Prem Chand Vs. District Judge,
Dehradun & ANR  INSC 295 (23 November 1976)
FAZALALI, SYED MURTAZA
CITATION: 1977 AIR 364 1977 SCR (2) 170 1977
SCC (1) 254
U.P. Urban Buildings (Regulation of Letting,
Rent and Eviction) Act 1972, s. 21(1) Explanation (iv), presumption of bonafide
requirement when applicable--Whether shop run in residential building converts
it into non-residential.
The appellant was a tenant occupying two
rooms in the residential house of respondent No. 2. He used one room for living
purposes and the other as a tailoring shop. The landlady brought a suit for his
eviction on the ground of personal requirement. but the same was dismissed by
the District Magistrate. An appeal to the District Judge Dehradun was allowed,
and Explanation (iv) to s. 21(1) of the U.P. Urban Buildings (Regulation of
Letting, Rent and Eviction) Act, 1972 was held applicable. The view was upheld
by the High Court in petition filed by the appellant who contended that due to
his shop the house under tenancy had ceased to be a residential building and
that Explanation (iv) was not applicable. The High Court rejected the petition.
Dismissing the appeal, the Court
HELD: Explanation (iv) provides a conclusive
and irrebuttable presumption of bona fide requirement once the conditions
mentioned therein are established. The tests for application of Explanation
(iv) are as follows:
(1) The building should be a residential
building; and (2) The landlord must be in occupation of a part of the building
for residential purposes, the other part being in the occupation of the tenant.
If the above two tests are fulfilled in a
case, there is no need for the landlord to establish any other requirement.
[172F-H] (2) The fact that a tailoring shop
is run in one of the rooms is not sufficient to convert what otherwise to all
intents and purposes is a residential building, into a nonresidential building.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 1043 of 1976.
Appeal by Special Leave from the Judgment and
Order dated 9-3-1976 of the Allahabad High Court in Civil Misc., Petn. No.
K.P. Kapur and A.L. Trehan, for the
S.C. Agrawal and M.M.D. Srivastava, for
respondent No. 2.
The Judgment of the Court was delivered by
GOSWAMI, J.--This appeal by special leave is by the tenant (to be described
hereinafter as the appellant) and is directed against the judgment of the High
Court of Allahabad in a writ petition at his 171 instance which was dismissed.
The District Judge, Dehradun, who had earlier dismissed his appeal, has been
impleaded as respondent No. 1.
The facts may briefly be stated:
The appellant is admittedly the tenant under
the 2nd respondent (to be described herinafter as the respondent) in respect of
two rooms of House No. 11, Rajput Road, Dehradun.
This house has four rooms of which only two
rooms are in occupation of the appellant. The other two rooms are in occupation
of the respondent whose two sons stay there; the eider one living with his
wife. The respondent is an old lady with an ailing husband and wants to have
vacant possession of the two rooms so that the entire family can reside at the
same place. With that end in view, on June 22, 1972, the respondent filed an
application under section 3 of the United Provinces (Temporary) Control of Rent
and Eviction Act, 1947 (U.P. Act No. III of 1947) for permission to bring a
suit against the appellant for his eviction on the ground of bona fide personal
requirement. During the pendency of this application before the Rent Control
and Eviction Officer, the U.P. Urban Buildings (Regulation of Letting, Rent and
Eviction) Act 1972 (U.P. Act No. 13 of 1972) (hereinafter to be referred to as
the Act) came into force with effect from July 15, 1972, repealing the earlier
Act of 1947 with certain savings as mentioned in section 43 of the Act.
As a consequence of enforcement of the Act
the proceedings under section 3 that were pending under the earlier Act
converted into one under section 21 of the new Act (U.P. Act No. 13 of 1972).
The prescribed authority (The Additional District Magistrate) rejected the
application. The respondent then preferred an appeal to the District Judge,
Dehradun, who allowed the same on the ground of bona fide requirement relying
on the sole ground that Explanation (iv) to section 21(1) of the Act was
applicable to the facts of the case. The appellant being aggrieved by the order
of 'the District Judge preferred a writ application before the High Court
which, as stated earlier, was disallowed.
Before we deal with the question of law
raised in this appeal we may note the findings of fact reached by the District
Judge. The District Judge found as follows :-"It will appear that the
house in question is a residential building. It has been built for residential
purposes and is being primarily used therefore. Simply because the tenant is
also carrying on the business of tailoring in one of the rooms will not convert
it into non-residential building. The landlady is admittedly occupying the
remaining portion thereof." Even the prescribed authority at the first
instance had observed as follows in his order :-"I have inspected the
demised premises situated at 11, Rajpur Road, Dehradun in the presence of both
the parties. On inspection it was found that disputed house is one building fin
which one portion is in the possession of the respondent tenant. The one
portion of the building is in the occupation of the applicant for residential
purposes. The respondent has two small rooms and a very small courtyard. Out of
those two rooms each one is about 8 wide and 8 long, there is a tailoring shop
of the respondent. The other room is being used for residential purposes. The
applicant has two rooms of the same size and one additional courtyard."
The question that arises for consideration is whether Explanation (iv) of
clause (1) of section 21 of the Act has been correctly held to be applicable by
the District Judge and the High Court to the facts as found. Explanation (iv)
of section 21 (1) reads as follows :-"In the case of a residential
building-(iv) the fact that the building under tenancy is a part of a building
the remaining part whereof is in the occupation of the landlord for residential
purposes, shah be conclusive to prove that the building is bona fide required
by the landlord." It is submitted by the appellant that the building under
tenancy is not a residential building and, therefore, the condition precedent
to the application of Explanation (iv) is absent in this case. According to
counsel since the tenant is admittedly running a tailoring shop in one of the
two rooms under his occupation the house ceases to be a residential building.
We are unable to accept this submission. The
appellant has only two small rooms in which he resides with his wife, two young
sons and one daughter and although he may have a tailoring shop in one of his
rooms it is not unlikely that that very room is utilised as bed room for one or
two members of his family at night. The fact that he runs a tailoring shop in
one of the rooms is not sufficient to convert what otherwise to all intents and
purposes is a residential building into a non-residential building. The tests
for application of Explanation (iv) are as follows :-(1) the building should be
a residential building; and (2) the landlord must be in occupation of a.part of
the building for residential purposes, the other part being in the occupation
of the tenant.
If the above two tests are fulfilled in a
case it will furnish under the law a conclusive proof that the building is,
bona fide, required by the Landlord. There is no need for the landlord to
establish any other requirement. Explanation (iv) provides a conclusive and
irrebuttable presumption of bona fide requirement once the conditions mentioned
therein are established. The two tests are fulfilled in this case on the
findings of fact as noted above. We are of opinion that the District 173 Judge
was right in his finding that Explanation (iv) of section 21 (1) was applicable
which view was also later upheld by the High Court. The High Court was,
therefore, right in dismissing the writ application.
We may observe that we are not required to
consider, in this appeal, the effect of the Amendment Act 28 of 1976, which
came into force on July 5, 1976, whereby Explanation (iv) was omitted; nor has
any argument been advanced in that connection.
There is no merit in this appeal which is
We will, however, make no order as to costs.
The appellant may continue in possession of the suit premises till 30th April,
1977. He shall hand over vacant and peaceful possession thereof on May 1, 1977,
to the respondent.
M.R. Appeal dismissed.