Bhola Shanker v. 5th Additional District Judge — 1980 DIGILAW 508 (ALL)

ORDER A.N. Varma, J. -This petition was first taken up for hearing on 1-2-1980. Upon the conclusion of arguments I dictated the judgment in court, allowing the petition and remanding the ease to the Vth Additional District Judge, Aligarh directing him to dispose of the case after comparing the relative hardship likely to be caused to the tenant from the grant of the application filed by the landlord under Section 21 (1) of U. P. Act No. XIII of 1972 with that of the landlord. However, before I could sign the judgment, two authorities were brought to my notice, namely, 1977 All LR 228 : (AIR 1977 NOC 317) Jhandu Singh v. District Judge Futehpur) and 1978 (UP) RCC 270 Rajesh Dayal v. District Judge both of which were directly on the point. I, therefore, directed the petition to be listed for rehearing. The petition was, thereupon, listed and counsel for both the parties re-argued the petition. 2. Having heard learned counsel for the parties, I find myself in agreement with the view expressed by this court in the aforesaid two cases. 3. In order to appreciate the controversy the relevant facts may he set out :is follows:- 4. The petitioner is the tenant and the respondents Nos. 3 to 6 are the landlords of the accommodation in dispute. The landlords filed a composite application under Clauses (a) and (b) of S. 21 (1) of the U. P. Act No. XIII of 1972 for the release of the accommodation on the ground that they bona fide required the accommodation for being occupied by themselves as well as for demolishing it and reconstructing it thereafter- The application was contested by the petitioner on the ground that the accommodation did not require to be demolished and reconstructed and that the petitioner in any ease would suffer much greater hardship than the landlord. 5. The Prescribed Authority held that the landlords did not bona fide require the accommodation in dispute for being occupied by them and, that therefore, they had no ease under Cl. (a) of S. 21 (1). The Prescribed Authority also compared the relative hardship likely to be caused to the two parties and came to the conclusion that the petitioner would suffer greater hardship than the landlord if the petitioner is evicted from the accommodation in dispute. 6. (a) of S. 21 (1). The Prescribed Authority also compared the relative hardship likely to be caused to the two parties and came to the conclusion that the petitioner would suffer greater hardship than the landlord if the petitioner is evicted from the accommodation in dispute. 6. The Prescribed Authority then entered into the question whether the building was required to be demolished and reconstructed. He came to the conclusion that having regard to the dilapidated state of the building, it must be held to be required for being demolished and reconstructed. The Prescribed Authority therefore, allowed the application of the landlords under Cl. (b) of Section 21 (1). 7. Aggrieved by the order passed by the Prescribed Authority, the petitioner filed an appeal which has been dismissed by the learned Vth Additional District Judge. The learned District Judge has held that the building in question is required for being demolished and reconstructed and on that ground he dismissed the petitioners appeal. 8. Counsel for the petitioner has submitted only one point for my consideration, namely, that the 4th proviso to Section 21 (1) of the aforesaid Act enjoins the authorities to compare the hardship likely to be caused to the tenant from the grant of the application with the hardship likely to be suffered by the landlord by the refusal of the same in every case, including the one covered by Cl. (b) of Section 21 (1) and that, inasmuch as, the learned District Judge has not compared the relative hardship likely to be caused to the two parties, the order passed by the learned District Judge is clearly unsustainable in law. Counsel for the landlord, on the other hand urged that the said proviso was not applicable to a case covered by Cl. (b) of Section 21 (1). Counsel contended that the proviso was attracted to a case covered by Cl. (a) only of S. 21 (1). In support counsel for the landlord placed reliance on the aforesaid decision, which, it was urged, directly covered the controversy. 9. Having given the matter my best consideration I am clearly of the view that the 4t'n proviso to S. 21 (1) cannot apply to a case which is covered by Cl. (b) of S. 21 (1). 10. In support counsel for the landlord placed reliance on the aforesaid decision, which, it was urged, directly covered the controversy. 9. Having given the matter my best consideration I am clearly of the view that the 4t'n proviso to S. 21 (1) cannot apply to a case which is covered by Cl. (b) of S. 21 (1). 10. The argument of counsel for the petitioner was that the 4th proviso, on its plain language, did not warrant the conclusion that it was limited in its application to a case covered by Cl. (a) only. That being so, it must be held that the proviso covered both the Cls. (a) and (b) of Section 21 (1). As regards the two decisions cited above, the argument was that neither of these two decisions contained any discussion as to why the 4th proviso must be held to be limited to a case covered by Cl. (a) only. The submission, therefore, was that the said decisions were no authorities on the points canvassed by me. 11. In order to appreciate the controversy, it is necessary to set out the background in which the 4th proviso was brought on the statute book. Section 21 (1) provides that the Prescribed Authority may, on an application of the landlord made in that behalf order the eviction of a tenant if it is satisfied that any of the grounds mentioned in Cls. (a) and (b) exists. Clause (a) deals with the case where the building under tenancy is bona fide required for occupation by the landlord himself or any member of his family, while Cl. (b) deals with a case where the building is in a dilapidated condition and is required for the purposes of demolition and new constructions. Rule 16 of the rules framed under the aforesaid Act, however, provided that in considering the personal requirements of the landlord under Section 21 (a), the authorities were bound 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 same and for the purposes of that comparison, the said rule laid down certain tests and guidelines. The vires of this Rule came under attack in some cases on the ground that the provisions of the rule for comparing the relative hardship were wholly inconsistent with S. 21 (a) which provides for consideration of the need of the landlord only. The objection was up held by a Full Bench of this court in the case of Chandra Kumar Shah v. District Judge Varanasi (1976 All LR 95 : (1976 All LJ 226)), and it was held that Rule 16 was ultra vires. 12. The Legislature promptly intervened and enacted U. P. Act No. 28 oi 1976 introducing various amendments in the Act, including insertion of the 4th Proviso to Section 21 (1). I have no doubt that the 4th proviso was added in order specifically to save the validity of R. 16. Now Rule 16 is expressly limited to the cases covered by Cl. (a) to S. 21. Both the sub-rules of R. 16 deal only with the cases where the building under tenancy is required by the landlord for occupation by himself or the members of his family, for purposes of residence or for purposes of any profession, trade or calling, that is, Rule 16 deals only with the cases covered by Cl. (a) of S. 21 and not Cl. (b). Viewed, therefore, in the background of its legislative history the 4th proviso to S. 21 (1) must be held to apply to cases covered by Cl. (a) only. 13. Furthermore, it is scarcely necessary to emphasise that the proviso must be read along with the main enactment, namely, S. 21 (1). It cannot be read in isolation. Indeed, no provision of a statute ought to be read in isolation; less so a proviso to an enactment. In order to ascertain the true legislative intendment behind an enactment, it is appropriate to have regard to the entire scheme underlying the enactment. If, therefore, the proviso is read along with S. 21 (1) it would clearly follow that the 4th proviso enjoins comparison of the likely hardship only in cases covered by clause (a). For, if the (element of the personal requirements of the landlord does not enter into the adjudication, as in the case of an application covered by Cl. (b), the question of comparing the likely hardship to the tenant cannot possibly arise. 14. In a case covered by Cl. For, if the (element of the personal requirements of the landlord does not enter into the adjudication, as in the case of an application covered by Cl. (b), the question of comparing the likely hardship to the tenant cannot possibly arise. 14. In a case covered by Cl. (b) the authorities are concerned only with the state of the building and its requirement for the purposes of demolition and new construction. The element of personal requirements of the landlord for occupation by himself or any members of his family or for purposes of any profession, trade or calling in which the landlord may be or proposes to get engaged, enters into the consideration only under Cl. (a) and hence the necessity or occasion for comparing the likely hardship to the tenant with the likely hardship to the landlord No such contingency arises under Cl. (b) and, therefore, the question of applying the fourth proviso cannot arise. 15. The same conclusion flows if the problem is viewed from another angle. Where the authorities have arrived at the conclusion that the building under tenancy is in a dilapidated condition and is required for purposes of demolition and new construction, it would be illegal to refuse to grant the release of the building in favour of the landlord on the ground that the tenant would suffer greater hardship. 16. If the building has to be pulled down on account of its being in a dilapidated condition, the building must be released in the interest and safety of both the landlord and the tenant. 17. The result of the aforesaid discussion is that in a case covered by Cl. (b) to Section 21 (1) the 4th proviso to Section 21 (1) does not apply. I concur, with respect, with the views expressed by the learned Judges deciding the cases of Jhandu Singh (1977 All LR 228 : AIR 1977 NOC 317) and Rajesh Dayal (1978 (UP) RCC 270) (supra). 18. Counsel for the petitioner did not challenge the finding returned by both the courts below that the building in question is in a dilapidated condition and that it is required for being demolished and reconstructed. I have perused the said finding and find no ground to disagree. 19. There are no merits in this petition which is consequently dismissed. There will be no orders as to costs. I have perused the said finding and find no ground to disagree. 19. There are no merits in this petition which is consequently dismissed. There will be no orders as to costs. The petitioner is, however, granted three months time to vacate the accommodation in dispute. He will hand over vacant possession of the accommodation in dispute to the respondents Nos. 3 to 6 within this period.