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1977 DIGILAW 491 (ALL)

Kedar Nath Gupta v. Basanti Devi

1977-09-20

M.P.SAXENA

body1977
JUDGMENT M.P. Saxena, J. - This is a tenant's petition arising out of proceedings under section 21 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter called the Act). 2. Smt. Basanti Devi, opposite party No. 1 is the owner and landlady of house No. 67/30 Daulatganj, Kanpur. It consists of the ground floor, first floor, second floor and the third floor. The landlady occupies the first floor while the entire ground floor, second floor and the third floor were occupied by the petitioner and his brother Jagannath Gupta as tenants. The landlady moved an application under section 21 of the Act for release of the tenanted portion on the ground of her bona fide need. According to her, she has become old and has no male issue. She has got her daughter's son to look after her and has also performed his marriage. She has executed a will in his favour in respect of her entire property. She, therefore, gave out that she needed additional accommodation for her daughter's son and his wife. She also claimed the benefit of Explanation (iv) to Section 21(1)(a) of the Act, as it existed, at that time. Jagannath Gupta, brother of the petitioner, did not put in his appearance before the Prescribed Authority. The application was contested by the petitioner alone mainly on the grounds that she has no bona fide need ; that Explanation (iv) is not applicable to the case and that the portion in possession of the landlady is quite sufficient to meet her requirements. 3. After going through the material on the record the learned Prescribed Authority came to the conclusion that Explanation (iv) to Section 21 of the Act is applicable to the facts of the case and as such the landlord is entitled to the benefit of this Explanation. Accordingly the release application was allowed. 4. The petitioner filed an appeal under section 22 of the Act and the learned III Additional District Judge, Kanpur, agreeing with the findings of the Prescribed Authority, dismissed it. 5. The tenant has, therefore, filed this writ petition. There is no controversy that the entire building consists of ground floor, first floor, second floor and third floor. There is also no dispute that the entire fiat floor is in possession of the landlady and the remaining part of the building is in possession of the tenants. 5. The tenant has, therefore, filed this writ petition. There is no controversy that the entire building consists of ground floor, first floor, second floor and third floor. There is also no dispute that the entire fiat floor is in possession of the landlady and the remaining part of the building is in possession of the tenants. Only two questions arise for determination in this case. Firstly, whether the Explanation (iv), as it stood prior to the amendment of the Act, was applicable to this case and, Secondly, whether comparison of hardship of the landlord and the tenant had to be done. So far as the first question is concerned, the Prescribed Authority and the learned District Judge came to the conclusion that Explanation (iv) applies because the stair case on the ground floor is from the common passage and it opens in the court-yard on the first floor which is in occupation of the landlady. They also held that there is another staircase in the open court-yard of the first floor which goes to the second floor in the portion let out to the petitioner and his brother. In my judgment the learned Additional District Judge did not dispose of this question in the light of Explanation (iv) which reads : "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, shall be conclusive to prove that the building is bona fide required by the landlord." The question when a building under tenancy shall be deemed to be a part of a building the remaining part whereof is in occupation of the landlord for residential purposes, has been the matter of discussion in a number of cases. At the time of the learned III Additional District Judge decided the appeal he did not have the benefit of these cases. They are Abdul Wahab v. D.J. Meerut, 1977 (1) R.C.R. 625, Chunno Lal v. Second Additional District Judge, 1975 A.W.C. 390 and Mohd Shafi v. VII Additional District and Sessions Judge, AIR 1977 Supreme Court 836. At the time of the learned III Additional District Judge decided the appeal he did not have the benefit of these cases. They are Abdul Wahab v. D.J. Meerut, 1977 (1) R.C.R. 625, Chunno Lal v. Second Additional District Judge, 1975 A.W.C. 390 and Mohd Shafi v. VII Additional District and Sessions Judge, AIR 1977 Supreme Court 836. The test laid down in all these cases is that where a superstructure consists of two or more tenaments and each tenament has independent unit distinct and separate from the other the Explanation would be of no application because each tenament would be a unit and not part of a unit. It is only where there is a unit of accommodation out of which part is under tenancy and the remaining part is in the occupation of the landlord that the Explanation would be attracted. To determine the applicability of the Explanation the question to be asked would be whether the accommodation under tenancy and the accommodation in the occupation of the landlord together constitute one unit of accommodation. The object of the legislature clearly was that where there is a single unit of accommodation of which a part has been let out to the tenant the landlord who is in occupation of the remaining part should be entitled to recover possession of the part let out to the tenant. This question may be decided in the light of the amenities shared by the landlord and the tenant. In the instant case the learned III Additional District Judge has not decided the applicability of Explanation (iv) from this point of view and his order suffers from manifest error of law. 6. Another legal error apparent from the judgment is that after coming to the conclusion that Explanation (iv) applies the Prescribed Authority and the learned District Judge did not feel the necessity of comparing the relative hardship of the landlord and the tenant. 6. Another legal error apparent from the judgment is that after coming to the conclusion that Explanation (iv) applies the Prescribed Authority and the learned District Judge did not feel the necessity of comparing the relative hardship of the landlord and the tenant. On this point also it has been held in the case of Smt. Smriti Marthand v. District Judge, Kumaun, Nanital, AIR 1977 Supreme Court 1483, that Section 21 has been amended retrospectively by addition of proviso requiring consideration of comparative hardship of the landlord and the tenant in the light of rule 16 as framed under the Act and this comparative hardship must be taken into account notwithstanding the fact that the case fell under Explanation (iv) to Section 21. Therefore, if the learned District Judge came to the conclusion that Explanation (iv) is applicable he should have compared the relative hardship of the landlord and the tenant. In the circumstances the appeal will have to be reheard by the learned District Judge who will first decide whether Explanation (iv), as it stood before amendment, was applicable to this case and then compare the hardship of the landlord 4nd the tenant and decide it in its light. 7. In the result the writ petition is allowed and the order dated 21.10.1974 passed by the learned III Additional District and Session Judge, Kanpur is set aside. He is directed to register the appeal at its original number and dispose it of according to law keeping in view the observations made above. Costs on parties.