Om Prakash Vs. Bhagwan Das [1986] INSC
31 (10 March 1986)
SEN, A.P. (J) SEN, A.P. (J) RAY, B.C. (J)
SINGH, K.N. (J)
CITATION: 1986 AIR 1643 1986 SCR (1) 598 1986
SCC (2) 428 1986 SCALE (1)1278
ACT:
U.P. Urban Buildings (Regulation of Rent and
Eviction) Act 1972 & U.P. Urban Buildings (Regulation of Letting, Rent
& Eviction) Rules, 1972, s. 21(1) (a) 4th Proviso/Rule 16(1)(f) - Landlord
seeking ejectment of tenant on bona fide need -Landlord offering reasonable,
suitable accommodation to tenant- Landlord's claim to eviction to be considered
liberally.
HELD:
The Prescribed Authority, Varanasi and the
Second Additional District Judge, in revision, after considering the
comparative hardship likely to be caused to the tenant and the landlord,
allowed the application of the appellant - landlord under s. 21(1)(a) of the
U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 on
the ground that the need of the appellant-landlord was bona fide and he was
entitled to the release of the demised premises.
The Authorities also held that since the
appellant was living in the rented premises, there was no reason why he should
be deprived of the beneficial enjoyment of his own property. However, in the
appeal, the High Court set aside the orders passed by the aforesaid two
Authorities.
Allowing the appeal, ^
HELD : 1. There was no infirmity in the order
of the Prescribed Authority or that of the learned II Additional District
Judge. The High Court was clearly in error in interfering with the order passed
by the Prescribed Authority, Varanasi and that of the II Additional District
Judge, Varanasi. The judgment and order of the High Court are, therefore, set
aside. The order of the Prescribed Authority, Varanasi and that of the II
Additional Judge, Varanasi directing the release of the accommodation under
s.21 (1)(a) of the Act are restored. [601 D; 601 H] 599
2. One of the factors prescribed by r. 16
(1)(f) is that if the landlord applies for ejectment of the tenant on the
ground that the accommodation is bona fide required by him for his use and the
members of his family and if the landlord offers reasonably suitable
accommodation to the tenant for the needs of his family, the landlord's claim
for eviction shall be considered liberally. [601 B] In the instant case, the
refusal of the application of the landlord under s.21 (1)(a) of the Act would
undoubtedly cause greater hardship to him as that would deprive of his
beneficial enjoyment of his own property. In such a case, it could not be said
that the landlord had not fulfilled the requirement of the 4th proviso to
s.21(1)(a) of the Act.[601 D]
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 959
of 1986.
From the Judgment and Order dated 1.5.1985 of
the Allahabad High Court in C.M.W.P. No. 11377 of 1980.
R.B. Mehrotra for the Appellant.
Sunil Ambwani and Mukul Mudgal for the
Respondent.
The Judgment of the Court was delivered by
SEN, J. After hearing learned counsel for the parties, we are satisfied that
the High Court, in the facts and circumstances of the case, was clearrly in
error in interfering with the order passed by the Prescribed Authority,
Varanasi and that of the II Additional District Judge, Varanasi by which they
allowed the application made by the appellant under s. 21(1) (a) of the U.P. Urban
Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. Although the
Authorities on a consideration of the evidence came to the conclusion that the
need of the landlord was bona fide and he was entitled to the release of the
demised premises under s. 21(1) (a) of the Act.
Admittedly, the appellant and the respondent
are displaced persons and the authorities held that since the appellant was
living in rented premises there was no reason why he should be deprived of the
beneficial enjoyment of his own property.
600 In Bhaichand Ratanshi v. Laxmishanker
Tribhovan, [1981] 3 S.C.C. 502 this Court interpreting the analogous provisions
in s. 13 (1) (g) of the Bombay Rents, Hotel and Lodging House Rates Control
Act, 1947 observed :
"The Legislature by enacting Section 13
(2) of the Act seeks to strike a just balance between the landlord and the
tenant so that the order of eviction under Section 13 (1) (g) of the Act does
not cause any hardship to either side. The considerations that weigh in striking
a just balance between the landlord and the tenant were indicated in a series
of decisions of the Court of Appeal, interpreting an analogous provision of the
Rent and Mortgage Interest Restrictions (Amendment) Act, 1933 (c.32), Section 3
(1), Schedule I, para (h) : Sims v. Wilson, [1946] 2 All E.R. 261; Fowle
v.Bell, [1946] 2 All E.R. 668;
Smith v. Penny, [1946] 2 All E.R. 672;
Chandler v. Strevett, [1947] 1 All E.R. 164; and Kelley v. Goodwin, [1947] 1
All E.R.810. One of the most important factors in considering the question of
greater hardship is whether other reasonable accommodation is available to the
landlord or the tenant. The court would have to put in the scale other
circumstances which would tilt the balance of hardship on either side, including
financial means available to them for securing alternative accommodation either
by purchase or by hiring one, the nature and extent of the business or other
requirement of residential accommodation, as the case may be. It must, however,
be observed that the existence of alternative accommodation on both sides is an
important but not a decisive factor.
On the issue of greater hardship the English
Courts have uniformly laid down that the burden of proof is on the tenant. We
are inclined to the view that on the terms of Section 13 (2) of the Act, the
decision cannot turn on mere burden of proof, but both the parties must lead
evidence.
The question whether or not there would be
greater hardship caused to the tenant by passing the decree must necessarily depend
on facts and circumstances of each case." 601 A plain reading of s. 21
(1)(a) of the Act read with the 4th proviso thereto and r. 16 (1)(f) shows that
the scheme under the Act is the same. One of the factors prescribed by r. 16
(1)(f) is that if the landlord applies for ejectment of the tenant on the
ground that the accommodation is bona fide required by him for his use and the
members of his family and if the landlord offers reasonably suitable
accommodation to the tenant for the needs of his family, the landlord's claim
for eviction shall be considered liberally. In the present case, the Prescribed
Authority and the II Additional District Judge both, after considering the
comparative hardship likely to be caused to the tenant and the landlord, recorded
a finding that on the refusal of the application, the landlord would be put to
greater hardship.
There was no infirmity in the order of the
Prescribed Authority or that of the learned II Additional District Judge. The
refusal of the application of the landlord under s. 21 (1) (a) of the Act would
undoubtedly cause greater hardship to him as that would deprive of his
beneficial enjoyment of his own property. In such a case, it could not be said
that the landlord had not fulfilled the requirement of the 4th proviso to s.
21(1) (a) of the Act. The High Court obviously committed an error in
interfering with the findings of the Prescribed Authority and the learned II
Additional District Judge on the ground that the landlord had failed to fulfill
the requirements of the 4th proviso to s. 21 (1) (a) of the Act.
We wish to record that Shri R.B.Mehrotra
learned counsel for the appellant made an offer that the rented premises in
occupation of the appellant may be given to the respondent who is his tenant in
exchange. We think that this was a very reasonable offer and should be
accepted. Shri Sunil Ambwani, learned counsel appearing for the respondent
stated that the respondent was not agreeable to his proposal. We, therefore,
heard the parties on merits.
In the view that we take, the appeal must
succeed and is allowed. We set aside the judgment and order of the High Court
and restore that of the Prescribed Authority, Varanasi and that of the II
Additional District Judge, Varanasi directing the release of the accommodation
under s. 21 (1) (a) of the Act. We direct that the Prescribed Authority, Varanasi shall 602 on an application being made by the parties, allot the rented premises
occupied by the appellant in favour of the respondent with the consent of the
landlord. If no such consent is forthcoming, the Prescribed Authority shall
allot a reasonably suitable alternative accommodation to the respondent for his
occupation on such terms as he may deem fit.
We further direct that the order of eviction
shall not be executed for six months in the event the respondent furnishes
usual undertaking within four weeks from today.
Both the parties shall, in the meantime, move
to the Prescribed Authority, Varanasi, for permission to exchange their
respective premises on the terms set out above.
No costs.
M.L.A. Appeal allowed.
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