Ramesh Chandra Kesherwani vs Dwarika Prasad And Anr.

2. The appeal filed by the landlord is directed against the judgment and order of the High Court at Allahabad dated 18th February, 2000 in civil miscellaneous writ petition No. 32705 of 1999 in which the court ordered partial eviction of the tenant, respondent No. 1 herein, from the premises in question. The premises in question was being used for a shop by the tenant. The landlord filed the application for release/eviction of the tenant in 1977 on the ground of bona fide personal requirement under Section 21(1)(a) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (for short 'the Act') alleging, interalia, that he required the premises for setting up a business for himself. In the first round of the litigation, the landlord lost before the prescribed authority as well as before the appellant authority. The High Court on consideration of the matter set aside the judgment/order passed by the forums below and remanded the case to the prescribed authority for fresh consideration. In the second round the prescribed authority accepted the case of bonafide personal requirement pleaded by the landlord and ordered eviction of the tenant on that ground. The appellate authority upheld the order. The High Court in the writ petition filed by the tenant, passed the order of partial eviction. The said order is under challenge in this appeal.

3. The main thrust of the arguments of Shri R.B. Mehrotra, learned senior counsel appearing for the appellant, is that the question of partial eviction from premises is not available to be considered in case of a shop room. The further contention of Shri Mehrotra is that such a question can be raised only in the case of residential premises and not in the case of nonresidential premises. He places reliance on Rule 16(1)(d) and Rule 16(2) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Rules (for short 'the Rules), The second contention of Shri Mehrotra is that assuming such a power is available to be exercised by the authority in case of nonresidential premises also, then such a question which requires enquiry into facts could not have been considered by the High Court for the first time in exercise of writ jurisdiction.

4. The first contention raised by Shri R.B. Mehrotra looked attractive prima facie, but on a closer reading of Section 21 (1) it leaves little scope for doubt that the prescribed authority is vested with the power to order eviction of a tenant from the building under tenancy or any specified part thereof if it is satisfied about existence of the ground specified in the section. No distinction is made between residential and nonresidential premises in the section. Therefore, by interpretation, it cannot be held that the power vested in the authority to order partial eviction is confined to the residential premises only.

5. Regarding Rule 16, it is to be noted that Sub-rule (1) and (2) lay down certain factors for consideration by the prescribed authority which is considering the question of eviction from the premises. Rule 16(1) deals with premises in occupation for the purpose of residence and Rule 16(2) deals with premises in occupation of a tenant for the purpose of any business. Clause (d) of Rule 16(1) provides that where the tenant's needs would be adequately met by leaving with him a part of the building under tenancy and the landlord's needs would be served by releasing the other part, the prescribed authority shall release only the latter part of the building. This provision, in our view, merely reiterates the power vested in the authority to order eviction of the tenant from the premises in entirety or portion of it. No doubt a similar provision is not found in Sub-rule (2) of Rule 16, but that does not affect the power of the authority vested under Section 21 of the Act to order eviction of a tenant from a portion of the premises in a appropriate case if the authority is satisfied that on the facts and circumstances of the case interest of justice will be served by passing such an order. Therefore, the first contention raised by Shri Mehrotra cannot be accepted.

6. Coming to the next contention raised by Shri Mehrotra that even if power to order partial eviction is vested in the authority the same should not have been exercised for the first time by the High Court in exercise of writ jurisdiction. The observations made by the learned single judge in this regard read as follows:

"I seriously considered the matter and taking into consideration the length and width of the shop, to maintain the equities between the parties, instead of remanding the matter to avoid delay, I heard learned counsel for the parties on this matter,

I think it proper that the shop may be partitioned keeping in view the nature of business of the petitioner and the proposed nature of business to be carried on by the landlord-respondent so that the equities may be adjusted."

7. It is apparent from the observations quoted above that the learned single judge has considered the question of partial eviction for the purpose of avoiding delay in bringing the litigation to a close and with a view to do justice between the parties. It is apparent that equitable consideration has weighed with the Court in passing the order. We would also like to note here that the learned single judge appears to have been inclined to remand the case, but in order to avoid delay that would arise incase of remand, was persuaded to pass the order himself in all probabilities on the submission made by learned counsel for the appearing parties. In such circumstances, when an order has been passed on equitable considerations and with a view to do justice between the parties we do not feel that any interference with the order and judgment passed by the High Court is called for.

8. Further in pursuance of the judgment of the High Court the appellants took possession of a portion of the premises in question from the tenants on 18.3.2000 and both the parties have been carrying on business in the respective portions given to them under the judgment of the High Court since about two years.

9. In the result, the appeal is dismissed, but in the circumstances of the case without any order for cost.