test as proper test, for determining whether a question of law raised in the case is substantial:

"The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of

alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law.""

If the said judgment is taken into consideration in its entirely, it was yet again, a case which was arising out of the regular proceedings of a Civil Suit for declaration of title, and its ultimate challenge which was being given in the First Appeal and thereafter, consequently, the Second Appeal under Section 100 of the CPC and the said judgment was basically dealing with the issue of the effect of the formulation of the substantial question of law, while deciding the Second Appeal arising out of the First Appellate Court's judgment, rendered in a Regular Civil Proceedings. The parameters laid down therein was based on the scope of Section 96 and the formulation of the substantial question of law which was required under Section 100 of the CPC, as referred to the paras, which had been already referred above, all these issues and aspects are alien to the proceedings, which are held under the Act No. 13 of 1972, and the same would not be applicable in the present case, which is absolutely governed under a distinct procedure as framed under the Special Statute. Hence, I am of the view the scope of appellate power under Section 22 of the Act No. 13 of 1972, cannot be stretched to under Section 96 of the CPC, to apply Order 41 of C.P.C., over the proceedings under the special statute.

63. (g) Lastly, the learned counsel for the petitioner has referred to a judgment rendered by the Coordinate Bench of Allahabad High Court, as reported in 1993 (1) AWC 294, Nathu Ram Vs. Special Judge, (D.A.A.) Jhansi and others. The reference may be had to para 6 and 18 of the said judgment, which is quoted hereunder :

"6. Having considered the submissions made by the learned Counsel appearing for the parties, I am of the opinion that although the provisions Contained in Order 41 Rule 24 of the Code of Civil Procedure and Section 38 of the U.P. Act No. 13 of 1992, reliance on which was placed by Sri. C.N.

Verma learned Counsel for the Respondent landlord, are not attracted, but in my opinion the appellate authority did have the power to reverse the finding of the Prescribed Authority on the question of bona fide need even in absence of a cross objection. This power is conferred upon the appellate authority not by virtue of Order 41 Rule 24 of the Code of Civil Procedure and Section 38 of the Act, but by virtue of Section 34 of the Act read with Order 41 Rule 22 of the Code of Civil Procedure. According to Section 34 of the Act the appellate Authority, while deciding the appeal under Section 22 of the Act, is supposed to have the "same powers as are vested in the Civil Court under the Code of Civil Procedure, 1908. Thus the powers which are vested in the appellate court under Order 41 Rule 22 of the Code of Civil Procedure are exercisable by an appellate

authority while deciding an appeal under Section 22 of the Act.

18. A building may be wholly residential or non residential or it may be partly residential and partly non-residential. Whether a building or part thereof is residential or non residential, depends on factors such as the dominant object and purpose from the user point of view, of the building a part thereof as the case may be; the object and purpose of tenancy and the availability of facilities of residential or non-residential nature in the building or part thereof as the case may be. It is a question of fact to be determined in each case on the basis of evidence on record. The authorize concerned with the case on hand have not addressed themselves on the question relating to the applicability of the Explanation (I) to Sub- Section (1) of Section 21 of the Act in a correct perspective. A very serious consequence ensues and follows from the tenant's point of view. If the Explanation is held attracted the tenant is rendered defenseless. Therefore the question relating to the applicability of the Explanation should be very scrupulously examined. A perusal of the impugned judgments indicates that the authorities under the Act have not examined the question in correct perspective in as much a" they have not adverted to the case set up by the Petitioner in paragraph 10 of the written statement nor have they adverted to paragraph 23 of the affidavit filed by the Respondent landlord

(Annexure 1). It is too well settled that non- consideration of material and relevant evidence vitiates the finding on question of fact and the decision based on such finding is liable to be quashed under Article 226 of the Constitution."

If the principles enunciated therein in the said judgment, is taken into consideration, though this Court is not in agreement with the ratio laid down therein, that in a Rent Control proceedings under the Act, which are governed by Section 34 of the Act, whether the principles of Order 41 Rule 22 of filing of the First Appeal, would be made applicable in the proceedings under Act No. 13 of 1972, contrary to the object of the Act. Even if the principles and the finding which had been recorded in para 6 of the said judgment is scrutinized, the Court has expressed its opinion that the provisions contained under Order 41 Rule 24, for that matter as engaged in the said case, if it is read in consonance with the provisions as contained under Section 38 of Act No. 13 of 1972, has held that the same would not be attracted, in and over the proceedings, which are held under Act No. 13 of the 1972, and in view of the said finding itself, the findings, which has been recorded therein, would be of no relevance as far as the present case is concerned, for the reason being that the facts and its relevance which are required to be determined distinctly under the circumstances of each case, on the basis of evidence on record, the authorities, which are ceased with the matter are only expected to govern and regulate the proceedings as per the specific

procedure, which has been made applicable by the Special Statute and the General Procedural Law, as per the opinion of this Court, would not apply over the proceedings which are being held under Section 21 (1)

(a), and particularly that too, with regard to the procedure of Order 41 would not be attracted in the Appeal which has been preferred under Section 22 of the Act No. 13 of 1972.

64. In view of the reasonings given above, and having dealt with each and every case in details, I am of the view that none of the judicial precedence, as referred to above, which were widely dealing with the principles, governing the regular civil proceedings for declaration of rights or title, or a suit for specific performance, would not apply on the Rent Control Proceedings and, hence, is of no benefit as far as the petitioner/tenant is concerned.

65. As already observed above, in the pleadings, which has been raised in the written statement and the evidence, which has been adduced by way of the statement, which has been recorded of Sudha Prakash, i.e. Paper No. 28-Ka, there happens to be not even a single whisper, which has been made by her at any stage; even by the petitioner/tenant for that matter too, that after filing of the release application on 23.01.2014, she has ever looked or had even attempted to look for an alternative accommodation, by any judicially recognized means, and hence, as per the judicial precedence laid down both by the Hon'ble Apex Court, as well as by the Allahabad High Court consistently, holding thereof that if a tenant, after filing

of the release, where the relationship of landlord and tenant is a fact admitted, has failed to look for an alternative accommodation on filing of the release, it would be inferred and would be deemed that the bona fide need of the landlord happens, to be much more grievous and hard pressing, as compared to that of the tenant, and as such, in the circumstances or the absence of any efforts, being made by the tenant/petitioner to show and establish by evidence, that she has made or adopted any legally recognized mode or measure to look for an alternative accommodation, inference of bona fide requirement, would fall to be deduced in favour of the landlord/respondent and hence, the authorities relied with in the paragraph of the Writ Petition referred to above, i.e. 23, is of no avail; as far as the petitioner is concerned for the purposes of determination of her bona fide requirement. The reference may be had to the judgment of Smt. Razia Khatoon Vs. 1st Additional District Judge, Budaun and others, as reported in 1997 ALL.L.J. 1997, wherein, the Court has held in para 17 as under:-

"17. This Court in us decision in the case of N.S. Datta and Ors. v. VIIth Additional District Judge, Allahabad and Ors. 1984 (1) ARC 113, had observed that the proviso in question requires a mandatory regard being had to the advantages or disadvantages either in the event of the application for release being allowed or otherwise but each party was required to adduce evidence to show that hardship could be caused to him by grant or refusal of the release of the building

under tenancy and that the tenant must also adduce evidence to the effect that other reasonable accommodation was not available to him. It was further served that the Court is entitled also to take into account the fact that the tenant has neither alleged nor proved to have made effort to have an alternative accommodation and that non-availability of alternative accommodation to the tenant is not in itself an adequate ground to reject the landlord's application for release. In its decision in the case of Dr. Munni Lal v. IVth Additional District Judge, Etah and Ors. 1984 (1) ARC 378, this Court has clarified that the fact that nothing is brought on record indicating that the tenant had made any effort during the period of the pendency of the release application for getting some accommodation allotted in his favour or otherwise or that he had failed in his attempt is a relevant circumstances while considering the question relating to comparative hardships. Taking into consideration the scheme of the Act, I am of the firm opinion that such an inaction on the part of the tenant constitutes an additional circumstance which entitles the landlord to have a preference shown to him while striking the just balance between the genuine need of the landlord on the one hand and the likely inconvenience or trouble of the tenant on the other. It may further be borne in mind that the use of the phrase 'having regard to' as envisaged under the fourth proviso to Section 21 of the Act would clearly show that

this provision was not obligatory. The facts mentioned in Rule 16 of the Rules, should, however, have to be kept in mind while deciding the release application. No single factor can be held to be conclusive. As observed in its decision in the case of Mohd. Muslim v. District Judge, Varanasi and Ors. 1978 ARC 328, it is the cumulative effect of all that has to be seen. The inaction of the tenant to search for an alternative accommodation, as already indicated hereinbefore, constitutes an additional factor which may outweigh the hardship, if any, likely to be suffered by the tenant in the event of the grant of the release application in case where the bona fide requirement for the release stands conclusively established."

66. Similarly, in the case of Faiz Mohammad Vs. District Judge, Jhansi and others, as reported in 1992 (2) ARC 404, the Court has held in para 3, as under :-

"3 Learned counsel next contended that the finding of the prescribed Authority as well as of the District Judge on the point of comparative hardship is erroneous. I have examined the judgment of both the courts below and in my opinion they have rightly held that the landlord will suffer greater hardship in the event of refusal of the release application. It may be noticed that though the release application was filed on 18-2-1985 and is pending for about seven years, the petitioner-tenant did not make any effort

whatsoever to get an alternative accommodation. It is well settled that conduct of the tenant in not making effort for an alternative accommodation for himself is a relevant consideration for deciding the question of comparative hardship. The findings on the questions of bona fide need and comparative hardship are based upon evidence and being findings of facts cannot be interfered with in a writ petition under Article 226 of the Constitution."

67. The pleadings raised by the petitioner/tenant by drawing her inferences from the effect of institution of an earlier SCC Suit No. 53 of 2012, will yet again have no bearing, because it is altogether an independent proceedings, where its pendency or for that matter even its decision would not bar the proceedings under Section 21 (1) (a) of Act No.13 of 1972, where over the tenement, the Act applied, which is not disputed by the petitioner/tenant, and the parameters required for its determination are altogether independent and altogether different also to the parameters and procedure, which are contemplated under Section 34, to be read with Rule 22 of the Act No. 13 of 1972, which are summary proceedings. Even otherwise also legally, there is no legal bar too, that both the proceedings at the behest of the landlord under Provincial Small Causes Courts act, and under U.P Act No. 13 of 1972, cannot be taken up together.

68. Another, incidental plea, which has been raised by the petitioner/tenant, before the learned

Prescribed Authority too, to the effect that the respondent/landlord, had not applied for inspection of his property by getting appointed an Advocate Commissioner, is an absolutely a distorted and misconceived plea, which has been raised by the petitioner/tenant, for the reason being that its the tenant/petitioner, who has come up with the case before both the Courts below, that the landlord has got other alternative accommodations available with them, then in that eventuality, it was a burden, which was under law, was required to be discharged by the tenant/petitioner, herself by getting the commission conducted, and the said burden of proof cannot be permitted to be shifted by the petitioner/tenant, on the landlord/respondent, to establish and to lead a negative evidence, against himself, which would amount to lead negative evidence, that he has got no other accommodation available. Because the benefit of this plea, was being derived by the tenant/petitioner to her defence and advantage, then in that eventuality, it was the petitioner, who had to prove it and the burden of proof was to be discharged by the tenant/petitioner, herself and it was not the landlord/respondent, who was supposed to lead evidence against himself.

69. The petitioner/tenant dehors to the procedure provided and as prescribed under Rule 22, to be read of Section 34 of the Act. At the appellate stage, she has filed an application, for leading an additional evidence, by way of Paper No. 25 A and 45- C, in order to establish, that the property bearing No. 60 Landhour Cantt., Mussoorie, which belongs to her

has been recorded in the revenue register as a commercial property and further the municipal assessment, which has been placed on record being Municipal assessment relating to the assessment for the year 1999-2004, that in itself was not sufficient enough to establish beyond doubt that the petitioner/tenant's property at Landhour No. 60, was not available to the petitioner of which admittedly, she was an exclusively recorded owner, which was lying in the same municipal or local body, i.e. Landhour Cantt..

70. The petitioner/tenant, in the absence of there being any specific pleadings being taken by her in the written statement, had sought to attract his argument from the perspective of non issuance of a six months notice, as according to her, it has been contemplated under the first proviso to Section 21 (1) (a) of Act No. 13 of 1972. Before answering the judicial precedence, referred to by the learned counsel for the petitioner in para 32 of the Writ Petition, certain basic facts, which are essentially required to be dealt with are as under :

(i) In the proceedings before the Court below, paper No.31-Ka which was filed by the landlord/respondent. In the said document, he had referred to the notice which was issued on 16th April, 2005, and which, admittedly was replied by the petitioner/tenant, denying the contents of the notice.

(ii) There was a second notice too, which was issued on 17.07.2006, expressing the intention of the landlord/respondent of

termination of tenancy, which was received by the petitioner/tenant, and she had duly replied the same also on 26th July, 2006.

(iii) The third notice too admittedly was issued on 18th August, 2012, terminating the tenancy and the landlord/respondent expressing the opinion that the landlord does not intend to continue with the tenancy of the petitioner/tenant from the tenement, in question, in future any more.

71. This aspect of non issuance of a six months notice, has to be dealt with under the peculiar circumstances of the present case, where the learned Trial Court of the Prescribed Authority, in para 10 and 11 of the said judgment had specifically recorded a finding to the effect that if the written statement filed by the petitioner/tenant, itself is taken into consideration, there was no such specific plea raised by the petitioner/tenant at the first instance, and available opportunity, with regard to the non compliance of 1st proviso to Section 21 (1) (a) of Act No. 13 of 1972. In such an eventuality, where in a case there is the requirement of notice, it always entails an appreciation of evidence and facts, and in the absence of there being any plea to the said effect in the written statement, no evidence to the contrary could have been led by the landlord/respondent, without there being a pleading to the said effect though still the same was on record, brought by the landlord/respondent by way of paper No. 31-Ka, where the details of the

notices issued and the reply extended by the petitioner/tenant was given specifically in it.

72. The learned counsel for the petitioner, in support of his contention has supported his arguments under the strength of the pleadings, which had been raised in para 32 of the Writ Petition, where he had referred to a judgment, as reported in 1998 (1) SCC 732, Martin & Harris Ltd. Vs. VIth Additional Distt. Judge and others. A reference may be had to para 13 of the said judgment, which had been relied by him, which is quoted hereunder :-

"13. It is not possible to agree with the contention of the learned Senior Counsel for the appellant that the provision containing the proviso to Section 21(1) of the Act was for public benefit and could not be waived. It is, of course, true that it is enacted to cover a class of tenants who are sitting tenants and whose premises are subsequently purchased by landlords who seek to evict the sitting tenants on the ground of bona fide requirement as envisaged by Section 21(1)(a) of the Act, still the protection available to such tenants as found in the proviso would give the tenants concerned a locus poenitentiae to avail of it or not. It is easy to visualise that proceedings under Section 21(1)(a) of the Act would be between the landlord on the one hand and the tenant on the other. These proceedings are not of any public nature. Nor any public interest is involved therein. Only personal interest of landlord on the one hand and the tenant on the other hand get clashed and call for adjudication by the

prescribed authority. The ground raised by the landlord under Section 21(1)(a) would be personal to him and similarly the defence taken by the tenant would also be personal to him. Six months' breathing time is given to the tenant after service of notice to enable him to put his house in order and to get the matter settled amicably or to get alternative accommodation if the tenant realises that the landlord has a good case. This type of protection to the tenant would naturally be personal to him and could be waived. In this connection we may profitably refer to a decision of this Court in the case of Krishan Lal v. State of J&K wherein Hansaria, J., speaking for a Bench of two learned Judges has made the pertinent observations concerning the question of waiver of a mandatory provision providing for issuance of notice to the parties sought to be proceeded against by the person giving the notice, in paragraphs 16 and 17 of the Report as under: (SCC p. 430) "16. ... As to when violation of a mandatory provision makes an order a nullity has been the subject-matter of various decisions of this Court as well as of courts beyond the seven seas. This apart, there are views of reputed text writers. Let us start from our own one-time Highest Court, which used to be Privy Council. This question came up for examination by that body in Vellayan Chettiar v. Govt. of the Province of Madras in which while accepting that Section 80 of the Code of Civil Procedure is mandatory, which was the

view taken in Bhagchand Dagadusa v. Secy. of State for India-in-Council it was held that even if a notice under Section 80 be defective, the same would not per se render the suit requiring issuance of such a notice as a precondition for instituting the same as bad in the eye of law, as such a defect can be waived. This view was taken by pointing out that the protection provided by Section 80 is a protection given to the person concerned and if in a particular case that person does not require the protection he can lawfully waive his right. A distinction was made in this regard where the benefit conferred was to serve 'an important purpose', in which case there would not be waiver, (see paragraph 14).

17. This point had come up for examination by this Court in Dhirendra Nath Gorai v. Sudhir Chandra Ghosh and a question was posed in paragraph 7 whether an act done in breach of a mandatory provision is per force a nullity. This Court referred to what was stated in this regard by Mookherjee, J. in Ashutosh Sikdar v. Behari Lal Kirtania ILR at p. 72 and some other decisions of the Calcutta High Court along with one of the Patna High Court and it was held that if a judgment-debtor, despite having received notice of proclamation of sale, did not object to the non- compliance of the required provision, he must be deemed to have waived his right conferred by that provision. It was observed that a mandatory provision can be waived if the same be aimed to

safeguard the interest of an individual and has not been conceived in the public interest."

73. Consequently, it must be held that the provision for six months' notice before initiation of proceedings under Section 21(1) of the Act, though is mandatory and confers protection on the tenant concerned, it can be waived by him. On the facts of the present case there is no escape from the conclusion that the appellant, for reasons best known to it, consciously and being alive to the clear factual situation that the suit was filed on that ground prior to the expiry of six months' notice, did not think it fit to pursue that point any further and on the contrary joined issues on merits expecting a favourable decision in the suit and having lost therein and got an adverse decision did not think it fit even to challenge the decision on the ground of maintainability of the suit while filing an appeal and argued the appeal only on merits and only as an afterthought at the stage of writ petition in the High Court such a contention was sought to be taken up for the first time for consideration. On the facts of the present case, therefore, it must be held that the appellant had waived that contention about the suit being premature having been filed before the expiry of six months from the date of the suit notice."

74. In the case of Martin and Harris (Supra), it is observed that the protection of the notice, being issued to the tenant under the Rental Law, is a personal protection which had been given to him. It

could be waived off and that is what has been observed by the Prescribed Authority in its judgment dated 25.11.2016, para 11, that in view of the absence of there being any pleadings in the written statement, coupled with the fact that the document on record, paper no. 31-Ka, had given the details of the notices issued by the landlord /respondent to the petitioner/tenant, apart from attracting the principle of waiver even otherwise also by the three notices, which are detailed above, the principle of the proviso to Section 21 (1) (a) was complied with by the landlord/respondent, to meet the purpose of notice.

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75. Another judgment, on which, the reliance has been placed by the learned counsel for the petitioner is that as reported in 2001 (8) SCC 540, Anwar Hasan Khan Vs. Mohd. Shafi and other, and particularly, a reference may be had to para 10 of the said judgment relied by him, which is quoted hereunder :-

"10. Keeping in mind the object of the Act to provide safeguards to the tenant, the first proviso to Section 21 of the Act was added to ensure that the unscrupulous litigants do not transfer properties only for the purposes of creating grounds for eviction of the tenant in occupation thereof. The aforesaid proviso, however, was not intended to put any restriction

upon the owners of the property not to transfer it under any circumstances. To ensure that the sale transaction was valid and not mala fide, a statutory bar was created vide the aforesaid proviso for the transferee to seek the eviction of the tenant with respect to such purchased property. The proviso mandates that no application shall be entertained by the prescribed authority on the grounds mentioned in clause (a) of sub-section (1) of Section 21 of the Act unless a period of three years had elapsed since the date of such purchase. It further provides that no application under the said clause shall be entertained unless the landlord had given a notice to the tenant not less than six months before the filing of such application and such notice may be given even before the expiration of a period of three years. The object of the service of the notice is to furnish information to the tenant about the requirement of the landlord in order to enable him to search for an alternative accommodation or to find out as to whether the sale made by his erstwhile owner was genuine and bona fide or not. The proviso and the notice contemplated under it was never intended to be permanent clog on the rights of the purchaser. The period contemplated for not initiating the eviction against the tenant on the ground as specified in clause (a) of sub-section (1) of Section 21 of the Act was intended to be for a period of three years and in no case for more than three years and six months.

Any proceedings initiated for release of building under occupation of tenant on the aforesaid ground after the period contemplated under the aforesaid proviso does not require the service of the aforesaid notice of six months."

76. The fact, which engages consideration under the circumstances of the present case are, that admittedly there have been the proceedings of an SCC Suit, which was instituted way back in 2012. Admittedly, there have been an earlier notices issued to the petitioner/tenant in 2005 and 2006 respectively, and the inception of the release application before the Prescribed Authority on 23rd of January, 2014, would not be of much relevance for the reason being that, apart from the fact that it was instituted after issuance of the notice, it will have no bearing, because it was instituted much after the purchase of the property in November, 2003, by the respondent/landlord, as the proceedings itself was instituted, even much subsequent to the three years period of purchase in November, 2003, in 2014 and, hence, the very purpose of issuance of notices under the 1st Proviso to Section 21 (1) (a) in the circumstances of the present case stood complied with for the reason :-

a) The notices were issued;

b) The reply to the notices were given by the petitioner/tenant;

c) There was no specific plea raised in the written statement in that regard;

d) In view of the effect of the principle of waiver, the said plea cannot be raised for

the first time at the writ stage, under Article 227 of the Constitution of India.

e) The purpose of proviso to Section 21 (1)

(a) was not defeated, because it had never been the case of the petitioner that purchase was malicious;

f) Because of lapse of sufficient period since purchase by landlord/respondent in November, 2003, sufficient period of moratorium to the petitioner was provided for looking of an alternative accommodation;

g) Here in the instant case, particularly when tenant herself had an accommodation under her exclusively title in the same Cantt. area;

77. The learned counsel for the petitioner has yet again referred to a judgment which has been reported in 2009 (5) SCC 399, Mirbhai Kumar Vs. Maya Devi and others, and particularly a reference made by him was to para 4 and 5 of the said judgment, which is quoted hereunder :-

"4. Section 21(1) of the Act so far as relevant reads as follows:

"21. Proceedings for release of building under occupation of tenant.--(1) The prescribed authority may, on an application of the landlord in that behalf, order the eviction of a tenant from the building under tenancy or any specified part thereof if it is satisfied that any of the following grounds exists, namely--

(a)-(b) * * * Provided that where the building was in the occupation of a tenant since before its purchase by the landlord, such purchase being made after the commencement of this Act, no application shall be entertained on the grounds, mentioned in clause (a), unless a period of three years has elapsed since the date of such purchase and the landlord has given a notice in that behalf to the tenant not less than six months before such application, and such notice may be given even before the expiration of the aforesaid period of three years:"

A three years' period becomes relevant when there is a change of ownership. This three years' period is a sort of moratorium intended for the tenant's protection. It is to be noted that the crucial expression in the proviso is "and such notice may be given even before the expiration of the aforesaid period of three years". In other words, notice can be given either before or after the three years' period. After expiry of the three years' period the protection given to the tenant from being evicted has no further relevance. Thereafter it is only the question of notice.

5. Above being the position the decision in Martin & Harris Ltd. case expressed the correct view. Unfortunately, the said decision does not appear to have been placed before the Bench which heard Anwar Hasan Khan case."

78. In fact, by virtue of the implications of para 4 of the said judgment, the finding which has been recorded in Anwar Hassan Khan's case (supra), para 10, of which, has been referred above, was overruled and alternatively, it was held and laid down in para 4 of the said judgment, that the spirit and the necessity of complying with the proviso to Section 21, only becomes relevant, and would have significance, where there is a change of ownership of the property, in question, and the proceedings under Section 21 (1)

(a) is initiated before the expiry of three years' period, from the date of purchase, of the property, and the principle which has been widely laid down, therein is that the notices for termination of the tenancy can even be given by the landlord/respondent even prior to the expiry of period of three years period from the date of purchase, but, however, the actual release application could be considered, i.e. alternatively entertained on merits for adjudication only after three years of the purchase, having been made by the newly inducted landlord.

79. In view of the facts, which have already been dealt with above, this Court is of the opinion, that the peculiar facts and circumstances of the present case, it satisfied the condition of the proviso to Section 21 (1)

(a), as the proceedings itself was instituted much thereafter on 23rd January, 2014, i.e. much beyond the period of three years from the date of purchase, i.e. November, 2003, being made by the landlord/respondent. Hence, the proviso had no applicability, apart from the aspect of waiver by the

petitioner/tenant of the present case who had never raised this plea at the first instance in the written statement.

80. This Court too earlier had an occasion to deal, with an issue with regard to the impact of six months' notice under the proviso of Section 21 (1)

(a), in a judgment which is reported in 2014 (2) UD 546, Shri Tahir vs. Gopal Krishan Verma. The said judgment in its para 11, which is referred to hereunder, this Court had taken a view that the initiation of the proceedings, i.e. its entertainment, under Section 21 (1) (a), could be made only after the expiry of three years period from the date of purchase, in order to maintain the application under Section 21 (1) (a), six months notice was mandated by the first proviso to Section 21 (1) (a) of the Act, which was necessarily required to be served on the tenant, the intention of which, was to provide a moratorium to the tenant to put his house in order, and the service of the notice could even be before the expiry of the period of three years of purchase, also but only the restriction imposed under law was that, the release itself cannot be determined on merits before an expiry of three years period from the date of purchase. That is why, the legislature has used the word "entertained" under proviso. Para 11 of the said judgment of quoted hereunder :-

"11. In view of the judgments of Hon'ble Apex Court in the case of Martin and Harris (supra) and three-Judge Bench in the case of Nirbhai Kumar (supra), I find that settled position

of law is that application under Section 21 (1) can be instituted before expiry of three years period from the date of purchase of property, however, shall be entertained and decided after expiry of three years from the date of purchase. To maintain application under Section 21 (1) of the Act, six months notice, as mandated by first proviso to Section 21 (1) of the Act is required to be served on tenant; such notice can be served either before the expiry of period of three years or after the expiry of period of three years from the date of purchase; and tenant if so wishes can waive such notice. If tenant raises objection that application seeking release of the building is not maintainable in view of non service of six months notice, it cannot be held that tenant has waived the notice. However, if tenant opts not to challenge the maintainability of the application at the earliest and opts to contest the application at its merit without challenging the maintainability of application, it must be held that tenant has waived the requirement of six months notice and in that event, he should not be permitted to take plea of maintainability at the later stage."

81. But, however, the said judgment as rendered in Tahri case (Supra) which was put to challenge before the Hon'ble Apex Court, and the same stood adjudicated vide its judgment as has been reported in 2015 (2) UD 393, Gopal Krishna Vs. Tahir. The principles of an interplay of the notice of six months required therein under law was dealt with by the

Hon'ble Apex Court in the said case, in para 4, 5 and 6, which is referred to hereunder:-

4. The only question that arises for out consideration is whether the requirement indicated under the proviso to Section 21 (1) of the 1972 Act can be accepted as having been complied with by the appellant landlord.

5. Insofar as the purchase of the property is concerned, the same was made on 13.07.2009. It is apparent that the period of three years had elapsed before the appellant filed the ejectment petition on 21.12.2012. Thus viewed, the first condition depicted in the proviso to Section 21(1) can be accepted to have been complied with.

6. The more relevant aspect of the matter is, whether the appellant landlord had given a notice to the tenant, for a period of not less than six months, before such application for eviction was filed by him. It is undoubtedly true, that the appellant could have relied upon the legal notice dated 20.11.2009 if there was no period depicted therein (for seeking ejectment of the respondent thereon). However, since the extract of the legal notice dated 20.11.2009 reproduced above reveals, that the legal notice was for a period of 30 days, inasmuch as, the tenant had been required ".... to quit, vacate and deliver vacant possession of the said premises to my client immediately after the expiry of 30 days of the service of the notice upon you....", we are

satisfied with the second requirement in the proviso under Section 21(1), namely, that "the landlord has given a notice in that behalf to the tenant not less than six months....", cannot be deemed to have been complied with. Since the notice was limited to a period of thirty days, its validity had expired on 19.12.2009. The notice contemplated under the proviso to Section 21(1) extracted above, is a six months notice. In the above view of the matter, we are satisfied that the High Court committed no error in rejecting the claim of the appellant."

82. The marked distinction, which was dealt with by the Hon'ble Apex Court, in the said case was that since the proviso to Section 21 (1) (a) of the Act contemplates six months' notice, wherein, in the circumstances of the said case, the termination of the tenancy by providing the 30 days' notice which was the case therein, would suffice the purpose or not. In para 6 of the said judgment, the Hon'ble Apex Court, has held that since the landlord has given a notice for a period of less than six months for eviction and, hence, while dismissing the SLP has upheld the judgment of Tahir's case (Supra) as referred to above. The reason was that in the said case, the tenant has taken a specific defense of proviso to Section 21 (1) (a), which in the instant case was taken in the Writ Petition, and that too without pleading in the written statement.

83. The aforesaid judgment in the context of notice in the matter of Tahir Vs. Gopal Krishna Verma, was from the perspective of "the period of

notice", which was required to be given under Section 21 (1) (a), and in that case, it was held that the termination of tenancy by giving a thirty days notice, and for the purpose of drawing the proceedings under Act No. 13 of 1972, would not suffice to meet the intention and purpose of Act No. 13 of 1972, which specifically provided for six months notice. Hence, as far as the aforesaid principles of correlated mandatory period of issuance of notice for the period of thirty days or sixty days, what was essential for the purposes of terminating the tenancy under Section 21 (1) (a), was altogether a different perspective which was being then considered by the Hon'ble Apex Court and it was absolutely an alien proceedings, under the facts and circumstances of the present case. Hence, this Court is of the opinion, that it would not apply hereto, under the facts of the present case.

84. Another plea, which has been argued by the learned counsel for the petitioner/tenant, though without any logical basis, was with regard to the six months notice, which according to the landlord/respondent, was already given by the landlord, prior to the filing of the release application. The said plea of six months notices has been raised by the petitioner tenant, for the first time at the writ stage, without the same being simultaneously argued or pressed earlier by her at the first stage of the inception of the proceedings, before the learned Court of Prescribed Authority or even at the instance of second opportunity which she had, before Appellate Court too,

it would amount to be that under these peculiar circumstances, apart from the fact that the said plea of six months, prior notice, was not available to her, it will amount that in fact it was also waived off to be pressed by the petitioner/tenant, herself to be as one of the grounds of defence, at the time of filing of the written statement, while contesting the proceedings of the release on its own merit, concurrently at both the stages. Hence, it will amount to be a waiver of plea of notice under the proviso to Section 21 (1) (a) of the Act, and as per settled law, I am of the considered view, no new plea, the determination of which requires an appreciation of evidence, can be permitted to be raised and pressed, for the first time at the writ stage, under Article 227 of the Constitution of India, carving out altogether a new case.

85. Even otherwise also, I am of the view that the first proviso to Section 21 of the Act No.13 of 1972, which makes issuance of notice of six months as mandatory, is for the purposes, where the tenement itself has been recently purchased by the newly inducted landlord, who intends to initiate the proceedings under Section 21 (1) (a) of Act No.13 of 1972, for the release of the accommodation, within the period of three years prior to filing of release application, as provided under the proviso, where a prior notice of six months was necessarily required to be given. Since it was not the said case, which was governed by these circumstances, which was engaged consideration by way of pleading, in the present release application, the plea of non issuance of notice of six

months was bad, as it was contrary to the case itself and even contrary to the evidence on record. Because, admittedly, it was the consistent case of the petitioner that she was a tenant of the accommodation, in question, ever since last 50 years and since no such plea was ever raised by her before the Prescribed Authority or even before Appellate Authority for that matter, it would amount to that the petitioner has herself had voluntarily waived of her plea, in relation to the effect of proviso to Section 21 (1) (a), though as per the opinion of this Court, even otherwise, it was not applicable under the circumstances of the present case.

86. Consequently, the Writ Petition lacks merit and the same is accordingly dismissed, and as a result thereto, the petitioner/tenant is directed to hand over the vacant and a peaceful possession of the tenement, in question, to the landlord/respondent, within the period as provided by the judgment of the Prescribed Authority from the date of receipt of the certified copy of this judgment.

87. In view of the final judgment, no further order is required on the Modification Application No.4251 of 2020, hence, the same too would stand rejected.

(Sharad Kumar Sharma, J.) Shiv