Sudha Agrawal
Vs. Xth Addl. District Judge [1999] INSC 242 (4 August 1999)
V.N.Khare,
Syed Shah Mohammed Quadri V.N. KHARE, J.:
The
appellant herein is the landlord of the premises in dispute. The premises
consists of ground floor and first floor. The respondent-tenant is in
occupation of the said premises. The ground floor of the premises is being used
by the tenant for non-residential purposes, whereas the first floor is being
used for residential purpose. The appellant-landlord filed an application before
the Prescribed Authority, Varanasi, for
eviction of the respondent-tenant on the ground that he required the premises
for his bona fide need. In the said application, the landlord also took a plea
that the son of respondent-tenant who was ordinarily residing with him has
constructed a residential premises in the city of Varanasi, and as such under
explanation (i) to fourth proviso of sub-section (1) of Section 21 of the U.P.
Urban Buildings (Regulation of Letting, Rent & Eviction) Act, 1972
(hereinafter referred to as the Act), the tenant besides being debarred from
contesting the application, his need has to be presumed bona fide. A written
statement was filed by the respondent tenant wherein the allegations made in
the application were denied. The Prescribed Authority took the view that since
the premises was let out to the tenant partially for non-residential purposes
and partially for residential purposes, the benefit of explanation (i) to
fourth proviso of sub-section (1) of Section 21 of the Act is not available to
the landlord. The prescribed authority also found that the need set up by the
landlord is not bona fide. Consequently, the application for eviction of the
tenant from the premises was rejected by the Prescribed Authority.
Aggrieved,
the landlord-appellant preferred an appeal which was dismissed by the appellate
authority affirming the finding of the Prescribed Authority. The writ petition
filed by the landlord has also been dismissed by the High Court.
It is
urged by the counsel appearing on behalf of the appellant that in view of
explanation (i) to fourth proviso of sub-section (1) of Section 21 of the Act,
not only that the tenant was debarred from contesting the application filed by
the landlord, but also the need set up by the landlord in the said application
has to be presumed bona fide. Learned counsel appearing for the tenant,
however, argued that in the present case, explanation (i) to fourth proviso of
sub-section (1) of Section 21 of the Act is not attracted and in any case, even
if it is held that the explanation (i) is applicable in the present case, the
landlord independently has to prove that his need is bona fide and the alleged
need set out in the application cannot be presumed to be bona fide.
After
we heard the learned counsel for the parties, we assume for the sake of the
argument that explanation (i) to fourth proviso of sub-section (1) of Section
21 of the Act is available to the appellant landlord without deciding the
question whether explanation (i) is applicable to the present case or not. For
appreciating the arguments of learned counsel for the parties, it is necessary
to set out the relevant provisions, which are extracted herein below :- Section
21(1)(a) - that the building is bona fide required either in its existing form
or after demolition and new construction by the landlord for occupation by
himself or any member of his family, or any person for whose benefit it is held
by him, either for residential purposes or for purposes of any profession,
trade or calling, or where the landlord is the trustee of a public charitable
trust, for the objects of the trust;
Fourth
proviso to sub-section (1) of Section 21 - 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 prescribed.
Explanation
(i) to fourth proviso of sub- section (1) of Section 21 - In case of a
residential building :- where the tenant or any member of his family(who has
been normally residing with or is wholly dependent on him) has built or has
otherwise acquired in a vacant state or has got vacated after acquisition a
residential building in the same city, municipality, notified area or town
area, no objection by the tenant against an application under this sub-section
shall be entertained.
A
perusal of Section 21(1)(a) shows that a landlord can succeed in his
application for eviction of a tenant if he establishes before the Prescribed
Authority that his need for the premises is bona fide. Fourth proviso of
Section 21(1) provides that the Prescribed Authority, while considering the bona
fide requirement of the landlord has also to 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 excepting in cases
provided for in explanation (i).
Explanation
(i) provides that where the tenant or any member of his family who is normally
residing with him or wholly dependent on him has built or has otherwise
acquired in a vacant state or has got vacated after acquisition a residential
building in the same city, no objection by the tenant against an application
under this sub-section shall be entertained. The aforesaid provisions extracted
above show that in cases where explanation (i) is applicable no presumption can
be raised with regard to the need of the landlord as bona fide. The only effect
of application of explanation (i) is that the tenant is not entitled to contest
the application filed by the landlord and the Prescribed Authority is not
required to compare the hardship of the landlord with that of the tenant which
he otherwise required to do under fourth proviso of Section 21(1) of the Act.
We have noticed earlier that the landlord can get an order of release in his favour
only when he proves his need as bona fide before the Prescribed Authority. It
is no doubt true that the application of landlord is uncontested as the tenant
is out of field, still the landlord has to establish his bona fide need. In
fact the landlord is required to stand on his own legs and he cannot derive any
advantage of absence of defence of the tenant. The proceedings before the
Prescribed Authority is like a uncontested suit, where there is no defence of
the defendant. In such a suit plaintiff in order to get decree must prove his
case to the satisfaction of the Court.
Applying
the said principle to the present case, we have no doubt in our mind that, by
application of explanation (i) the landlord is not discharged from the burden
of proving his need as bona fide. Further we also do not find any provision in
the Act creating any presumption in favour of the landlord as regard his need
as bona fide.
This
view of ours finds support from the provision contained in Sections 12 and 16
of the Act. Section 12 provides the contingency when a building shall be deemed
to have fallen vacant. Sub-section (3) of Section 12 provides that in case of a
residential building if the tenant or any member of his family builds or
otherwise acquires in a vacant state or gets vacated a residential building in
the same city, municipality, town, notified area or town area in which the
building under tenancy is situate, he shall be deemed to have ceased to occupy
the building under his tenancy. Section 16 provides that a landlord can apply
to the District Magistrate for release of the premises which has fallen or
deemed to have fallen vacant if the premises is bona fide required. Thus, in
cases where the premises has fallen vacant or deemed to have fallen vacant, the
landlord necessarily has to apply before the appropriate authority for release
of the premises in his favour and he can get an order of release of the
premises only when he satisfies the Prescribed Authority in respect of his bona
fide requirement for the premises. If explanation (i) to fourth proviso of
Section 21(1)(a) is to be read as creating presumption in favour of the
landlord in respect of the requirement of landlord as bona fide, in that event
the said explanation would come into conflict with Section 16 of the Act. It is
well known rule of interpretation that a provision of a statute is required to
be interpreted in such a manner which may avoid possible conflict in various
provisions of a statute.
In
view of the legal position discussed above, we find that there is no
presumption in favour of the landlord that his need is bona fide by virtue of
application of explanation (i) to fourth proviso of sub-section (1) of Section
21 of the Act and the landlord has to allege and prove his requirement as bona
fide in order to evict the tenant from the premises. In the present case,
concurrent finding of fact has been recorded by the courts below that the need
of the landlord was not bona fide. Such a finding cannot be interfered with in
this appeal. We, therefore, find no merit in these appeals. The appeals are
accordingly dismissed. There shall be no order as to costs.
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