RAKESH KUMAR JOSHI versus NARENDRA KUMAR & ORS.

Citation: [2008] 1 S.C.R. 1051 · Decided: 22-01-2008 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Case Allowed

Judgment (excerpt)

(2008] 1 S.C.R.1051 
A 
RAKESH KUMAR JOSHI 
v 
r• 
NARENDRA KUMAR & ORS. 
(Civil Appeal No. 579 of 2008) 
B 
JANUARY 22, 2008 
(S.B. SINHA AND HARJIT SINGH BEDI, JJ.) 
Rent Control & Eviction: 
~· 
.. 
c 
U.P. Urban Buildings (Regulation of Letting, Rent and 
Eviction) Act, 1972; Ss. 12(3), 16 and 21(1)(a): 
Eviction Petition - For eviction of a shop on ground of 
bona fide requirement for establishing business for family 
members - Dismissed by trial Court - Reversed by appellate 
D authority -
Challenge to - Dismissed by High Court -
Correctness of - Held: Incorrect - In regard to vacancy; legal 
fiction established in terms of s.12(3) applicable in relation to 
.., 
residential accommodation only - Although, r. 16(2) refers to 
.. 
shop premises but by reason thereof no legal fiction has been 
E created -
Under the circumstances, High Court erred in 
invoking provisions of s.12(3) of the Act and r.16 of the Rules 
while affirming order of the appellate authority - High Court 
,
should have taken into consideration the factual aspect of the 
matter and also findings of fact arrived at by the appellate 
F 
authority while dismissing the eviction petition - Matter 
remitted to High Court for consideration afresh - U.P. Urban 
..... 
Buildings (Regulation of Letting, Rent and Eviction) Rules, 
1972 - r 16 (2). 
Words and Phrases: 
G 
'Deemed vacancy of building' - Meaning of, in the context 
of s. 12 of the U. P Urban Buildings (Regulation of Letting, Rent 
)' 
and Eviction) Rules, 1972. 
Mother of respondents hal:I filed a petition for eviction 
H 
1051 
RAKESH KUMAR JOSHI v. NARENDRA KUMAR 
1052 
& ORS. 
of the suit premises, a 'shop' in terms of Section 21 (1 )(a) A 
·-r 
of the U.P. Urban Buildings (Regulation of Letting, Rent 
and Eviction) Act, 1972 against the appellant-tenants on 
.the ground of bona fide requirement for establishing a 
business for her grand son. Later, an application for 
amendment was filed by the petitioner indicating further B 
requirement of the suit premises for another family 
member. The petition was dismissed by the trial Court. 
__... 
The order of the trial Court was reversed by the appellate 
:> 
authority. Appellant-tenants challenged the decision of the 
appellate authority by filing a writ petition, which was c 
dismissed by the High Court. Hence the present appeal. 
Appellant-tenant 4fOntended that the High Court had 
failed to take into consideration that the provisions of the 
Act, upon which reliance has been placed, relate to 
residential premises and not to shop premises; and that, D 
in any event, having regard to the fact that the appellate 
:l 
court did not meet the reasonings of the Rent Control 
~· 
Authority, the High Court should ha1e interfered in the 
matter. 
Respondent submitted that although s. 12(3) and s. E 
16 of the Act are not applicable in the instant case but in 
view of r. 16(2) of the Rules, the decision of the appellate 
court must be held to have been rendered on correct 
premise. 
F 
Allowing the appeal, the Court 
HELD: 1.1 By reason of sub-Section (3) of s. 12 of 
the U.P. Urban Buildings (Regulation of Letting, Rent and 
Eviction) Act, 1972, a legal fiction has been created. Such 
a legal fiction in regard to the vacancy is to be applied in G 
·'(_ 
relation to residential accommodation only and not in 
" 
relation to shop premises. Rule 16(2) of the U.P. Urban 
Buildings (Regulation of Letting, Rent and Eviction) Rules, 
1972 although refers to the shop premises, by reason 
thereof no legal fiction has been created. The said Rule H 
1053 
SUPREME COURT REPORTS 
[2008] 1 S.C.R. 
A merely provides for certain factors which are required to 
,.., 
be taken into consideration while considering an 
application for release under Clause (a) of sub-Section 
(1) of Section 21 of the Act. (Para - 9) [1059-0, E] 
B 
1.2 The High Court referred to Rule 16(2) of the Rules 
but the effect and purport thereof had not been taken into 
consideration. The Rules have a limited application. 
Applicability of the Rules would undoubtedly depend 
).. 
upon the fact situation obtaining in each case. The court 
'-
is required to apply its mind upon the materials brought 
c on record in determining the issues. (Para -
10) 
[1059-F, G] 
2. The High Court clearly erred in invoking the 
provisions of ss. 12(3) and 16 of the Act. The Writ Petition, 
D therefore, could not have been dismissed on the premise. 
thats. 12(3), s. 16 of the Act and r. 16 of the Rules would 
.be a

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