# Mohd. Zafar Khan and others v. District Judge Hardoi and others

- **Citation:** (2011) 2 ILRA 775
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-05-05
- **Bench:** Anil Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohd-zafar-khan-and-others-v-district-judge-hardoi-and-others-41946
- **Pages:** 33

## Headnote

Sri Anurag Narain
C.S.C.

U.P. Urban Building Regulation of Letting
Rent
and
Control
Act
1972-Section
16(1)(d)-comparative hardship-Release
application-bonafide
need-landlord
being unemployed desired to settle his
business on shop in question-during long
period of litigation landlord running his
business on rented shop-tenant enjoying
without making any positive effort of
alternative
accommodation-prescribed
authority
rejected-Appellant
court
allowed
the
appeal
on
ground
no
bonafide
effort
made
by
tenantargument before Writ Court regarding
non
consideration
of
partial-releaseheld-misconceived-commercial
shop
there is no provision of part release-such
question held well settled-no question of
making reference larger bench-petition
dismissed.

Held: Para 30, 59,and 80

Since there is no provision under the Act
or the rule of passing an order of partial
release in respect to non residential
accommodation the provision of Rule
16(1)(d) could not be made applicable in
respect to release of a non residential
accommodation and the law as laid down
776 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
in this regard by Apex Court as well as by
this Court should be applied. In the case
of non residential building the provisions
of Rule 16(1)(d) of Rules for partial
release not applicable, as per the law as
laid down by Full Bench Judgment of this
Court in the case of Ganga Saran Vs. Civil
Judge, Hapur, Ghaziabad and others,
1991 (9) LCD 149 and Sumtibai & others
Vs. Paras Finance Co. Mankanwar W/o
Parasmal Chordia (D) & Ors. 2008 (1)
ARC 504

Thus, from the perusal of said Rule, it is
clear that while come into operation only
if an application is being moved by a
landlord in respect to release of a
residential
premises
under
Section
21(1)(a) of Act. But not in case where a
release application is moved for a non
residential premises, let out for business
purpose and if an application for release
is moved in respect to a building let out.
for business purpose Rule which governs
the filed is Rule 16(2) and in the said
rule there is no provisions provided by
the legislature in respect to part release
of the premises, which is let out for
commercial purpose, and that is the sole
intention and object of the legislature
while framing the Rule 16(2) while
considering an application for release
under Clause (a) of Sub-Section 1 of
Section 21 of U.P. Act 13 of 1972 in
respect to a building let out for the
purpose
of
commercial
/business
purpose.

As per admitted facts of the present
case, petitioners/tenants are enjoying
comforts of a rented shop while the
landlord/respondent
is
doing
his
business from another rented shop and
in this regard, appellate court after
appreciacing facts of the present case
stated to the effect that after filing of
release application tenant had not made
any sincere effort to find out alternate
accommodation.
So
as
per
settled
provision of law that when a release
application is filed before the prescribed
authority, tenant must find out suitable
accommodation,
he
cannot
force
landlord to allow him to run his business
from a shop rented to him.
Case law discussed:
1980 ARC 311; 2005(23) LCD 989; 2005(2)
ARC 243; 2006 (3) ARC 614; 2005(3) LCD
1115; Nathu Ram Vs. VIIth Addl. District
Judge, Varanasi and others; Civil Appeal No.
4244 of 2006 Dinesh Kumar Vs. Yusuf Ali;
(2003) 3 SCC 433; 1988 (2) ARC 385; 1984
(2) ARC 651; 1992 (2) ARC 27; 1999 (2) ARC
80; 1992 (1) ARC 473; 1997 (1) ARC 80; AIR
2003 Supreme Court 2713; 2006 (I) ARC 142;
2002 (7) SCC 273; 1995 Supp (1) SCC 192;
(2007) 6 SCC 143; (2007) 5 SCC 447; 1991 (9)
LCD 149; 2008 (1) ARC 504; (1989) 2 SCC
754; (1998) 5 SCC 637; 2000 (18) LCD 886;
AIR 1992 SC 63; (2003) 5 SCC 480; 2010 (28)
LCD 1688; (2011) 2 SCC 94; (2005) 2 SCC
673; (1995) 2 SCC 129; (1998) 2 SCC 516;
(2008) 15 SCC 464; 1987 RD 308; 2010 (110)
RD 584; 1987 (4) SCC 238; 2008(2) ARC 584;
2004 (2) ARC 365; 1999 (2) ARC 80; 1992 (1)
ARC 473; 1957 (1) All ER

## Text

_Characters 0–39,919 of 107,083. This is a partial read: ask again with offset=39919 for what follows._

2 All] Mohd. Zafar Khan and others V. District Judge Hardoi and others
775
with regard to harm or injury which may
sustain while living with other party.
Reasonableness should not be based on
trivial grounds. It must be based on well
founded material and reasoning.

65. Apprehension with regard to
harm or injury should also be of such
nature which may cause the other side
irreparable loss or injury. Meaning
thereby, the reasonable apprehension
with regard to harm or injury should be
such which may not be bearable to lead
a normal life.

In the present case, there appears to
be no material which may create a
reasonable apprehension in the mind of
the plaintiff appellant resulting into
harm or injury in incident which may
not be bearable or irreparable because of
which the appellant cannot lead a
matrimonial
life
along
with
the
respondent. Liking or disliking shall not
be a ground to decree a divorce.

66. Thus to sum up, the allegations
on record are all of trivial nature and
does not constitute cruelty. Subject to
observation made in the body of present
judgment, appeals lack merit. Hence
dismissed.

No order as to costs.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 05.05.2011

BEFORE
THE HON'BLE ANIL KUMAR,J.

Rent Control No. - 136 of 2009

Mohd. Zafar Khan and others ...Petitioners
Versus
District Judge Hardoi and others

 ...Respondents

Counsel for the Petitioner:
Sri Sanjay Kumar

Counsel for the Respondents:
Sri Anurag Narain
C.S.C.

U.P. Urban Building Regulation of Letting
Rent
and
Control
Act
1972-Section
16(1)(d)-comparative hardship-Release
application-bonafide
need-landlord
being unemployed desired to settle his
business on shop in question-during long
period of litigation landlord running his
business on rented shop-tenant enjoying
without making any positive effort of
alternative
accommodation-prescribed
authority
rejected-Appellant
court
allowed
the
appeal
on
ground
no
bonafide
effort
made
by
tenantargument before Writ Court regarding
non
consideration
of
partial-releaseheld-misconceived-commercial
shop
there is no provision of part release-such
question held well settled-no question of
making reference larger bench-petition
dismissed.

Held: Para 30, 59,and 80

Since there is no provision under the Act
or the rule of passing an order of partial
release in respect to non residential
accommodation the provision of Rule
16(1)(d) could not be made applicable in
respect to release of a non residential
accommodation and the law as laid down
776 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
in this regard by Apex Court as well as by
this Court should be applied. In the case
of non residential building the provisions
of Rule 16(1)(d) of Rules for partial
release not applicable, as per the law as
laid down by Full Bench Judgment of this
Court in the case of Ganga Saran Vs. Civil
Judge, Hapur, Ghaziabad and others,
1991 (9) LCD 149 and Sumtibai & others
Vs. Paras Finance Co. Mankanwar W/o
Parasmal Chordia (D) & Ors. 2008 (1)
ARC 504

Thus, from the perusal of said Rule, it is
clear that while come into operation only
if an application is being moved by a
landlord in respect to release of a
residential
premises
under
Section
21(1)(a) of Act. But not in case where a
release application is moved for a non
residential premises, let out for business
purpose and if an application for release
is moved in respect to a building let out.
for business purpose Rule which governs
the filed is Rule 16(2) and in the said
rule there is no provisions provided by
the legislature in respect to part release
of the premises, which is let out for
commercial purpose, and that is the sole
intention and object of the legislature
while framing the Rule 16(2) while
considering an application for release
under Clause (a) of Sub-Section 1 of
Section 21 of U.P. Act 13 of 1972 in
respect to a building let out for the
purpose
of
commercial
/business
purpose.

As per admitted facts of the present
case, petitioners/tenants are enjoying
comforts of a rented shop while the
landlord/respondent
is
doing
his
business from another rented shop and
in this regard, appellate court after
appreciacing facts of the present case
stated to the effect that after filing of
release application tenant had not made
any sincere effort to find out alternate
accommodation.
So
as
per
settled
provision of law that when a release
application is filed before the prescribed
authority, tenant must find out suitable
accommodation,
he
cannot
force
landlord to allow him to run his business
from a shop rented to him.
Case law discussed:
1980 ARC 311; 2005(23) LCD 989; 2005(2)
ARC 243; 2006 (3) ARC 614; 2005(3) LCD
1115; Nathu Ram Vs. VIIth Addl. District
Judge, Varanasi and others; Civil Appeal No.
4244 of 2006 Dinesh Kumar Vs. Yusuf Ali;
(2003) 3 SCC 433; 1988 (2) ARC 385; 1984
(2) ARC 651; 1992 (2) ARC 27; 1999 (2) ARC
80; 1992 (1) ARC 473; 1997 (1) ARC 80; AIR
2003 Supreme Court 2713; 2006 (I) ARC 142;
2002 (7) SCC 273; 1995 Supp (1) SCC 192;
(2007) 6 SCC 143; (2007) 5 SCC 447; 1991 (9)
LCD 149; 2008 (1) ARC 504; (1989) 2 SCC
754; (1998) 5 SCC 637; 2000 (18) LCD 886;
AIR 1992 SC 63; (2003) 5 SCC 480; 2010 (28)
LCD 1688; (2011) 2 SCC 94; (2005) 2 SCC
673; (1995) 2 SCC 129; (1998) 2 SCC 516;
(2008) 15 SCC 464; 1987 RD 308; 2010 (110)
RD 584; 1987 (4) SCC 238; 2008(2) ARC 584;
2004 (2) ARC 365; 1999 (2) ARC 80; 1992 (1)
ARC 473; 1957 (1) All ER (HL); 2002 (4) All ER
654; AIR 1992 SC 1; AIR SC 96; (1998) 3 SCC
237; (2004) 5 SCC 518; (2003) 5 SCC 590;
AIR 2003 SC 511; (2003) 5 SCC 134; (2002) 7
SCC 273; (2007) 6 SCC 143; (2007) 5 SCC
447; 2008 (1) ARC 504; (1987) 1 SCC 213;
(2003) 2 SCC 111; AIR 2004 SC 4778 : 2004
SCFBRC 454; 1951 AC 737 at P. 761; (1970)
(2) All ER 294; (2003) 4 SCC 753; 1991 (9)
LCD 149; 2005 (2) ARC 899; 2006 (1) ARC
588; 2005 (3) ARC 417; 2007 (2) ARC 62;
2009 (2) ARC 715; 2009 (2) ARC 740; 2009
(3) ARC 269;

(Delivered by Hon'ble Anil Kumar,J. )

1. Heard Sri Shafiq Mirza, learned
counsel for petitioners, Sri Mohd. Arif
Khan, Senior Advocate, assisted by Mohd.
Adil Khan, counsel for respondents.

2. By means of present writ petition,
petitioners have challenged order dated
03.09.2009 passed by District Judge,
Harodi in Rent Appeal No. 2 of 2008,
Mohd. Waris Khan Vs. Mohd. Zafar
thereby allowing appeal of the landlord in
respect to release of a shop.
2 All] Mohd. Zafar Khan and others V. District Judge Hardoi and others
777

3. Factual matrix of the present case
are that Mod. Waris Khan/landlord moved
an application for release under Section
21(1)(a) of U.P. Act 13 of 1972 inter alia
stating therein that he is owner/landlord of
shop situated at Mohalla Vehra Saudagar
West, Bara Chauraha, Pargana Bangar,
Tehsil and District Hardoi, purchased from
its previous owner Rahul Asthana and
Kapil Asthana by registered sale deed
05.07.1997, petitioner are tenant in the said
shop on a monthly rent of Rs. 120/-.

4. In the release application,
landlord/respondent pleaded that his family
is consisting of himself and two children.
He failed to get any employment, so the
shop in question purchased by him
thereafter, gave notice to tenant/petitioner
through his counsel Sri Shiv Sahai Misra
on 14.03.2000 served upon them but they
did not vacate the shop.

5. It is further pleaded in release
application that landlord also apprised
tenants the shops are available at Shankar
Market near Arya Kanya Pathshala, Hardoi
but no heed has been paid by tenants in this
regard finally they refused to vacate the
shop in question which is bona fidely
required by him in order to run his
business to earn livelihood of his family,
so release application filed.

6. Petitioner/tenant contested release
application by filing written statement
denying the need of the landlord, however
admitted that he is owner of the shop in
question. In the written statement, it has
been pleaded on behalf of petitioner that
they filed suit for permanent injunction
(suit No. 276 of 1997, Shoib Khan Vs.
Kapil Asthana and others) in which
temporary injunction granted by court
concerned on 21.05.1997 served on the
landlord/respondent on 24.05.1997. In
spite of knowing the said fact landlord
purchased the shop in question with
ulterior motive to evict them, further if the
landlord has genuine need of shop he
should not purchase the shop in question
which is under dispute subject to litigation
rather purchase a vacant shop which is
itself goes to show that the need of the
landlord is neither genuine nor bona fide.

7. In written statement, it has been
further pleaded that the said injunction suit
(Suit No. 276 of 1997) decreed in their
favour thereafter release application filed,
and the landlord is carrying out his
business of repair Torch, Pressure Cooker,
Stove etc. in a shop which is nearby
situated to disputed shop under the tenancy
of his father Sri Saukat Ali Zamal. Further
during the pendency of release application
Sri Saukat Ali Zamal died, as such by way
of amendment it was brought on record by
the petitioner, now landlord/respondent
become tenant of the shop initially under
the tenancy of his father, as his other
brothers are doing separate business. So,
there is no bona fide need exist on the part
of landlord to get shop in dispute release in
his favour.

8. In addition to abovesaid facts, it
was also brought on record by tenants that
they
had
searched
for
alternate
accommodation/shop in Shanker Market
where they are doing business of General
Merchant from the shop in dispute in the
name and style of Roshan Store which is
only source of income of their family but
they are unable to get the same.

9. After exchange of pleadings,
evidences etc. the Prescribed Authority in
order to decide P.A. Case No. 16 of 2001,
framed three issued, namely"-
778 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

(1) Kya Prarthi ki prashangat dukan
kis aawashyakta hai?

(2) Kya Prarthi ki ukt aawashyakta
hai?

(3)
Prashngat
dukan
ke
babat
tulnatmak kathinai kis paksh ko adhik
gohi.

Prescribed Authority on the basis of
material on record in respect to issue No. 1
held that applicant/landlord is need of shop
in question. However, whether the need of
the said shop is bona fide or not shall be
decided while deciding the other issues.

10. So far as issue No. 2 is
concerned, the Prescribed Authority had
come to the conclusion that as per the
pleadings of landlord he is an unemployed
youth and if he is in need to get shop in
question to establish his business, then that
in circumstances he should have purchased
a vacant shop and not a shop in dispute in
respect to which Civil Court passed an
decree in Suit No. 276 of 1997.
Accordingly, Prescribed Authority held
that need of the landlord/respondent is not
bona fide and genuine.

11. So far as issue No. 3 is
concerned, Prescribed Authority had come
to the conclusion on the basis of material
on record that if need of landlord is a bona
fide and genuine in order to carry out
livelihood then in that circumstances he
should have purchase an undisputed vacant
shop in Shanker Market not shop in
dispute. Further Prescribed Authority also
given a finding that tenants, during the
pendency of the release matter made an
effort
to
search
out
an
alternate
accommodation and in this regard they
filed an affidavit (paper No. 63Ga) but
unable
to
search
any
alternate
accommodation. So the comparative need
of the tenant is more genuine and bona fide
in comparison to landlord and by order
dated
29.04.2008
dismissed
release
application,
moved
by
landlord/respondent.

12. Aggrieved by the same, Modh.
Waris Khan/landlord filed rent appeal
(Rent Appeal No. 2 of 2008) by order
dated
03.09.2009,
the
District
Judge/Appellate Authority allowed appeal.
While allowing the same, findings given
by appellate authority are summarized as
under:-.

(a) "For the purpose of release of an
accommodation under Section 21(1)(a) of
the Act, the landlord has not only to prove
that he has a need of the tenanted
accommodation but he must also prove
that his need is bonafide and genuine. A
mere desire to have an accommodation
which is under the occupation of a tenant,
is not sufficient.

(b) It has been held that occupancy of
landlord in the capacity of tenant is itself
sufficient indicative of the fact that
landlord needs additional accommodation
to run his business because existing
accommodation which does not fulfill the
requirement of the landlord cannot be said
to be alternative accommodation. The
respondents have drawn the attention of
this court towards the admission of the
appellant in which he has admitted that his
brothers have independent business and he
looks after the business of his father. Even
if this admission of the appellant is taken
into consideration, his need for the
disputed shop would not be held to be
malafide in view of the law laid down by
the Hon'ble High Court.
2 All] Mohd. Zafar Khan and others V. District Judge Hardoi and others
779

(c) The learned Prescribed Authority
while deciding issue of comparative
hardship, has held that the respondents
shall suffer greater hardship as compared
to the appellant in case the release
application is allowed. This finding has
been arrived at on the ground that the
respondents shall suffer more hardship as
they had been carrying on business since
1963,
they
had
no
alternative
accommodation to shift their business and
they could not get any other shop on rent in
spite of efforts made by them. This finding
is again contrary to the facts and law both.
There is no evidence to prove that the
respondents actually made any effort to
search any other shop on rent. They have
failed to show as to what efforts were
made by them since they got the notice to
vacate the shop. It is also important to
mention
here
that
the
respondents
suggested several shops for purchase by
the appellant but did not themselves
purchase any shop for their business. It is
also noteworthy that whenever a tenant is
asked to vacate the tenanted premises, he
suffers some hardship but if the release
application is decided keeping in view this
hardship, no application for release of any
landlord can ever be allowed.

(d) Proceedings of release are going
on since the year 1997 and appeal from
2001 and after a gap of about seven years,
from the date of filing of appeal no efforts
made by tenant to search alternate
accommodation.
Only
on
allotment
moved, that too without mentioning the
details of the property.

(e)
Having
gone
through
the
pleadings, evidence of the parties and
various pronouncements on the subject, I
am of the considered opinion that the
appellant has been able to prove his
bonafide need for the shop in dispute and
the appellant shall suffer greater hardship
as compared to the respondents if
application for release is rejected."

13. Aggrieved by order dated
03.09.2009
passed
by
Appellate
Authority/District Judge, Hardoi in Rent
Appeal No. 2 of 2008 (Md. Waris Vs.
Mohd. Zafar and others) petitioners filed
the present writ petition before this Court.

14. Sri Shafiq Mirza, learned counsel
for petitioner while assailing impugned
order submits that the landlord/respondent
has no need of the shop in question from
which petitioners are doing their business
in case if he has any genuine and bona fide
need then he should not purchase the shop
in question in respect to which orders
passed in Regular Suit No 276 of 1997 but
ought to have purchased a vacant shop in
the same market where the shop in
question is situated hence need of the
tenants are is more genuine and bona fide
in comparison to the landlord rightly held
by the Prescribed Authority but on wrong
assumption and presumption set aside by
appellate authority.

15. It is also submitted by Sri Shafiq
Mirza, counsel for petitioner that landlord
respondent after death of his fatherdoing
business of repairing of Torch, Pressure
Cooker, Stove etc. from shop situated at a
very short distance to disputed shop
originally under tenancy of his father and
after his death neither any brother of
landlord come forward with a plea that
they also need shop in dispute to do
business nor any eviction proceeding
initiated by owner of said shop, as such
need of tenant to retain shop in question
from which they are doing their business
since the year 1963 is more genuine and
780 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
bona fide if evicted they will suffer greater
hardship
in
comparison
to
landlord/respondent.

16. Next submission made by learned
counsel for petitioner is that appellate court
while
passing
impugned
judgment
reversed finding recorded by trial court
without discussing any material evidence
etc. available on record with respect to
bona fide and comparative hardship
between parties thus the same is illegal
arbitrary and against settled proposition of
law "live and let live".

17. Lastly, it has been argued by Sri
Shafiq
Mirza,
learned
counsel
for
petitioner that neither Prescribed Authority
nor
appellate
authority
considered
regarding
"Part
Release"
of
accommodation in question and if said
factor is taken into consideration and part
of the accommodation in possession of
petitioner is released as per provisions as
provided under Rule 16(1)(d) read with
Rule 16(2) of the Rules framed under U.P.
Act XIII of 1992, the same shall satisfy
alleged need of landlord and in this regard
he
placed
reliance
on
following
judgments:-

1.Smt. Raj Rani Mehratra Vs. IInd
Addl. District Judge and others, 1980
ARC 311.

2.Badrinath Chunnilal Mutata 2005
(23) LCD 989

3.Pratap Narain Tandon Vs. Abdul
Mudkar, 2005 (2) ARC 243

4.Swarj Kumar (Sir) Vs. Arvind
Kumar, 2006 (3) ARC 614

5.Nand Kishore Awasthi Vs. Addl.
District Judge, Court No. 3, kanpur
Nagar and others 2005 (3) LCD 1115

6.Nathu
Ram
Vs.
VIIth
Addl.District
Judge,
Varanasi
and
others.

7.Unreported judgment dated 6th
May, 2010 passed by Apex Court in
Civil Appeal No. 4244 of 2006 Dinesh
Kumar Vs. Yusuf Ali.

18. On the basis of abovesaid fact,
Sri Shafiq Mirza, counsel for petitioner
submits that order passed by appellate
court illegal, arbitrary, liable to be set
aside.

19. Sri Modh. Arif Khan, Senior
Advocate,
appearing
on
behalf
of
landlord/respondent submits that in the
instant
case,
landlord
respondent
admittedly doing a business from a shop
initially under tenancy of his father now
under his tenancy so his need is bona fide
and genuine to get shop in question release
in his favour.

20. Sri Mohd. Arif Khan, further
submits that Prescribed Authority although
come to the conclusion that there is a need
of landlord to get shop in question but
thereafter on misinterpretation of facts and
document on record held that need of
landlord/respondent is not genuine and
bona fide because he purchased shop in
dispute under litigation and not purchased
vacant shop to carry out livelihood of his
family, the said finding are wrong and
incorrect cannot sustain.

21. Moreover, the finding given by
Prescribed Authority that tenant made an
effort
to
search
an
alternate
2 All] Mohd. Zafar Khan and others V. District Judge Hardoi and others
781
accommodation but no shop is available to
them is also not correct fact because no
genuine and bona fide effort have been
made by the tenant to search an alternate
accommodation
since
the
release
application is moved and once there is no
bona fide effort made by tenant to search
an alternate accommodation after moving
of release application their comparative
hardship and need cannot be considered in
comparison
to
need
of
the
landlord/respondent. So the judgement
passed by Prescribed Authority is contrary
to law and rightly set aside by appellate
court holding.

22. Sri Mohd. Arif Khan, Senior
Advocate further submits that finding
given by appellate court that once it is
established that the landlord is doing his
business from a tenanted shop and tenant
has not made any effort to search for an
alternate accommodation he cannot dictate
terms to the landlord to carryout his
business in a tenanted shop or to take any
accommodation on rent and in the present
case, appellate court has also given a
finding that proceeding release are going
on since the year 1997, no genuine effort is
made by tenant to search alternate
accommodation
only
an
allotment
application
moved
that
too
without
mentioning the details of property, so the
same is futile exercise on the part of
tenants they cannot derive any benefit from
the said act.

23. Accordingly, order passed by
appellate court on the basis of said material
on record that need of landlord in
comparison to tenant is more genuine and
bona fide is perfectly valid and need no
interference by this Court while exercising
power of judicial review under Article 226
of the Constitution of India.

24. Sri Mohd. Arif Khan, further
submits that so far as argument advanced
by Sri Shafiq Mirza, learned counsel for
petitioner that while considering the
application for release moved by a landlord
under Section 21(1)(a) in respect to a
commercial space authorities under Rent
Control Act are bound to consider the
matter in respect to partial release is
wholly incorrect and wrong argument
because the provisions of Rule 16 (1) (d)
of
Uttar
Pradesh
Urban
Buildings
(Regulation of Letting, Rent and Eviction)
Act, 1972 (hereinafter referred to as the
rules) applies only in respect to residential
buildings and the Rule 16(1)(d) does not
deal with an accommodation let out for
commercial purpose but Rule 16(2) of the
Rules deals in respect to commercial
building there is no provisions in the said
rule, for partial release of the premises.

25. In so far as the arguments
advanced by the counsel for the petitioners
that the opposite party No. 1, while
allowing appeal has to considered whether
the partial release of the shop will not meet
the
requirement
of
the
landlord
(respondent No. 2) is concerned, there is
no pleadings or basis for the same and
more over, the width of the shop facing
road is 12 feet and depth is 21 feet and
appellate authority taking into account the
totality of the facts and circumstances of
the case, after holding that the need of
landlord for the shop in dispute bona fide,
allowed the appeal the said action is in
accordance to the law as laid down in the
following judgments:-

1. Balwant Singh & others Vs.
Anand Kumar Sharma and others,
(2003) 3 SCC 433.
782 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

2. Vishwanath Mehta & Others Vs.
District Judge, Varanasi and others,
1988 (2) ARC 385.

3. Smt. Chandra Devi and others
Vs. IIIrd ADJ, Nainital & others , 1984
(2) ARC 651

4.
Mangna
Nand
Bhat
Vs.
Additional District Judge, Dehradun
and others 1992 (2) ARC 27.

5. Kirshana Murari Lal Vs. IIIrd
ADJ, Badaun & others, 1999 (2) ARC
80.

6. Ramji Lal Vs. 1st Addl. District
Judge, Muzaffarnagar and others, 1992
(1) ARC 473.

7. Lalta Prasad Vs. District Judge,
Etah and others, 1997 (1) ARC 80

26.

He
further
submits
that
arguments advanced by the counsel for the
petitioners that by applying the principles
of live and let live, is in correct in view of
the law as held by the apex court in the
case of Badri Narayan Chunni Lal
Bhutada Vs. Govind Ram, Ram Gopal
Mundada in AIR 2003 Supreme Court
2713 and by this Court in the case of Hira
Lal Vs. Vith Additional District Judge,
Bareilly & others reported in 2006 (I)
ARC 142, wherein it was held that if the
petitioner failed to show whether he has
made any effort to look for an alternative
accommodation during the pendency of the
proceedings then he has no right to plead
hardship, and the balance of comparative
hardship goes in favour of the landlord.

27. Sri Mohd. Arif Khan, further
submits that Rule 16(1) (d) applies to
residential accommodation where the
question of part release can be considered
while comparing respective hardship of the
parties but the said provision does not find
mention in Rule 16(2) of the Rules. So as
per basic rule for interpretation of the
words and phrases as propounded by the
Apex Court in the case of Union of India
and another Vs. Hansoli Devi and
another, 2002 (7) SCC 273, the cardinal
principle of construction of statute is that
when the language of statue is plain and
unambiguous then the court must give
effect to the words used in the statute and it
would not be open to the court to adopt a
hypothetical construction on the ground
that such construction is more consistent
with the alleged object and the policy of
the Act, as per law laid down by the Apex
Court in the case of Dr. Ganga Prasad
Verma Vs. State of Bihar and others,
1995 Supp (1) SCC 192 and in the case of
Promoters & Builders Assn. Of Pune
Vs. Pune Municipal Corpn. and others,
(2007) 6 SCC 143 that while interpreting a
statute, efforts should be made to give
effect to each and every word used by the
legislature, courts always presume that the
legislature - inserted every part of a statute
for a purpose and the legislative intention
is that every part of the statute should have
effect if the language of the Act is clear
and explicit, could have give effect to it,
whatever may be the consequences for in
that case the words of the statute speak the
intention of the legislature.

28. It is further submitted on behalf
of the landlord that by applying the
doctrine of harmonious construction the
entire statute must be first read as a whole
then Section by Section, Clause by Clause,
Phrase by Phrase and word by word. The
relevant provision of the statute, must,
thus, be read harmoniously.
2 All] Mohd. Zafar Khan and others V. District Judge Hardoi and others
783

29. It is also well settled that the role
of the court is not to legislate but to
interpret the provisions of the statue and to
iron out the crease the departure from the
literal rule should only be done in very rare
cases. Recourse can not be had to principle
of interpretation other than literal rule
where words of statute are clear and
unambiguous. In support of said argument,
reliance placed on the judgment by the
Apex Court in the case of Southern
Petrochemical Industries Co. Ltd., Vs.
Electricity Inspector & ETIO and others
(2007) 5 SCC 447, that a court would so
interpret a provision as would help
sustaining the validity of law by applying
the doctrine of reasonable construction
rather than making it vulnerable and
unconstitutional by adopting rule of
litralegis.

30. Since there is no provision under
the Act or the rule of passing an order of
partial release in respect to non residential
accommodation the provision of Rule
16(1)(d) could not be made applicable in
respect to release of a non residential
accommodation and the law as laid down
in this regard by Apex Court as well as by
this Court should be applied. In the case of
non residential building the provisions of
Rule 16(1)(d) of Rules for partial release
not applicable, as per the law as laid down
by Full Bench Judgment of this Court in
the case of Ganga Saran Vs. Civil Judge,
Hapur, Ghaziabad and others, 1991 (9)
LCD 149 and Sumtibai & others Vs.
Paras Finance Co. Mankanwar W/o
Parasmal Chordia (D) & Ors. 2008 (1)
ARC 504

31. Sri Shafiq Mirza, learned counsel
for petitioner in rebuttal submits that in
view of the authorities cited by him of the
Hon'ble Apex Court as well of this Court
no doubt when an application for release
moved in respect to commercial/business
space let out by a landlord/owner the rule
which governs filed while adjudicating the
said application is Rule 16(2) of Rules,
however even if there is no of the said
provisions in respect to partial release of
commercial/business space let out, but as
per the law which are referred by him it
does not affect the power of authorities
vested under Section 21 of the Act to order
partial eviction of a tenant from the portion
of non-residential premises in appropriate
circumstances of the case and interest of
justice will sub-serve by such an order. So
this Court cannot take a different view and
should consider that matter in regard to
partial release of the shop in dispute in the
instant case. In support of the said
argument Sri Shafiq Mirza, counsel for
petitioner placed reliance on the following
judgment:-

Apex Court in the case of Union of
India and another Vs. Raghubir Singh
(Dead) by LRS. Etc. (1989) 2 SCC 754,
in para No. 27 and 28 (relevant portion
quoted) held as under:-

"It is in order to guard against the
possibility of inconsistent decisions on
points of law by different Division Benches
that the rule has been evolved, in order to
promote consistency and certainty in the
development
of
the
law
and
its
contemporary status, that the statement of
the law by a Division Bench is considered
binding on a Division Bench of the same or
lesser number of Judges. This principle
has been followed in India by several
generations of Judges.

We
are
of
opinion
that
a
pronouncement of law by a Division Bench
of this Court is binding on a Division
784 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
Bench of the same or a smaller number of
Judges, and in order that such decision be
binding, it is not necessary that it should
be a decision rendered by the Full Court
or a Constitution Bench of the Court."

In the case of State of Tripura Vs.
Tripura Bar Association and others,
(1998) 5 SCC 637, it is held that as under:-

"We are of the view that the Division
Bench of the High Court which has
delivered the impugned judgment being a
coordinate Bench could not have taken a
view different from that taken by the
earlier Division Bench of the High Court
in the case of Durgadas Purkayastha. If
the latter Bench wanted to take a view
different than that taken by the earlier
Bench, the proper course for them would
have been to refer the matter to a larger
bench."

In the case of Brijendra Kumar
Gupta and others Vs. State of U.P. and
others, 2000 (18) LCD 886, in para Nos.
8.6 and 8.8 (relevant portion quoted) held
as under:-

8.6. We remind ourselves of the
following observations made by a 5 Judges
Constitution Bench of the Supreme Court
in
Sub-Committee
of
Judicial
Accountability v. Union of India and
others : AIR 1992 SC 63 :

".....Indeed, no coordinate bench of
this Court can even comment upon, let one
sit in judgment over, the discretion
exercised or judgment rendered in a cause
or matter before another co-ordinate
bench..... Judicial propriety and discipline
as
well
as
what
flows
from
the
circumstances that each Division Bench of
this Court functions as the Court itself
renders any interference by one bench with
a Judicial matter before another lacking as
much in propriety as in jurisdiction."

The
principle
enunciated
aforementioned equally applies to a High
Court as it exercises its judicial functions
through its different Benches--Single or
Division Bench or Full Bench or Special
Bench and while doing so each Bench
constitutes the High Court itself.

8.8 The principle laid down by the
Apex Court was also held to be applicable
to the High Courts as well as by the Apex
Court itself in Sri Venkateswara Rice,
Ginning
and
Groundnut
Oil
Mill
Contractors Co. etc. v. State of Andhra
Pradesh and others, : AIR 1972 SC 51. in
following words :

"It is strange that a coordinate Bench
of the same High Court should have tried
to sit on judgment over a decision of
another Bench of that Court. It is
regrettable that the learned Judges who
decided the latter case overlooked the fact
that they were bound by the earlier
decision. If they wanted that the earlier
decision should be reconsidered, they
should have referred to the question in
issue to a larger Bench and not to ignore
the earlier decision."

In the case of Rajasthan Public
Service Commission and another Vs.
Harish Kumar Purohit and others,
(2003) 5 SCC 480, Hon'ble Supreme Court
in para Nos. 12 and 13 (relevant portion
quoted) held as under:-

Para No. 12 - Unfortunately, the
Division Bench hearing the subsequent
applications did not even refer to the
conclusions arrived at by the earlier
2 All] Mohd. Zafar Khan and others V. District Judge Hardoi and others
785
Division Bench. The earlier decision of the
Division Bench is binding on a Bench of
coordinate strength. If the Bench hearing
matters subsequently entertains any doubt
about the correctness of the earlier
decision, the only course open to it is to
refer the matter to a larger Bench.

Para No. 13 - If the latter Bench
wanted to take a view different than that
taken by the earlier Bench, the proper
course for them would have been to refer
the matter to a larger Bench. We have
perused the reasons given by the learned
Judges for not referring the matter to a
larger Bench. We are not satisfied that the
said reasons justified their deciding the
matter and not referring it to the larger
Bench.

In the case of Sant Lal Gupta and
others Vs. Modrn Co-operative Group
Housing Society Ltd. and others, 2010
(28) LCD 1688, in para No. 19, it is held
as under:-

Para 19- The earlier decision of the
coordinate bench is binding upon any
latter coordinate bench deciding the same
or similar issues. If the latter bench wants
to take a different view than that taken by
the earlier bench, the proper course is for
it to refer the matter to a larger bench.

In the case of Safia Bee Vs. Mohd.
Vajahath Hussain alias Fasi, (2011) 2
SCC 94, in para Nos. 27 and 29 (relevant
portion quoted) held as under:-

Para No. 27 - The learned Judges
were not right in over-ruling the statement
of the law by a Co-ordinate Bench of equal
strength. It is an accepted rule or principle
that the statement of the law by a Bench is
considered binding on a Bench of the same
or lesser number of Judges. In case of
doubt or disagreement about the decision
of the earlier Bench, the well accepted and
desirable practice is that the later Bench
would refer the case to a larger Bench.

Para No. 29 - In Central Board of
Dawoodi Bohra Community and Anr. v.
State of Maharashtra and Anr.: (2005) 2
SCC 673, (para 12), a Constitution Bench
of this Court summed up the legal position
in the following terms:

(1) The law laid down by this Court in
a decision delivered by a Bench of larger
strength is binding on any subsequent
Bench of lesser or co-equal strength.

(2) A Bench of lesser quorum cannot
disagree or dissent from the view of the
law taken by a Bench of larger quorum. In
case of doubt all that the Bench of lesser
quorum can do is to invite the attention of
the Chief Justice and request for the matter
being placed for hearing before a Bench of
larger quorum than the Bench whose
decision has come up for consideration. It
will be open only for a Bench of co-equal
strength to express an opinion doubting the
correctness of the view taken by the earlier
Bench of co-equal strength, whereupon the
matter may be placed for hearing before a
Bench consisting of a quorum larger than
the one which pronounced the decision
laying down the law the correctness of
which is doubted.

32. Sri Shafiq Mirza, learned counsel
for petitioner further submits that in view
of the authorities, as well as mention
hereinbelow, this Court has no option but
to take the view taken by a coordinate
bench in the matter in question and is to be
held that while deciding an application for
release
under
Section
21(1)(a),
the
786 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
authorities under Rent Contro Act have
power
for
partial
release
of
the
accommodation let out for non residential
purposes and in case if this Court defers
from the said authority then in that
circumstances the only course open is to
refer the matter to larger bench as held in
the case of Rajesh Kumar Verma Vs.
State of M.P. And others, (1995) 2 SCC
129, in para No. 5 (relevant portion)
quoted as under:-

"Para No. 5 - In the group of Writ
Petitions which came up for decision
before the Division Bench of the High
Court, the High Court placing special
reliance on this Court's decision in
Director General Telecommunication and
Anr.
v.
T.N.
Peethambaram:
(1987)ILLJ438SC
,
came
to
the
conclusion that it was not open to the State
Government to reduce the minimum
qualifying marks in General English and
the seats made available to SC/ST
candidates by virtue of the said relaxation
would revert to the General category
students. It may here be mentioned that in
taking this view the Division Bench
departed from the view taken by another
Division Bench of the same High Court in
M.P. No. 3164/92 (Amrit Bajpai and Anr.
v. State of M.P. and Ors.) dated 15th
December, 1992, which judgment is
produced as Annexure HI at page 42 of the
paper book. This decision was brushed
aside on the plea that it had not taken into
consideration the decision rendered by this
Court in Peethambaram's case. Needless
to say that in such a situation the proper
course is to refer the matter to a larger
bench, a course which the subsequent
Division Bench did not follow.

In the case of State of A.P. Vs. V.C.
Subbarayudu and others, (1998) 2 SCC
516, in para No. 10 (relevant portion)
quoted as under:-

Para 10 - affirmed in appeal earlier
by Division Bench, the second Division
Bench could not have dismissed the writ
petitions and set aside the judgment and
order of the learned single judge. We are
not going into the validity of the orders
passed by the two Division Benches as SAS
Accountants did not come up in appeal in
this Court against the order of the Division
Bench subsequently made dismissing the
writ petitions. We would, however, only
like to say the second Division Bench if it
was of the opinion that it had to take a
different view than that taken by the first
Division Bench the matter should as a
matter of propriety have been referred to a
larger bench. It is certainly a question of
self-discipline which court should observe.

In the case of Lilawati Agarwal
(Dead) by LRS and others Vs. State of
Jharkhand, (2008) 15 SCC 464, wherein
it is held that if a coordinate bench
disagree with a law already held by a
coordinate bench then the only course is
open is to refers to a large bench and the
proposition.

In the case of Nihal Singh Vs. Board
of Revenue, 1987 RD 308, where it a
Division Bench of this Court held that if a
court of concurrent strength takes a
contrary view as laid down by earlier
bench of same strength then the only
course open is to refer the matter to a
larger bench. Again reiterated by a
Division Bench of this Court in the case of
Deena Nath and others Vs. Deputy
Director of Consolidation, Ballia and
others, 2010 (110) RD 584,
2 All] Mohd. Zafar Khan and others V. District Judge Hardoi and others
787

33. I have heard counsel for parties
and gone through record.

Rent Control Legislations are heavily
loaded in favour of the tenants treating
them as weaker sections of the society
requiring legislative protection against
exploitation and unscrupulous devices of
greedy landlords. The Legislative intent
has to be respected by the Courts while
interpreting the laws. But it is being
uncharitable to Legislatures if they are
attributed with an intention that they lean
only in favour of the tenants and while
being fair to the tenants go to the extent of
being unfair to the landlords. The
Legislature is fair to the tenants and to the
landlords - both. The Courts have to adopt
a reasonable and balanced approach while
interpreting Rent Control Legislations
starting with an assumption that an equal
treatment has been meted out to both the
sections of the society. In spite of the
overall balance tilting in favour of the
tenants, while interpreting such of the
provisions as take care of the interest of
landlord the Court should not hesitate in
leaning in favour of the landlords.