Judgment

BHAGWATI, J.- The appellant and respondents Nos. 4 to 10 are the tenants in respect of certain premises situated in Allahabad. Respondent No. 3 who is the landlord, filed an application for eviction of the appellant and Respondents Nos. 4 to 10 from the premises in their occupation on grounds specified in Cls. (a) and (b) of S. 21, sub-s (1) of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. The claim for eviction on the ground of bona fide requirement under Cl. (a) was also based on Expln. (iv) to Section 21 of the Act. The Prescribed Authority held that both the grounds were made out by Respondent No. 3 and the case also fell within Explanation (iv) and it accordingly passed an order of eviction against the Appellants and Respondents Nos. 4 to 10. The appeal preferred by the appellant against the order of eviction was dismissed by the learned District Judge. The Appellant thereupon filed a Writ Petition in the High Court of Allahabad under Art. 226 of the Constitution of India. Two questions in the main were raised before the High Court: one was that the Explan. (iv) was inapplicable since the terms of that Explanation were not satisfied; and the other was that the comparative hardships of the landlord and the tenants was not taken into account by the learned District Judge as well as by the Prescribed Authority in passing the order of eviction, though they were required to do so by reason of R. 16 of the Rules framed under the Act. The High Court held that Expln. IV was attracted in the present case and the bona fide requirement of Respondent No. 3 must accordingly be held to be established. The High Court also held in the alternative that in any event the bona fide requirement of Respondent No. 3 was established on the evidence on record. So far as the question of comparative hardship of the landlord and the tenant was concerned, the High Court took the view, following its Full Bench Decision in Chandra Kumar Shah v. District Judge, 1976 All WC 50 that R. 16 Cl. (1) was ultra vires and it was not necessary to consider the comparative hardship of the landlord and the tenant. The High Court in this view rejected the Writ Petition. Hence the present appeal by special leave obtained from this Court.

2. The first question that was raised before us by the learned Counsel appearing for the Appellant was that Expl (iv) was wrongly held to be applicable by the learned District Judge as well as by the Prescribed Authority. He submitted that this Explanation was not attracted in the present case. He also contended that apart altogether from the question as to whether Expl. (iv) was on its terms applicable, this Explanation did not fall for consideration, since it was repealed by S. 14 (i) (c) (2) of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) (Amendment) Act, 1976. This contention would have required some consideration but it was conceded on behalf of Respondent No. 3 that in view of its omission by the Amending Act, Expl. (iv) was out of the way and it was not necessary to consider whether it had any application in the present case. But the question still remains whether the High Court was right in refusing to consider the comparative hardship of the landlord and the tenant under Rule 16 (1). That would have raised a question as to the correctness of the Full Bench Judgment in C. K. Shahs case (supra) but we find that by the Amending Act. Section 21 has been amended with retrospective effect by introduction of a proviso which is in the following terms:

"Provided also that the prescribed authority shall, except in cases provided for in the Explanation, take into account the likely hardship to the tenant from the grant of the application as against the likely hardship to the landlord from the refusal of the application and for that purpose shall have regard to such factors as may be prescirbed".

In view of this proviso, it is now obligatory on the Prescribed Authority and t