JUDGMENT
Prafulla C. Pant, J.
1. By means of this writ petition, moved under Article 226 of the Constitution of India, the petitioner- tenant has sought writ in the nature of certiorari for quashing the orders dated 20.12.2002 and 24.4.1997 passed by the respondent No. 1 and 2 respectively, on the release application filed by respondent No. 3 under Section 21 of U.P. Act No. 13 of 1972.
2. Brief facts of the case, as narrated in the writ petition, are that the petitioner is the tenant of shop bearing No. 54/44 situated in Akhara Mohalla, Dehradun. The tenancy started in the year 1931 when the petitioner’s father entered in the shop as a tenant he died on 6.12.1968 leaving behind the petitioner who inherited the tenancy. The petitioner is running a tea stall in one room of the shop and in another room (Khan) business of cycle mart is being run by the petitioner’s children. Respondent No. 1 purchased the shop on 16.10.1981 and about nine years there after moved a release application (P.A. Case No. 26 of 1991) under Section 21 of U.P. Act 13 of 1972 on 7.2.1991 before the Prescribed Authority, Dehradun. The learned Prescribed Authority after taking the evidence and hearing the parties, passed an order dated 24.4.1997 (copy of order at Pages 104 to 112 of the record of this writ petition) directing release of a part of the shop in favour of the respondent No. 1. Aggrieved by the said order, the petitioner as well as the respondent No. 3 preferred appeals (RCA No. 30 of 1997 and RCA No. 36 of 1997) before learned District Judge, Dehradun. Both the rent control appeals were taken up together by Additional District Judge, FTC-3, Dehradun who disposed of the appeals by a common judgment and order dated 20.12.2002 (copy of judgment at Pages 114 to 125 of the record of this writ petition) whereby the release application was allowed in respect of whole of the shop. By said order, RCA No. 30 of 1997 i.e. preferred by the landlord was allowed and RCA No. 36 of 1997 i.e. preferred by the tenant was dismissed. Aggrieved by said order, the tenant has challenged both the orders of the prescribed authority as well as that of the appellate authority through this writ petition on the ground that the impugned orders passed by the respondent Nos. 1 and 2 is perverse. It is also alleged in the writ petition that the learned Prescribed Authority as well as the appellate Court failed to consider the hardship of the petitioner. It is further alleged that both the Courts below have wrongly reached to the conclusion as to bonafide need of landlord. It is also alleged in the writ petition that the respondent No. 3 owns other properties in the same mohalla on Ajit Prasad Marg which is purchased by him in the name of his wife. It is further alleged that the petitioner got vacant position of said shop No. 46/1 Ajit Prasad Marg purchased in his wife’s name and, before filing the writ petition, let it out to one photographer. It is also alleged that the wife of respondent No. 3 is in service and as such the need shown by him, is not genuine. As to the hardship it is stated in the writ petition that petitioner’s problem of running the business elsewhere is much more than that of the petitioner.
3. Respondent No. 3 filed a counter affidavit and contested the writ petition admitting that the shop No. 46/1 on Ajit Prasad Marg, was owned and let out by his wife. But it is stated that the need of the respondent No. 3 cannot be rejected on the ground that his wife owned and let out the shop. It is denied by the respondent No. 3 if the said shop was let out by his wife just before filing the release application in question. In supplementary counter affidavit, the respondent No. 3 has stated that this wife has moved release application for the shop No. 41 situated on Ajit Prasad marg.
4. In rejoinder affidavit the petitioner has stated that wife of respondent No. 3 was given the shop in the year 1980 in a vacant condition. It is further stated in the said rejoinder affidavit that one Mr. Somesh Verma was made to occupy the said shop by the wife of respondent No. 3 in violation of provisions of Act No. XIII of 1972 as such the same shop can be treated to be a vacant shop. It is further stated in supplementary rejoinder affidavit that son of respondent No. 3 is settled in Delhi and the need shown by the landlord is not a genuine need.
5. I heard learned Counsel for the parties and perused the record.
6. Admittedly, the petitioner is tenant while respondent No. 3 is the landlord of the shop in question. Both the Courts below have found need of the landlord of the shop in question as genuine and bonafide. The Prescribed Authority allowed the release application only in respect of the part of the shop while learned Lower Appellate Court allowed the said application for whole of the shop. This Court, in its supervisory and revisional jurisdiction, has to see if impugned orders passed by respondent Nos. 1 and 2 suffer from any illegality. From the impugned orders and other material on the record, it is clear that at present the respondent No. 3 (landlord) is running his business in a small shop of 8ft X 6 ft which is a tenanted accommodation. This Court is in agreement that the Prescribed Authority as well as the learned Additional District Judge, FTC-3, Dehradun that respondent No. 3 who owns his own shop, cannot be forced to run his business in a small tenanted accommodation. From the perusal of the copy of the release application (copy Annexure-1 to the writ petition) it is also clear that in Para-5 of the said application, it has been mentioned that the respondent No. 3 has no sufficient place to keep rashion and other goods in the shop, presently occupied by him. That is why the learned Prescribed Authority appears to have allowed the application in part so that the petitioner can use a part of the shop in question for godown without evicting the petitioner from whole of the shop. However, learned Lower Appellate Court felt that whole of the shop deserves to be released in favour of the landlord i.e. respondent No. 3. While passing the said order Lower Appellate Court was of the opinion that the shop in question has a size of 15 ft X 15 ft only and it further felt that by dividing the shop in two parts, it will not serve the purpose of the landlord. But perusal of Annexure-2 filed with supplementary rejoinder affidavit by the petitioner, before this Court shows that width of the shop is not 15 ft, but 20 ft 6 inches. It is also clear from said map that the shop can be conveniently used by dividing it into two parts. As such the finding of Lower Appellate Court regarding the size of the shop is against the record and evidence adduced by the parties.
7. Learned Counsel for the respondent No. 3 argued that the shop in question cannot be partitioned as the Rule 16 (1) (d) of U.P. Urban Building (Regulation of Letting, Rent and Eviction) Rules, 1972 is applicable only to the residential building. This Court is of the view that the above rule framed under U.P. Act 13 of 1972 is directory in nature. Secondly, if to meet the ends of the justice and the shop can conveniently be partitioned, the release of the shop in part cannot be said to be against the law. An Authority who has power to grant a whole relief has also the power to grant part of relief, to the extent the parties entitled. Learned Lower Appellate Court should have given due importance to the spot inspection recorded by the Prescribed Authority. In the facts and circumstances of the case in the opinion of this Court, learned I Prescribed Authority has rightly disposed of the release application by allowing it partly.
8. On behalf of the petitioner, learned Counsel drew my attention to the copies of the House Tax Assessment Register (copies at pg 62, 64 and 66 of the record of the writ petition) relating to the shop owned by the wife of respondent No. 3, and argued that the said shop owned by wife of the respondent No. 3 was vacant. However, perusal of these documents read with the affidavits shows, that the shop was let out by the wife of respondent No. 3 to one Somesh Verma sometime around 1985 and not immediately before the present release application as suggested by learned Counsel for the petitioner. Otherwise also merely for the reason that the wife of respondent No. 3 has let out her shop to someone cannot deprive him from seeking release of his own shop.
9. Lastly my attention was drawn to the Clause 4 (a) Sub-rule 2 of Rule 16 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972, and it is argued that since the petitioner’s shop is being run since 1931 as such due weightage should have been given to the petitioner before the release application is allowed in favour of the respondent No. 3. The said rule is directory in nature and merely on account of that it cannot be said if tenant occupying the building since long cannot be evicted forever. The Sub-rule 2 of Rule 16 of U.P. Urban Building (Regulation of Letting, Rent and Eviction) Rules, 1972 only provides guideline. Learned Prescribed Authority has given due weightage to this fact after doing spot inspection, and that is why shop has been released only in part.
10. In the circumstances, for the reasons as above, this Court is of the view that the impugned order dated 24.4.1997 passed by learned Prescribed Authority suffers from no illegality, while the impugned order dated 20.12.2002 passed by learned District Judge, FTC-3, Dehradun is based on the finding regarding the size of the shop on presumptions and against the record. Learned Lower Appellate Court has ignored the petitioner’s hardship by vacating him from the whole of the shop. As such the impugned order dated 20.12.2002 is liable to be quashed. Accordingly, the writ petition deserves to be allowed in respect of the impugned order dated 20.12.2002 only. The writ petition is allowed in part. The impugned order dated 20.12.2002 passed by respondent No. 1 is quashed but the impugned order dated 24.4.1997 passed by respondent No. 2 is upheld. The petitioner is allowed to vacate the part of the shop as directed by the Prescribed Authority within a period of one month from today. No order as to costs.