Laxmi Chandra Belwal vs Kamla Devi and Others

Sudhanshu Dhulia, J.—This is a review application, which has been filed by the petitioner/tenant along with an application for condonation of delay in filing review application (CLMA No. 679 of 2015). On the grounds urged and in the interest of justice the delay condonation application is allowed. This is a review application, which has been filed by the petitioner/tenant with the prayer that the judgment and order dated 31.12.2013, passed by the learned Single Judge in Writ Petition (M/S) No. 1336 of 2012 be reviewed. The writ petition was filed by the petitioner/tenant against the order of the Prescribed Authority under section 21(1)(a) of the Act XIII of 1972, also upheld in appeal. The petitioner/tenant had lost from both the Courts below. The premises in question admittedly is used for commercial purposes.

The ground raised in review application is that a point was raised in the writ petition that the landlord''s need can be satisfied if only a part of the accommodation be released in his favour, under Rule 16(1)(d) of the Rules framed under the Act XIII of 1972. According to the petitioner/review applicant, there is no specific finding of the Court on (his aspect. Admittedly, the plea of Rule 16(1)(d) was raised for the first time before the High Court.

He thereafter has placed before this Court certain judgments of Hon''ble Apex Court, namely, the case of Smt. Raj Rani Mehrotra v. IInd Addl. District Judge and others 1980 ARC 311 (SC) : 1980 (6) ALR 46 (Sum.), Ramesh Chandra Kesherwani Vs. Dwarika Prasad and Another, , and also one judgment of Allahabad High Court in the case of Pratap Narain Tandon Vs. Abdul Mukatadir, , and submits that the Hon''ble Apex Court has held that a plea though raised for the first time a writ petition must be considered, even though it has not been raised before the prescribed authority or in the Appellate Court. In the second judgment (Pratap Narain Tandon) Hon''ble Court has held that the provisions of Rule 16(1)(d) are applicable to a residential accommodation as well as commercial accommodation.

The relief of section 16(1)(d), was raised for the first time in the writ petition. The learned Counsel for the petitioner Mr. Ishtiyaq Ahmad Khan, argues that there is no finding of the learned Single Judge on this aspect while dismissing the writ petition vide his judgment and order dated 31.12.2013. The order dated 31.12.2013 (sought to be reviewed) has been perused. The learned Single Judge of this Court while dismissing the writ petition has noticed this argument of the petitioner as well its rebuttal by the respondents. The learned Judge, as far as this argument is concerned records in this order:

"Learned Counsel appearing on behalf of the petitioner placed reliance upon Rule 16(1)(d) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972, which 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 need would be served by releasing the other part, the Prescribed Authority shall release only the [other] part of the building, but the prescribed authority has not considered the mandatory provision and therefore the impugned orders are illegal and arbitrary and liable to be set aside on this ground." 5. Its rebuttal was also duly considered and recorded in the above order, which is as under :

"Learned Counsel for the respondents has further contended that Rule 16(1)(d) of U.P. Act No. 13 of 1972, is not attracted in the case, where the premises in question is a commercial building, it only attracts in case of the residential buildings." Therefore, it is wrong to say that this argument of the petitioner was not considered.

The learned Counsel for the petitioner/review applicant, however, would argue that there is no specific finding on Rule 16(1)(d), though the Court did notice the arguments of both the learned Counsel. It is true that the learned Single Judge has not specified as to which proposition of law is correct, however, the fact remains that the writ petition has been dismissed which would mean that the proposition given by the petitioner did not find favour with the learned Single Judge, but it is wrong to say that this argument of section 16(1)(d) was not noticed by the Court at all. A review application has now been filed after almost one year Be that as it may, on merits also there is no occasion for interference. The ground for review as provided under Order XLVII, Rule 1 of the Code of Civil Procedure and extremely limited and such grounds are not available with the petitioner/review applicant. There is also no error apparent on the face of record which may call for interference in the review jurisdiction. The review application is hereby dismissed.